CC Resolution No. 2882 RESOLUTION NO. 2882
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, ADOPTING P3 GUIDELINES AND PROVIDING FOR THE
EFFECTIVE DATE THEREOF.
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WHEREAS,the 82"d Legislature of Texas enacted S.B. 1048, entitled the Public and Private
Facilities and Infrastructure Act, Chapter 2267, Texas Government Code(the"Act')for the purpose of
encouraging private entity participation, creativity and completion and to guide the selection of
qualifying projects in the public-private partnership ("P3") development program, including the
adoption of guidelines by local governments;
WHEREAS, the Act requires that a political subdivision adopt a resolution by its governing
body indicating that the political subdivision elects to operate under the Act; and;
WHEREAS, the City of Baytown, Texas (the "City") has determined that the use of P3's as
provided under the Act will enable it to utilize an additional tool for developing capital improvement
projects; NOW THEREFORE,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN,TEXAS:
Section 1: That the facts and matters set forth in the recitals of this Ordinance are hereby
found to be true and correct and are herein adopted by the City Council of the City of Baytown,Texas.
Section 2: The City does hereby elect to operate under the Public and Private Facilities
and Infrastructure Act of 2011, Texas Government Code 2267 and has passed this Resolution in
accordance with the requirements of the Act. The City further instructs the creation of P3 program
guidelines and criteria in substantially the same form as the attached Exhibit "A" as required by the
Act. The City Manager or his delegate is authorized to revise and finalize the guidelines and criteria.
Section 3: This Ordinance will take effect immediately from and after its passage by the City
of Council of the City of Baytown,Texas.
INTRODUCED,READ,AND PASSED by the affirmative vote of the City Council of the City of Baytown,
Texas,this 8`h day of February, 2024.
m
LA RA ALVARADO, Mayor,Pro Tern
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AT E T:
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ANGELA J KSON, City.. V �/ o
APPROVED A TO FO0' 'O
SCOTT LNOND,City Attorney
C:\Users\DESTIN-2WppData\Local\Temp\BCL Technologies\easyPDF 8\@BCL@740E0F48\@BCL@740E0F48.docx
EXHIBIT "A"
THE CITY OF BAYTOWN, TEXAS
LOCAL GUIDELINES FOR PUBLIC PRIVATE PARTNERSHIPS
Approved 1 202
City Contact Person:
[Insert Namel
jlnsert Titlel
jlnsert street or P.O Box addressl
Baytown. Texas
jlnsert telephone number]
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TABLE OF CONTENTS
I. INTRODUCTION................................................................................................................. 4
A. DECLARATION OF PURPOSE .................................................................................... 4
B. PUBLIC PRIVATE PARTNERSHIPS AND QUALIFYING PROJECTS................4
II. DEFINITIONS...................................................................................................................... 5
III. GENERAL PROVISIONS............................................................................................... 8
A. OVERVIEW...................................................................................................................... 8
B. PROPOSAL REVIEW FEES............................................ ............................................ 9
C. CITY CONTACT PERSON.......................................................................................... 10
D. TEXAS PUBLIC INFORMATION ACT..................................................................... 10
E. ADJUSTMENT OF TIMELINES AND PROCEDURES .......................................... 12
F. RESERVATION OF RIGHTS...................................................................................... 12
IV. CONCEPTUAL PROPOSAL PREPARATION AND SUBMISSION...................... 12
A. FORMAT......................................................................................................................... 12
B. TAB 1: COVER LETTER AND EXECUTIVE SUMMARY..................................... 14
C. TAB 2: PRIVATE ENTITY AND TEAM.................................................................... 15
D. TAB 3: QUALIFICATIONS AND FINANCIAL CAPACITY.................................. 15
E. TAB 4: PROPOSAL....................................................................................................... 18
F. TAB 5: PROJECT ANALYSES.................................................................................... 21
G. TAB 6: COMMUNITY IMPACT ................................................................................. 23
H. TAB 7: MISCELLANEOUS/ADDENDA..................................................................... 24
V. DETAILED PROPOSAL (PART 2) -PREPARATION AND SUBMISSION............. 24
A. SUBMISSIONS AND FORMAT................................................................................... 24
B. MANDATORY SUBMISSIONS ................................................................................... 24
VI. EVALUATION AND SELECTION CRITERIA ........................................................ 25
A. EVALUATION OF CONCEPTUAL PROPOSALS................................................... 25
B. EVALUATION CRITERIA .......................................................................................... 25
C. MINIMUM INTERIM AGREEMENT TERMS......................................................... 29
D. MINIMUM COMPREHENSIVE AGREEMENT TERMS....................................... 29
E. ADDITIONAL PROVISIONS- COMPREHENSIVE AGREEMENT .................... 31
VII. NOTICE, POSTING AND HEARING REQUIREMENTS....................................... 32
A. PUBLIC NOTICE OF DECISION TO ACCEPT AND CONSIDER
UNSOLICITED PROPOSALS...............................................Error! Bookmark not defined.
B. NOTICE AND ACCESS TO ACCEPTED PROPOSALS ......................................... 32
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C. HEARING, NOTICE AND ACCESS TO INTERIM OR COMPREHENSIVE
AGREEMENTS...................................................................................................................... 32
D. USE OF PUBLIC FUNDS.............................................................................................. 33
E. APPLICABILITY OF LAWS ....................................................................................... 33
F. GOVERNING PROVISIONS........................................................................................ 33
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I. INTRODUCTION
Texas Government Code Chapter 2267 authorizes the City of Baytown,Texas(the"City")to adopt
local guidelines for encouraging private investment within the City, facilitating financing public
projects, and providing the City with the greatest possible flexibility to contract with the public
sector to provide public services.
