BILL NUMBER: AB 2600 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 21, 2008
INTRODUCED BY Assembly Member Niello
FEBRUARY 22, 2008
An act relating to state and local government.
An act to add Part 6 (commencing with Section 22400) to Division
2 of the Public Contract Code.
LEGISLATIVE COUNSEL'S DIGEST
AB 2600, as amended, Niello. State and local
government: infrastructure.
Existing law authorizes various state and local
governmental programs to support the development of infrastructure.
This bill would state the intent of the Legislature to
enact legislation to authorize a state
and local governmental entities agency or department
to enter into a performance-based infrastructure
partnerships partnership with a private
partner for eligible facilities.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Part 6 (commencing with Section 22400)
is added to Division 2 of the Public Contract Code
, to read:
PART 6. Performance-Based Infrastructure
22400. Whenever used in this part, unless the context otherwise
requires:
(a) "Eligible facility" means a facility developed, operated, or
held in accordance with this part, including an existing, enhanced,
upgraded, or new facility used or useful as public infrastructure,
including, but not limited to, facilities related to transportation,
water, wastewater, public buildings, and other public facilities, as
well as appurtenances thereto.
(b) "Information technology" includes, but is not limited to, all
electronic technology systems and services, automated information
handling, system design and analysis, conversion of data, computer
programming, information storage and retrieval, telecommunications,
which include voice, video, and data communications, requisite system
controls, simulation, electronic commerce, and all related
interactions between people and machines.
(c) "Performance-based infrastructure partnership" means either of
the following:
(1) An agreement whereby a private partner assists the public
sponsor, or the public sponsor and a local agency or agencies, in
defining a feasible project and negotiates fair and reasonable terms
for implementing the project.
(2) An agreement whereby a private partner assumes responsibility
for delivering, improving, operating, or maintaining eligible
facilities, in accordance with established performance specifications
and payment terms.
(d) "Private partner" means a person, entity, or organization that
is not the federal government or another public sponsor.
(e) "Public sponsor" means a department or agency of the state.
22401. A public sponsor may enter into a performance-based
infrastructure partnership for an eligible facility pursuant to this
part.
22402. (a) Notwithstanding any other requirements of state law, a
public sponsor may procure a private partner and award
performance-based infrastructure partnerships under this part using
any of the following:
(1) A call for project proposals, whereby the public sponsor
describes the public infrastructure facility or facilities, and
private entities are invited to submit proposals to develop,
construct, operate, maintain, and finance.
(2) A solicitation including, but not limited to, requests for
qualifications, short-listing of qualified proposers, requests for
proposals, negotiations, and best and final offers.
(3) An unsolicited proposal, provided that if the public sponsor
determines there is sufficient merit to pursue an unsolicited
proposal, the public sponsor provides reasonable opportunity for
other entities to submit competing proposals for consideration and
possible contract award.
(b) For a procurement in which a public sponsor issues a request
for qualifications, request for proposals, or a similar solicitation
document, the request shall generally set forth the factors that the
public sponsor will evaluate when reviewing the submittals. The
public sponsor may, in its sole discretion, determine which factors
it will consider and the relative weight of those factors in the
evaluation process to obtain the best value for the public sponsor.
(c) A public sponsor may pay a stipend to an unsuccessful
proposer, but only if the public sponsor has determined that the
proposal submitted was responsive to the public sponsor's request for
proposals and met all requirements established by the public sponsor
for the project. The public sponsor may determine the amount of the
stipend in its sole discretion, but the stipend amount may not exceed
the public sponsor's estimate of the value of the work product
received from the unsuccessful proposer. In exchange for the stipend,
the public sponsor may require the unsuccessful proposer to grant to
the public sponsor the right to use any work product contained in
the unsuccessful proposer's proposal, including technologies,
techniques, methods, processes, and information contained in the
recipient's project design.
(d) The public sponsor may charge a reasonable administrative fee
for the evaluation of an unsolicited project proposal.
(e) The public sponsor may procure services, award agreements, and
administer revenues as authorized in this part.
(f) The public sponsor may retain financial, legal, and other
consultants and experts inside and outside the public sector to
assist in the procurement, evaluation, and negotiation of a
performance-based infrastructure partnership and for the development
and operation of eligible facilities under this part.
(g) Notwithstanding any other provision of state law, the public
sponsor may, through the private partner, procure information
technology that is necessary to the performance of its duties under
this part, as long as the cost to procure the information technology
is fair and reasonable.
