65.028 Public-private partnership delivery method of awarding contracts for
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/ky/65-028A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
capital construction projects -- Kentucky Local Government Public-Private
Partnership Board.
(1)As used in this section:
(a)"Best value" has the same meaning as in KRS 65.025;
(b)"Cabinet" means the Finance and Administration Cabinet;
(c)"Local government" means a city, county, charter county, urban-county
government, consolidated local government, unified local government, or
local school district of the Commonwealth;
(d)"Private partner" has the same meaning as in KRS 65.025; and
(e)"Public-private partnership" has the same meaning as in KRS 65.025.
(2)A public-private partnership delivery method may be utilized by a local government
as provided in this section and administrative regulations promulgated thereunder.
Contracts using this method shall be awarded by competitive negotiation on the
basis of best value, and shall in all cases take effect only if executed by the
legislative body of the local government, which in the case of a school district shall
be the local board of education. The provisions of KRS 65.025(2) to
(4)shall not
apply to public-private partnerships utilized by local governments.
(3)A local government utilizing a public-private partnership shall continue to be
responsible for oversight of any function that is delegated to or otherwise performed
by a private partner.
(4)A public-private partnership shall not be used to circumvent any requirements or
restrictions placed upon any local government pursuant to any provision of the
Kentucky Revised Statutes.
(5)All public-private partnership agreements executed by a local government or any of
its agencies under this section shall be approved by the legislative body of the local
government, which in the case of a school district shall be the local board of
education, at a public meeting, and shall include at a minimum the following
provisions:
(a)1. Property owned by a local government shall not be sold, conveyed, or
disposed of in any way at any time; and
2. Leases issued by a local government to any party shall not be transferred
in any way by that party;
without the specific and express written consent of the legislative body, which
in the case of a school district shall be the local board of education, of the
local government;
(b)Require the private partner to provide or cause to be provided performance
and payment bonds on the design and construction portion of the agreement as
required under KRS 45A.435 and maintenance bonds, warranties, guarantees,
and letters of credit in connection with the private partner's other activities
under the agreement, in the forms and amounts satisfactory to the local
government and in amounts necessary to provide adequate protection to the
local government;
(c)Review and approval of plans and specifications for the project by the local
government;
(d)Inspection of the project by the local government to ensure that the private
partner's actions are acceptable to the local government in accordance with the
agreement;
(e)Maintenance of public liability insurance or self-insurance, in form and
amount satisfactory to the local government and reasonably sufficient to
insure coverage of tort liability to the public and employees and to enable the
continued operation of the project;
(f)Reimbursement to be paid to the local government for services provided by
the local government;
(g)Filing of appropriate financial statements by the private partner on a periodic
basis;
(h)Policies and procedures governing the rights and responsibilities of the local
government and the private partner in the event the public-private partnership
agreement is terminated or there is a material default by the private partner.
These policies and procedures shall include conditions governing assumption
of the duties and responsibilities of the private partner by the local
government, and the transfer or purchase of property or other interests of the
private partner by the local government;
(i)Any fees or payments as may be established by agreement of the private
partner and the local government;
(j)A detailed description of all duties and requirements of the private partner;
(k)The ability of a private partner or partners to quickly respond to the needs
presented in the request for proposal, and the importance of economic
development opportunities represented by the qualifying project. In evaluating
proposals, preference shall be given to a plan that includes the involvement of
small businesses as subcontractors, to the extent that small businesses can
provide services in a competitive manner, unless any preference interferes
with the qualification for federal or other funds; and
(l)Any other information necessary to properly address the life cycle of the
agreement, including the disposition of assets if or when the public-private
partnership agreement is terminated or otherwise concludes.
(a)On or before December 31, 2016, the secretary of the Finance and
Administration Cabinet shall promulgate administrative regulations setting
forth criteria to be used by a local government employing a public-private
partnership for a particular project, and establishing a process for public-
private partnership procurement undertaken by local governments consistent
with this section. Prior to submission of the proposed administrative
regulations pursuant to the regulatory process required by KRS Chapter 13A,
the proposed administrative regulations shall be approved by the Kentucky
Local Government Public-Private Partnership Board established by subsection
(11)of this section.