The City has adopted these Guidelines to furnish interested private entities with a fair and uniform
framework to:
1. respond to solicited proposals;
2. provide a fair and transparent evaluation and selection process in accordance with
Texas law.
A. DECLARATION OF PURPOSE.
The City's purpose is to work cooperatively with private entities to encourage intensive, high
quality development of City facilities, including facilities in underdeveloped and underutilized
City-owned real estate assets, and to encourage consistent and compatible development that
enhances the value of City assets.
Consistent with the legislative and statutory purpose, these Guidelines are based on the following:
1. there is a public need for timely acquisition, design, construction, improvement,
renovation, expansion, equipping, maintenance, operation, implementation, and installation of
education facilities, technology and other public infrastructure that serve a public need and
purpose;
2. existing methods of procurement in which Qualifying Projects as defined in Section
I-B below are acquired, designed, constructed, improved, renovated, expanded, equipped,
maintained, operated, implemented, or installed may be insufficient;
3. there are inadequate resources to develop new education facilities, technology and
other public infrastructure, and government facilities for the benefit of the citizens of Baytown,
and there is demonstrated evidence that partnerships between the City and private entities or other
persons can meet these needs by improving the schedule for delivery, lowering the cost, and
providing other benefits to the public;
4. financial incentives exist under state and federal tax and other laws that
encourage the City to enter into partnerships with private entities or other persons to develop
Qualifying Projects; and
5. authorizing private entities or other persons to develop or operate one or more
Qualifying Projects may serve the public safety, benefit, and welfare of the City by making
the projects available to the public in a timelier or less costly fashion.
B. PUBLIC PRIVATE PARTNERSHIPS AND QUALIFYING PROJECTS
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The City's goal is to encourage the development of needed facilities and the redevelopment
of underdeveloped and underutilized properties, to share risk and expense, and participate in
cash flow performance by entering into public-private partnerships.
The City's Public Private Partnership Program is flexible to allow proposals for the best use
on any property given marketplace realities. The specific terms of any public-private
partnership will be negotiated and described in a contractual agreement between the City and
a private sector person or entity ("Private Partner") in order to ensure timely delivery of
services or facilities in a cost-effective manner, including innovative approaches that might
not otherwise be possible using traditional sources of public financing. Through this
contractual agreement,the assets and professional skills of each sector(public and private)are
shared to deliver a service or facility for the use or in the service of the general public, e.g.,
planning, designing, financing, constructing, operating, maintaining, and owning, and each
sector shares in the potential risks of the timely and efficient delivery of the service or facility.
To be considered as a Public-Private Partnership development project, the proposed project
must meet the definition of a "Qualifying Project" which is defined by state law as either:
1. any ferry, mass transit facility, vehicle parking facility, port facility, power
generation facility, fuel supply facility, oil or gas pipeline, water supply facility, public work,
waste treatment facility,hospital, school,medical or nursing care facility,recreational facility,
public building, technology facility, or other similar facility currently available or to be made
available to a governmental entity for public use, including any structure, parking area,
appurtenance, and other property required to operate the structure or facility and any
technology infrastructure installed in the structure or facility that is essential to the project's
purpose; or
2. any improvements necessary or desirable to real property owned by a
governmental entity.
II. DEFINITIONS.
Unless otherwise specified, whenever the following terms are used in these Guidelines, they have
the meanings set forth below:
"Act" means Chapter 2267 of the Texas Government Code, as amended.
"Affected Jurisdiction" means any county or municipality in which all or a portion of a
Qualifying Project is located.
"Center" means the center for alternative finance and procurement established under Section
2152.110 of the Texas Government Code by the Texas Facilities Commission.
"City" means the City of Baytown, Texas.
"Commission" means the Partnership Advisory Commission established under Chapter 2268 of
the Texas Government Code.
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"Comprehensive Agreement" means the comprehensive agreement authorized by Section
2267.058 of the Texas Government Code between the Contracting Person and the City.
"Conceptual Proposal" means a proposal for a Qualifying Project accepted by the City.
"Conceptual Stage"means the initial phase of Qualifying Project evaluation when the City makes
a determination whether a Qualifying Project serves a public purpose, meets the criteria for a
Qualifying Project, assesses the qualifications and experience of a Private Entity, reviews the
Qualifying Project for financial feasibility, and warrants further pursuit.
"Contracting Person" or "Private Partner" means a person who enters into a Comprehensive
or Interim Agreement with the City on a specific P3 Project.
"Detailed Proposal" means a proposal for a Qualifying Project accepted by the City beyond a
conceptual level of review that defines and establishes periods related to fixing costs, payment
schedules, financing, deliverables, and project schedule.
"Detailed Stage" means the second phase of Qualifying Project evaluation where the City has
completed the Conceptual Stage and accepted the proposal as a Qualifying Project but may request
additional information regarding a Qualifying Project prior to entering into competitive
negotiations with one or more private entities to develop an Interim or Comprehensive Agreement.
"Develop" or "Development" means to plan, design, develop, finance, lease, acquire, install,
construct, or expand a Qualifying Project.