22403. (a) In a performance-based infrastructure partnership, the
public sponsor may include any of the following:
(1) Provisions authorizing the private partner to collect user
fees, tolls, fares, or similar charges, including provisions
regarding enforcement, what the private partner will do with the
collected moneys, and what technology the private partner is required
to use to collect the fees, tolls, fares, or similar charges.
(2) Provisions allowing the public sponsor to accept payments of
money and share revenues with the private partner.
(3) Provisions addressing how the public sponsor and private
partner will share development costs and manage project risks.
(4) Provisions establishing performance criteria and incentives.
(5) Provisions addressing the acquisition of rights-of-way and
other property interests that may be required.
(6) Provisions addressing the responsibility for reconstruction or
renovations that are required in order for a facility to meet
applicable government standards upon reversion of the facility to
public ownership.
(7) Provisions ensuring patrolling and law enforcement on public
facilities.
(8) Provisions identifying any public sponsor specifications that
must be satisfied, including provisions allowing the private partner
to request and receive authorization to deviate from the
specifications on making a showing satisfactory to the public
sponsor.
(9) Provisions requiring a private partner to provide performance
and payment security, the penal sum or amount of which may be less
than the value of the contract involved, based upon the public
sponsor's determination, made in its sole discretion and on a
facility-by-facility basis, of what is required to adequately protect
the public sponsor.
(10) Provisions authorizing the private partner to receive a
reasonable rate of return on the private partner's investment.
(11) Provisions specifying remedies available and dispute
resolution procedures.
(b) A performance-based infrastructure partnership agreement
between a public sponsor and the private partner shall provide that
all work created by the private partner during the course of
performance of the agreement shall be considered work made for hire
and shall be the property of the public sponsor.
(c) A performance-based infrastructure partnership agreement
between a public sponsor and the private partner shall provide that
the private partner agrees to indemnify, defend, and save harmless
the state, its officers, agents, and employees from any and all
claims and losses accruing or resulting to any and all contractors,
subcontractors, suppliers, laborers, and any other person, firm, or
corporation furnishing or supplying work services, materials, or
supplies in connection with the performance of the performance-based
infrastructure partnership or work associated therewith, and from any
and all claims and losses accruing or resulting to a contractor,
subcontractor, supplier, laborer, and any other person, firm, or
corporation who may be injured or damaged in the performance of
activities under the performance-based infrastructure partnership or
its activities.
22404. (a) Any lawful source of funding and financing may be
utilized for the development or operation of an eligible facility
under this part.
(b) The public sponsor may accept from the United States or its
agencies funds or credit assistance as is available to it for
carrying out the purposes of this part, whether the funds are made
available by grant, loan, or other financing arrangement. The public
sponsor may enter into agreements and other arrangements with the
United States or its agencies as may be necessary, proper, or
convenient for carrying out the purposes of this part.
(c) The public sponsor may accept from any source a grant,
donation, gift, or other form of conveyance of land, money, other
real or personal property, or other valuable thing made to the public
sponsor for carrying out the purposes of this part.
22405. (a) A proposer may identify those portions of a proposal
or other submission that the proposer considers to be trade secrets
or confidential commercial, financial, or proprietary information. In
order for confidential and proprietary information and trade secrets
to be exempt from disclosure, the private entity shall do all of the
following:
(1) Invoke the exclusion upon submission of the information or
other materials for which protection is sought.
(2) Identify the data or other materials for which protection is
sought with conspicuous labeling.
(3) State the reasons why protection is necessary.
(4) Fully comply with applicable provisions of law with respect to
information the proposer contends should be exempt from disclosure.
(b) Notwithstanding any other provision of law, in order to
maximize competition under this part, proposals shall not be subject
to release or disclosure by the public sponsor until the award of the
performance-based infrastructure partnership contract and the
conclusion of a protest or other challenge to the award, absent an
administrative or judicial order requiring an earlier release or
disclosure.
SEC. 2. If any provision of this act, or the
application thereof to any person or circumstance, is held invalid,
the invalidity shall not affect other provisions or applications of
the act which can be given effect without the invalid provision or
application, and to this end the provisions of this act are
severable.
SECTION 1. It is the intent of the Legislature
to enact legislation to authorize state and local governmental
entities to enter into performance-based infrastructure partnerships
for eligible facilities.