(b)The secretary shall consult with design-builders, construction managers,
contractors, design professionals including engineers and architects, and other
appropriate professionals during the development of these administrative
regulations.
(c)The secretary shall have the authority to contract with a consultant, pursuant
to KRS 45A.695, to assist the cabinet and the Kentucky Local Government
Public-Private Partnership Board with the review process required in
subsection
(12)of this section. The secretary may, through administrative
regulation, impose a reasonable fee on the private partner to defray the cost of
the review required in subsection
(12)of this section, including any expenses
or fees incurred in contracting with a consultant.
(d)If the secretary fails to timely promulgate administrative regulations pursuant
to this subsection, local governments may then act pursuant to this section
including compliance with the process outlined in subsection
(12)of this
section, in the absence of administrative regulations.
(7)A request for proposal for a local government project utilizing a public-private
partnership shall include at a minimum:
(a)The parameters of the proposed public-private partnership agreement;
(b)The duties and responsibilities to be performed by the private partner or
partners;
(c)The methods of oversight to be employed by the local government;
(d)The duties and responsibilities that are to be performed by the local
government and any other partners to the contract;
(e)The evaluation factors and the relative weight of each to be used in the
scoring of awards; and
(f)Other information required by a local government to evaluate the proposals
submitted by respondents and the overall proposed public-private partnership.
(8)A private entity desiring to be a private partner shall demonstrate to the satisfaction
of the local government that it is capable of performing any duty, responsibility, or
function it may be authorized or directed to perform as part of the public-private
partnership agreement.
(9)When a request for proposal for a project utilizing a public-private partnership is
issued, the local government shall transmit a copy of the request for proposal to the
cabinet and to the Department for Local Government.
(10)A request for proposal or other solicitation may be canceled, or all proposals may
be rejected, if it is determined in writing that the action is taken in the best interest
of the local government and approved by the legislative body, which in the case of a
school district shall be the local board of education.
(a)There is established within the cabinet the Kentucky Local Government
Public-Private Partnership Board, composed of eleven
(11)members as
follows:
1. The secretary of the cabinet, or the secretary's designee;
2. Two
(2)individuals appointed by the Kentucky League of Cities, both
of whom shall have experience in municipal financial operations;
3. Two
(2)individuals appointed by the Kentucky Association of Counties,
both of whom shall have experience in county financial operations, one
(1)to be recommended by the Kentucky County Judge/Executive
Association and one
(1)to be recommended by the Kentucky County
Magistrates and Commissioners Association;
4. The commissioner of the Department for Local Government, or the
commissioner's designee;
5. The executive director of the Office of Financial Management within the
cabinet, or the executive director's designee;
6. The Auditor of Public Accounts, or the Auditor's designee;
7. One
(1)citizen member appointed by the Governor, who shall have
experience and knowledge in local government debt and financial
operations; and
8. Two
(2)members of the Kentucky General Assembly, one
(1)appointed
by the President of the Senate and one
(1)appointed by the Speaker of
the House of Representatives, each of whom shall serve in a nonvoting
ex officio capacity and shall not be considered for purposes of
determining a quorum.
(b)Members of the board shall begin their terms on August 1, 2016, and shall
serve for a term of four
(4)years.
(c)Board members appointed under paragraph (a)2. and 3. of this subsection may
send a designee with similar experience to meetings for which they are
unavailable.
(d)Vacancies occurring in the term of any member shall be filled in the same
manner as the original appointment.
(e)The members of the board shall receive no compensation for their services.
(f)The secretary of the cabinet, or the secretary's designee, shall serve as chair of
the board and the members shall elect a vice chair from among the
membership of the board. The vice chair may preside over meetings of the
board in the absence of the chair.
(g)The board shall meet at least once per year, and as needed for the timely
consideration of proposed projects. A majority of the members of the board
shall constitute a quorum.
(h)The secretary of the cabinet shall be responsible for providing staff support
and maintaining complete records of the board's actions and proceedings, as
public records open to inspection.