"Development Opportunity" or "Development Opportunities" means a potential Qualifying
Project on City-owned or other property that leverages existing public resources for development
of a project that generates sustainable non-tax revenue sources for City uses, enhances the value
of City's real estate assets over time, increases the City's tax base, creates significant public
benefits and/or otherwise fulfills a public purpose.
"Designated City P3 Program Contact" has the meaning set forth in Article III, Section C.
"Interim Agreement" means an agreement authorized by Section 2267.059 of the Texas
Government Code,before or in connection with the negotiation of the Comprehensive Agreement,
authorized by these Guidelines between the City and a Contracting Person, for the development or
operation, or both, of a Qualifying Project. The Interim Agreement may authorize the Contracting
Person to begin activities or project phases related to the Qualifying Project including, but not
limited to, project planning and development, design, engineering, environmental analysis and
mitigation, surveying, financial and revenue analysis, including ascertaining the availability of
financing for the proposed facility or facilities, or any other phase of the Qualifying Project that
constitutes activity on any part of the Qualifying Project.
"Lease Payment" means any form of payment, including a land lease, by the City to the Private
Partner for the use of a Qualifying Project.
"Lifecycle Cost Analysis" means an analysis that calculates cost of an asset over its entire life
span and includes the cost of planning, constructing, operating, maintaining, replacing, estimates
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of sufficient capital improvement reserves, and when applicable,salvaging the asset. Although one
proposal may have a lower initial construction cost, it may not have the lowest lifecycle cost once
maintenance, replacement, and salvage value are considered.
"Operate" means to finance, maintain, improve, equip, modify, repair, or operate a Qualifying
Project.
"P3" means Public-Private Partnership.
"Private Entity" means any individual person, corporation, general partnership, limited liability
company, limited partnership,joint venture, business trust, public benefit corporation, nonprofit
entity, or other business entity, including a"Respondent" that submits a proposal in response to a
solicitation.
"Property"means any matter or thing capable of public or private ownership.
"Public-Private Partnership Program" or "P3 Program" means the City's public-private
partnership program implemented in accordance with the Act.
"Qualifying Project(s)" means (i) any ferry, mass transit facility, vehicle parking facility, port
facility, power generation facility, fuel supply facility, oil or gas pipeline, water supply facility,
public work,waste treatment facility,hospital,school,medical or nursing care facility,recreational
facility, public building, technology facility, or other similar facility currently available or to be
made available to a governmental entity for public use, including any structure, parking area,
appurtenance, and other property required to operate the structure or facility and any technology
infrastructure installed in the structure or facility that is essential to the project's purpose; or (ii)
any improvements necessary or desirable to real property owned by a governmental entity.
"Real Property" means (i) improved or unimproved land, (ii) an improvement, (iii) a mine or
quarry, (iv) a mineral in place, (v) standing timber, or (vi) an estate or interest, other than a
mortgage or deed of trust creating a lien on property or an interest securing payment or
performance of an obligation, in any of the foregoing properties.
"Respondent" means a Private Entity that submits a proposal in response to a solicitation issued
by the City.
"Revenue" means all revenue, income, earnings, user fees, lease payments, or other service
payments that arise out of or in connection with the development or operation of a Qualifying
Project, including money received as a grant or otherwise from the federal government, a
governmental entity, or any agency or instrumentality of the federal government or governmental
entity in aid of the Qualifying Project.
"Service Contract" means a contract between a governmental entity and a Contracting Person
under Section 2267.054 of the Texas Government Code for the delivery of services to be provided
as a part of a Qualifying Project in exchange for service payments or other consideration as the
City considers appropriate.
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"Service Payment" means a payment to a Contracting Person of a Qualifying Project under a
Service Contract.
"Solicitation" means a written request for services, issued by the City, soliciting responses
including but not limited to: bids,business plans(RBP), expressions of interest(REI), ideas(RFI),
offers (RFO), proposals (RFP), qualifications (RFQ), or any combination thereof.
"User Fee" means a rate, fee, or other charge imposed by a Contracting Person for the use of all
or part of a Qualifying Project under a Comprehensive Agreement.
III. GENERAL PROVISIONS.
A. OVERVIEW
The Public-Private Partnership process may be initiated by a City Solicitation. The City intends
to respond to Proposals within forty-five (45) to one hundred eighty (180) days after receipt, the
response date dependent on the complexity of the Proposal.
The City may invite bids or proposals from Private Entities for a Qualifying Project. The
procedures and requirements applicable to any particular solicited bid or proposal will be specified
in the written Solicitation for that proposal. The response to any written Solicitation will require
the submittals in the format as set out in Section IV of these Guidelines.
The P3 process requires a two-part proposal that consists of 1)an initial Conceptual Proposal(Part
1); and 2) a subsequent Detailed Proposal (Part 2). The Conceptual Proposal and the Detailed
Proposal will each contain specified information on the Private Entity's qualifications and
experience, project characteristics, project financing, anticipated public support or opposition,
project benefit, value, and compatibility, as more specifically described in Section VI of these
Guidelines. In addition, any proposal for a Qualifying Project will specifically and conceptually
identify any facility, building, infrastructure or improvement included in the proposal.
The Private Partner can be involved in a variety of ways,from designing the facility to undertaking
its financing, construction, operation, maintenance, and/or management. Depending on the
circumstances of each Qualifying Project,types of public-private partnerships may include but are
not limited to: Build-Own-Operate (BOO), Build-Operate-Transfer (BOT), Build-Transfer-
Operate (BTO) or Buy-Build-Operate (BBO). Similarly, types of contract services may include
but are not limited to: Operations and Maintenance; Operations, Maintenance and Management;
Design-Build-Operate (DBO) including Design-Build-Operate-Transfer and Design-Build-Own-
Operate; Developer Financing; Enhanced Use Leasing including Lease-Develop-Operate and
Build-Develop-Operate; Lease-Purchase; Turnkey and other methods allowed by law.
The P3 Program is a flexible development tool that allows the use of innovative financing
techniques. The P3 Program is intended to encourage proposals that offer private financing in
support of the Qualifying Project, which may include commensurate risk to the Private Entity, but
may also benefit the Private Entity and City through innovative approaches to project financing,
development and use. Proposals may include in-kind consideration, in an amount that is not less
than the fair market value of the real property owned by the City; including but not limited to
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construction of new facilities, alteration and restoration of existing facilities, and environmental
remediation.
Private Entities may or may be required to include innovative financing methods, including the
imposition of User Fees or other forms of service payments, in its proposal.
As further described in Section IV,all proposals should provide a concise description of the Private
Entity's capabilities to complete the Qualifying Project and the benefits the City will derive from
the Qualifying Project. Project benefits are those occurring during the construction, renovation,
expansion or improvement phase and during the life cycle of the Qualifying Project. Any proposals
submitted to the City must include a comprehensive scope of work and a financial plan for the
Qualifying Project, containing enough detail to allow the City to analyze the financial feasibility
of the Qualifying Project. For specific applications, the City may request clarification to the
submission based on any criteria established by the City. The cost analysis in a proposal should
not be based solely on the financing plan, as the City may determine to finance the Qualifying
Project through other available means.
The City will undertake full and proper due diligence in the evaluation and selection of Qualifying
Projects. In this regard, the qualifications, capabilities, resources and other attributes of a Private
Entity and its whole team will be carefully examined for every Qualifying Project. In addition,
private entities will be held strictly accountable for representations and information provided
regarding their qualifications,experience or other contents of their proposals,including all specific
aspects of proposed plans to be performed by the Private Entity.
THE CITY WILL NOT BE LIABLE FOR ANY COST INCURRED BY THE PRIVATE
ENTITIES IN PREPARING, SUBMITTING OR PRESENTING THE PROPOSAL AND IN
SATISFYING ANY DEMONSTRATION OR OTHER REQUIREMENTS FOR AN
UNSUCCESSFUL PROPOSAL.
B. PROPOSAL REVIEW FEES
If the City decides to proceed with evaluation of a Conceptual or Detailed Proposal, the City
Council may require the Center for Alternative Finance and Procurement to provide independent
analyses regarding a Qualifying Project's specifics, advantages,disadvantages, and long-term and
short-term costs. Alternatively,the City Council may determine that similarly qualified employees
of the City will perform the analysis in consultation with professional advisors, attorneys or other
consultants it engages having appropriate experience in analyzing public-private partnership
proposals and negotiating comprehensive agreements,as set out in Section VII of these Guidelines.
If the proposal has an estimated cost of$5 million or more for the construction or renovation of a
Qualifying Project, this analysis must include review by an architect, a professional engineer, and
a registered municipal advisor not otherwise employed with the City. The Private Entity will pay
directly the fees of any advisors, attorneys, or consultants engaged by the City to complete the
evaluation of the proposal. Payment will be made in the manner and amounts set out in an Interim
Agreement between the City the Private Entity, and such advisors, attorneys, orconsultants will
vary according to the size, scope, and amount of the project. The Private Entity will pay any fee,
which may include costs for outside consultants, charged by the Commission.
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C. CITY CONTACT PERSON
Designated City P3 Program Contact:
A Private Entity may address any questions about the City's Public Private Partnership Program
to [Insert Name], [Insert Title], [Insert Department], [Insert Address] (the "Designated City P3
Program Contact"). The Designated City P3 Program Contact will generally be available during
business hours. The City will establish an Oversight Committee consisting of[insert members].
A Private entity and its representatives and agents may not contact any City official or employee
regarding a proposal except for the Designated City P3 Program Contact. Attempts to circumvent
this requirement may result in rejection of the proposal as non-compliant.
RESPONDENTS MAY NOT ENGAGE IN "PRIVATE COMMUNICATIONS" WITH
ANY MEMBER OF THE COUNCIL OF THE CITY OF BAYTOWN REGARDING THIS
SOLICITIATION FROM THE DATE OF ISSUANCE OF THE SOLICITATION UNTIL
THE PROCUREMENT PROCESS IS COMPLETE AND A CONTRACT HAS BEEN
NEGOTIATED WITH THE SELECTED OFFEROR. PRIVATE COMMUNICATION
MEANS ANY COMMUNICATION OTHER THAN COMMUNICATIONS THAT TAKE
PLACE AT A POSTED MEETING OF THE FULL COUNCIL. OR A MEETING OF A
COMMITTEE OF THE COUNCIL. OR A MEETING WHICH HAS BEEN
SPECIFICALLY AUTHORIZED BY THE COUNCIL FOR THE PURPOSE OF
NEGOTIATING WITH AN OFFEROR.