(a)Upon the initial issuance of a public-private partnership agreement having a
total contractual value that equals or exceeds thirty percent (30%) of the
general fund revenues received by the local government in the immediately
preceding fiscal year, the local government shall submit the agreement to the
cabinet for the sole purpose of making an evaluation to the Kentucky Local
Government Public-Private Partnership Board of the following:
1. Whether the agreement meets the requirements of subsection
(5)of this
section;
2. An analysis of the overall project's economic and financial viability
within the scope of available or proposed financing arrangements and
expected revenues; and
3. Whether the agreement adheres to the procurement process required by
subsection
(2)of this section.
Public-private partnership agreements having a total contractual value that is
less than thirty percent (30%) of the general fund revenues received by the
local government in the immediately preceding fiscal year shall not be
required to be submitted to the cabinet or the Kentucky Local Government
Public-Private Partnership Board.
(b)The local government shall submit any information required by the cabinet,
relating to the agreement and its procurement, to enable the cabinet to conduct
this evaluation.
(c)The cabinet shall acknowledge receipt of the agreement within thirty
days, and after evaluation thereof shall, within ninety
(90)days of its receipt,
forward the results of its evaluation separately to each individual member of
the Kentucky Local Government Public-Private Partnership Board. The full
board shall meet within sixty
(60)days of the issuance of the cabinet's
evaluation to consider the evaluation provided by the cabinet and approve or
disapprove the proposed agreement. If the board disapproves the project, the
board shall provide specific reasons for its disapproval. If the board approves
the project, the cabinet shall return the agreement to the local government
legislative body, which in the case of a school district shall be the local board
of education, for final execution thereof. No public-private partnership
agreement issued by a local government that is subject to evaluation by the
cabinet and review and approval by the Kentucky Local Government Public-
Private Partnership Board pursuant to paragraph
(a)of this subsection shall
take effect unless and until it is approved by the Kentucky Local Government
Public-Private Partnership Board pursuant to this subsection and is found by
the board to meet the requirements of this section and to be economically
viable as provided in this subsection.
(d)If an agreement is not approved by the board, the local government submitting
the agreement may modify the agreement and resubmit it for reconsideration
in accordance with this section.
(13)The Commonwealth shall bear no liability for public-private partnership
agreements approved pursuant to subsection
(12)of this section.
(14)Upon approval and execution of a public-private partnership agreement, the local
government shall transmit a copy of the agreement to the Department for Local
Government.
(15)The Auditor of Public Accounts may periodically review public-private partnership
agreements executed by a local government pursuant to this section, and any
actions undertaken by private partners and local governments thereunder, to
evaluate compliance with the agreement and this section.
(16)Multiple local governments, acting in accordance with KRS 65.210 to 65.300, may
jointly enter into a public-private partnership pursuant to this section. Public-private
partnership agreements involving multiple local governments shall only be required
to be submitted to the cabinet for evaluation and to the Kentucky Local
Government Public-Private Partnership Board for review and approval, as provided
by subsection
(12)of this section, if the total contractual value equals or exceeds
thirty percent (30%) of the combined general fund revenues received in the
immediately preceding fiscal year by all local governments participating in the
agreement.
(a)A person or business may submit an unsolicited proposal to a local
government, which may receive the unsolicited proposal.
(b)Within ninety
(90)days of receiving an unsolicited proposal, a local
government may elect to consider further action on the proposal, at which
point the local government shall provide public notice of the proposal
pursuant to KRS Chapter 424 or electronically on the website of the local
government, and shall:
1. Provide specific information regarding the proposed nature, timing, and
scope of the unsolicited proposal, except that trade secrets, financial
records, or other records of the person or business making the proposal
shall not be posted unless otherwise agreed to by the local government
and the person or business; and
2. Provide for a notice period of at least thirty
(30)days and no more than
ninety
(90)days for the submission of competing proposals.
(c)Upon the end of the notice period provided under paragraph (b)2. of this
subsection, the local government may consider the unsolicited proposal and
any competing proposals received. If the local government determines it is in
the best interest of the local government to implement some or all of the
concepts contained within the unsolicited proposal or competing proposals
received by it, the local government may begin an open, competitive
procurement process to do so pursuant to this section.
(d)An unsolicited proposal shall be deemed rejected if no written response is
received from the local government within ninety
(90)days after submission,
during which time the governmental body has not taken any action on the
proposal under paragraph
(b)of this subsection.