STATE LAW REQUIRES THAT RESPONSES MUST INCLUDE FILING A CHAPTER
176 CONFLICT OF INTEREST DISCLOSURE. RESPONDENTS ARE REQUIRED TO
INCLUDE A COMPLETED AND SIGNED CONFLICT OF INTEREST
QUESTIONNAIRE WITH THEIR PROPOSAL.
TO ASSURE PUBLIC CONFIDENCE IN THE INTEGRITY OF THIS PROCUREMENT
PROCESS AND THE INTEGRITY OF THE FIRMS AND INDIVIDUALS PROVIDING
SERVICES TO THE CITY, EACH RESPONDENT MUST COMPLETE AND SIGN THE
PUBLIC INTEGRITY DISCLOSURE OR THE RESPONSE MAY NOT BE
CONSIDERED.
A CITY EMPLOYEE OR RELATIVE OF AN EMPLOYEE MAY NOT ACCEPT ANY
MONEY, FINANCIAL BENEFIT, OR OTHER CONSIDERATION FROM A PRIVATE
ENTITY THAT HAS ENTERED INTO A COMPREHENSIVE AGREEMENT WITH THE
CITY.
D. TEXAS PUBLIC INFORMATION ACT.
The City is subject to the Texas Public Information Act, Chapter 552, Texas Government Code.
Most information collected, assembled, or maintained by the City in connection with the
transaction of official business is public information subject to disclosure upon written request.
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The Public Information Act exempts certain categories of information from required public
disclosure. The Office of the Attorney General determines whether information may be withheld.
All information provided to the City will be handled in accordance with the Act and the
requirements of the Texas Public Information Act while in the City's possession. All documents
submitted by a Private Entity should be regarded as public records and subject to disclosure;
provided however, such documents will be held in confidence by the City as required by the Act
and the Public Information Act.
PRIVATE ENTITIES ARE CAUTIONED THAT ONCE A PROPOSAL IS OPENED,
ALL INFORMATION CONTAINED THEREIN WILL BE AVAILABLE TO THE
PUBLIC UNLESS THE INFORMATION IS EXCEPTED FROM THE
REQUIREMENTS OF THE PUBLIC INFORMATION ACT.
Private Entities who claim that information contained in a bid should be protected from public
disclosure after the award of the contract may be asked to support such claim if the City receives
a request for the information and requests a determination by the Attorney General.
A Private Entity should identify those portions of a proposal that the Private Entity considers to be
trade secrets or confidential commercial, financial, or proprietary information. If any information
contained in the Solicited Proposal qualifies for an exception because it falls into one of the
foregoing categories, it should be clearly marked "CONFIDENTIAL" and the basis of the claim
of confidentiality should be stated. Data so identified will be maintained as a protected record, to
the extent permitted by law. Blanket statements regarding the confidentiality of information may
not be sufficient to protect the confidentiality of information submitted. Cost estimates relating to
a proposed transaction prepared by or for the City regarding any proposed P3 Project are not open
to public inspection.
Under the Public Information Act, in order for confidential and proprietary information and trade
secrets to be considered exempt from disclosure,the Private Entity should do each of the following:
1. Invoke such exclusion upon submission of the information or other materials
contained within the proposal for which protection is sought;
2. Specifically identify the data or other materials for which protection is sought with
conspicuous labeling;
3. State the reasons why protection is necessary; and
4. Fully comply with any applicable provisions of Texas law with respect to
information the Private Entity contends should be exempt from disclosure.
P3 Proposals,trade secrets,financial records,or other records of a Private Entity or the Contracting
Person that are excluded from disclosure under Government Code Section 552.101 may not be
posted or made available for public inspection except as otherwise agreed to by the City and a
Private Entity or the Contracting Person.
] l
While inspection of documents submitted to a governmental entity are generally subject to
inspection by members of the public, any inspection of P3 procurement transaction records is
subject to reasonable restrictions to ensure the security and integrity of the records.
E. ADJUSTMENT OF TIMELINES AND PROCEDURES
Except for specific time periods and procedures established in the Act, the City CEO may
accelerate and modify the solicitation, evaluation, selection, review, and documentation timelines
and procedures set out in these Guidelines for proposals involving a Qualifying Project considered
a priority by the City; and may extend the timelines for such additional periods of time and add
procedures as are determined by the City CEO to be necessary or convenient to provide for a fair
and complete evaluation and selection process. In determining whether to authorize additional time
and procedures, the City CEO will consider the complexity of the proposed Qualifying Project.
F. RESERVATION OF RIGHTS
The City reserves all rights available to it by law in administering these Guidelines, including
without limitation the right in its sole discretion to:
1. withdraw any solicitation at any time and issue a new request;
2. reject any and all Proposal submittals at any time;
3. terminate evaluation of any and all Proposal submittals at any time;
4. suspend, discontinue, or terminate either Interim or Comprehensive Agreement
negotiations with any Respondent at any time prior to the actual authorized
execution of such agreement by all parties;
5. negotiate with a Respondent without being bound by any provision in its Proposal;
6. negotiate with a Respondent to include aspects of unsuccessful Proposals for
the project in the Interim or Comprehensive Agreement;
7. request or obtain additional information about any Proposal from any source;
8. modify, issue addenda to, or cancel any solicitation;
9. waive deficiencies in a Proposal submittal, accept and review a nonconforming
Proposal submittal, or permit clarifications or supplements to a Proposal submittal;
or
10. waive, revise, supplement, or make substitutions for all or any part of these
Guidelines.
IV. CONCEPTUAL PROPOSAL PREPARATION AND SUBMISSION
A. FORMAT
To the greatest extent possible,the Conceptual Proposal submitted will be sufficient to convey the
experience and capacity of the development team and each member of the team,the overall quality
and character of the Qualifying Project, as well as the financial and implementation strategies to
ensure successful completion of the Qualifying Project.
All responses must be submitted through portal [insert] by the deadline. All material submitted
will become property of the City.
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Responses to any solicitation received at the [Insert Department Name] Department after the
specified date and time will not be accepted. [Insert any instructions relating to delivery or mail
carriers]. The Private Entity accepts all responsibility for delivering its offer to the previously
stated address within the specified time or the offer will be considered non-responsive and will be
mailed back unopened. If the envelope does not reflect a return address, it will be opened for the
sole purpose of obtaining the return address.
1. All proposals must be organized in the manner outlined in this Section and
submitted with the applicable Review Fee. No page limitation is imposed, but brevity is
appreciated. All proposals will be submitted as one (1) original and seven (7) copies and one (1)
electronic copy (searchable PDF format on CD). The original copy containing original signatures
will be marked ORIGINAL on the cover letter.
2. CONFIDENTIAL MATERIALS. Any documents submitted by a Private Entity
that contain trade secrets, financial records,proprietary or other confidential records exempt from
disclosure under Government Code Section 552.101 will be submitted in a separate, sealed
envelope, designated on the cover as CONFIDENTIAL MATERIALS. A cover letter listing all
exempt material will be attached. Clearly mark any material believed to be a trade secret,
confidential or proprietary information protected from disclosure under applicable law - such
material must be clearly marked in all caps as CONFIDENTIAL.
3. Proposals will be packaged and submitted in the following format:
a. Pages will be numbered and organized by paginated table of contents
corresponding to the tabbed sections identified below.
b. Unless the City has waived this requirement in writing, the submittal should be
organized in the following order and tabbed sections and as further described
in this Section IV.
TAB 1: Executive Summary
TAB 2: Private Entity and Team
TAB 3: Qualifications and Financial Capacity
TAB 4: Proposal
TAB 5: Project Analyses
TAB 6: Community Impact
TAB 7: Miscellaneous,Addenda.
c. The contents will be printed on 3-hole punched 8'/2" x 11" paper (except A/E
drawings and renderings).
d. Drawings will be printed no larger than 36" x 54".
e. Supplemental materials in alternate formats may be allowed to describe the
proposal in more detail.
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4. Label: All submissions will be addressed to City of Baytown, Texas Attn:
[Insert Department Name, Address], in a sealed envelope marked:
FOR SOLICITED PROPOSALS:
DO NOT OPEN IN MAILROOM
Public Private Partnership Solicitation Title of the Solicitation
Solicitation# Respondent's Name Mailing Address
5. Additional Submission: For any project other than a-service contract,a Respondent
whose proposal is accepted for conceptual stage evaluation must submit a copy of its proposal to
all counties or municipalities in which a portion of the project is located. The affected counties or
municipalities have 60 days from the receipt of the proposal to submit comments about the project
to the City for its consideration before entering into a comprehensive agreement with the
Respondent.
B. TAB 1: COVER LETTER AND EXECUTIVE SUMMARY
Provide a cover letter, signed by an authorized representative of the Private Entity, including
the information detailed below:
1. Identify the Private Entity or consortium of Private Entities who will be directly
involved in the Qualifying Project;
2. Identify the principal(s) and include the title(s),mailing address,phone number,
and email address for each;
3. Identify the person(s) in charge of negotiations, key personnel who will be
involved in decision making, and the representative authorized to sign on behalf of the Private
Entity; and
4. Identify any persons known to the Private Entity who would be obligated to
disqualify themselves from participation in any transaction arising from or in connection to the
Qualifying Project.
5. Private Entity Contact Information:
a. Physical address (if a consortium, include the address of each partner or
member);
b. Mailing address (if a consortium, include the address of each partner or
member); and
c. Primary phone and facsimile number.
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6. Include a three (3) to five (5) page Executive Summary that highlights the key
components of the Qualifying Project; including but not limited to describing the Private Entity,
its qualifications and experience with similar projects, highlights of the proposal and Qualifying
Project analyses, and the community impact and benefits of the Qualifying Project.
C. TAB 2: PRIVATE ENTITY AND TEAM
1. Identify the Private Entity: Identify the legal structure of the Private Entity or
consortium of private entities and its members or principals making the proposal; and
2. To the extent the Private Entity is created, and for-each member thereof, provide
proof of authority to do business in Texas and, as applicable, a certificate of good standing from
the Texas Comptroller of Public Accounts and Texas Secretary of State.
3. Identify the Team to the extent a team is created:
a. Provide a list of all team members, including the company name, primary
contact, title, address, telephone, and email of each team member and any
selected or prospective professional or consultant which may include, but are
not limited to analysts, architects, engineers, contractors, legal counsel,
marketing firms, real estate brokerage and property management firms.
b. Identify the firms that will provide design, construction and completion
guarantees and warranties.
c. Provide an organizational chart that clearly illustrates the team and identifies
the role of each team member, including design professional, consultant or
major contractor(s) or subcontractor(s), participating in the development or
operation of the Qualifying Project; and
d. Describe the management structure and the role each team member,partner and
any prospective professional, consultant or major contractor(s) or
subcontractor(s) will fulfill in the development or operation of the Qualifying
Project.
NOTE:ALL MEMBERS OF THE RESPONDENT'S TEAM,INCLUDING MAJOR
CONTRACTOR(S) OR SUBCONTRACTOR(S) AND CONSULTANTS KNOWN
TO THE RESPONDENT MUST BE IDENTIFIED IN THE PROPOSAL
SUBMITTED FOR THE CONCEPTUAL STAGE REVIEW. IDENTIFIED TEAM
MEMBERS MAY NOT BE SUBSTITUTED OR REPLACED ONCE A
QUALIFYING PROJECT IS APPROVED AND COMPREHENSIVE
AGREEMENT ENTERED INTO, WITHOUT THE WRITTEN APPROVAL OF
THE CITY.
D. TAB 3: QUALIFICATIONS AND FINANCIAL CAPACITY
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The Private Entity must provide demonstrable experience in the development and operation of
Qualifying Projects of similar complexity,scope and scale to the proposed project.The submission
must describe relevant experience with respect to the development and operation of other
commercial or public-private partnership projects, clearly distinguishing the experience of the
Private Entity (including joint venture partners) from that of consultants and other team members.
To substantiate experience and ability to perform the following information will be provided:
1. Describe the length of time in business, business experience, public sector
experience, and other engagements of the Private Entity or consortium of private entities;
2. Describe the design, construction and completion guarantees and warranties;
3. Provide resumes and work experience of each team member;
4. For the Private Entity and each major subcontractor or subcontractor on the Team,
provide a statement listing prior projects and clients within the past five (5) years and contact
information for each. Such prior projects list should focus on any projects similar in scope and size
to the Qualifying Project and the most recent projects. For each project identified, provide at least
the following information:
a. Client's name, project name and project location, including primary contact
name, address, telephone number, and e-mail address. Identify the affected
jurisdiction, including references and contact information, involved in each
project.
b. Private Entity's role in the project, the project description including year
completed, type, size, unit mix and tenants; and any available photographs and
plans.
c. A description of the experience of the Private Entity or consortium of private
entities, key principals and project managers of bringing similar projects to
completion on budget and in compliance with design, land use, service and
other standards. Also provide the performance schedule from contract to
completion including stabilization.
d. Identify the construction lender and description of the development cost
including a brief explanation of the approach and type of financial structure
used to finance the project, including identification of sources and amounts
of debt and equity, and public subsidies and incentives, if any.
e. All performance evaluation reports for the Private Entity and the major
contractor(s) or subcontractor(s) or other documents that are in its
possession evaluating the performance for the listed projects in terms of
cost, quality, schedule maintenance, safety and other matters relevant to the
successful Qualifying Project development, operation, and completion.
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f. A description of public involvement process and challenges or obstacles, if
any, arising from the process, and how the Private Entity overcame such
challenges or obstacles.
5. At least three (3) development and financial references (name, title, entity,
telephone number and contractual relationship) that can be contacted with respect to current
and past project experience.
6. A qualification statement that reviews all relevant information regarding
technical qualifications and capabilities,resources and business integrity of the Private Entity,
including but not limited to, bonding capacities and insurance coverage.
7. A qualification statement that includes a mandatory disclosure* by the Private
Entity for the past five (5) years any of the following conduct:
a. Bankruptcy filings;
b. Liquidated damages;
c. Fines, assessments or penalties;
d. Judgments or awards in contract disputes;
e. Contract defaults and/or contract terminations;
f. License revocations, suspensions and/or other disciplinary actions;
g. Prior debarments or suspensions by a governmental entity;
h. Denials of prequalification or findings of non-responsibility;
i. Safety past performance data, including fatality incidents;
j. Experience ratings;
k. Modification ratings;
1. Recordable injury rate;
m. Workday incidence rate;
n. Alleged violations of any federal, state or local civil law;
o. Alleged violations of any federal, state or local criminal law;
p. Criminal indictments or investigations;
q. Legal claims filed by or against the Private Entity; and
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r. Claims on payment and performance bonds.
*The City reserves the right to request a copy of all notices of default,termination, claims
of damage received on projects, and claims against performance and payment bonds, received
within the past five years as a part of the Proposal Detailed Stage.
8. For the Private Entity and each major contractor or subcontractor that will perform
construction or design activities, provide a sworn certification by an authorized representative of
each attesting to the fact that it is not currently debarred or suspended by any federal, state or local
government entity.
9. Financial Capacity: Demonstrate access to financial resources such as the ability to
raise equity and secure debt capital to deliver the Qualifying Project in a professional and timely
manner. To demonstrate financial resources, each proposal must provide the information listed
below:
a. Portfolio: Composition of current real estate portfolio, including the size,value,
years of ownership, and asset performance compared to initial proforma
statements; and any other relevant information.
b. Pendiniz Projects: A listing and description of all pending projects under
enforceable funded contracts, including the status, development schedule,
financing method, sources, and amounts, and financial commitments required
of the Private Entity.
c. Reports and Certified Financial Statements: Provide the most recent credit
report or Dun&Bradstreet report and certified financial statements for the past
four(4) years of each Private Entity or consortium of private entities and each
partner with an equity interest of twenty percent or greater. Certified financial
statements will include balance sheets, income statements and statements with
changes in financial position of any parent organizations and any materially
relevant subsidiaries, identification of any projects with negative cash flows,
amount of developer's recourse debt, any non-performing loans, and the
amount of guarantees and contingent liabilities.
d. Statement of Public Trading: If the entity is publicly traded, include as part of
the electronic copy (searchable PDF format on CD), the stock exchange and
trading symbols and a copy of the most recent IOK.
e. Funding Source Action: Disclose whether any funding sources or financial
institutions have threatened to take or have taken adverse action against the
Private Entity, such as loan acceleration, foreclosure, terminating or restricting
the use of funds, anytime during the past five years.
E. TAB 4: PROPOSAL
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Provide an overview of the Qualifying Project including the conceptual design of any facility or a
conceptual plan for the provision of services. The conceptual design for facilities, at a minimum,
will include concept renderings, a concept site plan, and elevations that collectively illustrate the
location, size, and context of the Qualifying Project. The required renderings and drawings
include:
1. Concept Plan
a. Concept Renderings: Provide a concept design (plan, computer aided model,
aerial sketch, photomontage, etc.) that characterizes the context of the urban
design of the Qualifying Project. The concept drawings will clearly illustrate
the relationship of the Qualifying Project to the principal street and surrounding
developments.
b. Concept Site Plan: The site plan, in a scale of not less than 1"=32', will
encompass the subject property and portions of contiguous parcels, if any, and
clearly illustrate topography in a 1:2,000 or other appropriate scale, include
landscape and urban design concept(s), and should be drawn as a ground floor
plan of the site. The preliminary site plan will indicate all major pedestrian
entrances, horizontal and vertical circulation systems, wall openings, all
proposed outdoor areas; and the circulation plan showing how the Qualifying
Project relates to public rights-of-way to and within the site, for walking,
cycling, public transportation, and motor vehicles. Summarize the preliminary
programming of facilities, including if any, the mix of uses, square footage(s),
total parking spaces, parking allocations (shared or exclusive), and types of
parking e.g. structured or surface.
c. Elevations: Provide exterior building elevations, illustrating the massing,
openings, materials, colors, and related elements, and any roof top structures or
equipment.
2. Project Overview
The Qualifying Project overview, at a minimum, must:
a. Describe the proposed business arrangements (i.e. performance-based
infrastructure, participation rent, concessions, parking management
agreements, service agreements, etc.).
b. Describe the plan for the development, financing and operation of the
Qualifying Project showing the anticipated schedule of which funds will be
required.
c. Describe the type and amount of user fees, lease payments, and other service
payments over the term of any applicable Interim or Comprehensive Agreement
and the methodology and circumstances for changes to the user fees, lease
payments, and other service payments over time.
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d. Describe the implementation strategy for the Qualifying Project.
e. Provide a preliminary schedule including permits, qualifying information such
as program enrollments (e.g. Medicare, Medicaid, etc.) and other approvals
from any federal, state, or local agencies, to the extent such are required, and
timing of any contemplated requests for federal, state or local resources, and
the initiation, construction phasing, completion and opening of the Qualifying
Project including major milestones and the proposed major responsibilities and
timeline for activities to be performed by the City and the Private Entity.
f. To the greatest extent possible the overview must describe the following items:
i. Operational and management plan, if applicable;
ii. Anticipated cost per square foot, phase, and use;
iii. Existing conditions and anticipated site preparation;
iv. Other opportunities that will benefit the viability of the Qualifying
Proj ect;
v. Adjacent uses and emerging projects that impact the value or influence
the use of the Qualifying Project;
vi. Connections to public transportation; and
vii.Availability and existing capacity of public infrastructure and required
extensions or improvements.
3. Terms, Special Conditions and Other Considerations
This Section is reserved for a description of any special conditions the proposal may offer
to, or request from the City.
a. State the terms offered and any contingencies requested by the Private Entity
for the Qualifying Project.
b. To the extent the Private Entity has identified federal, state, or local funding
sources, include a description of such sources. Identify any additional terms or
conditions to be included as part of the negotiation process. Include discussion
of any trades or swaps of property and special legislation or plan amendments
required to facilitate the Qualifying Project.
c. Identify any additional terms or conditions to be included as part of the
negotiation process,including discussion of any trades or swaps of property and
special legislation or plan amendments required to facilitate the Qualifying
Project.
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F. TAB 5: PROJECT ANALYSES
In this Section,include the project analyses that support the business case of the Qualifying Project.
The Project Analysis Section will be categorized into four sub-tabbed sections as follows:
1. Location and Site Analysis.
a. Describe how the proposed design of the improvements and the attributes of the
site will demand the maximum income; and
b. List any public utility facilities that will be affected by the Qualifying Project
and a statement of the plans to accommodate the affected facilities.
2. Market and Competitive Analysis.
a. Provide a market study that supports the revenue assumptions and viability of
the Qualifying Project. Study should indicate feasibility through a forecast of
the supply and demand relationship,including but not limited to,geospatial data
and geographic information, demographic and psychographic data, traffic
counts,rent levels,absorption rates,and identify underserved trade areas for the
project type. Include any supporting due diligence studies, analyses, or reports.
b. Submit detailed market information for any specialized or non-standardized
use.
3. Financial Analysis
a. Explain the financing plan of the Qualifying Project including the identity of
each source(s), the amount of debt and equity to be used to capitalize the
Qualifying Project, and the relationships (e.g., outside lender, parent company,
etc.). Include each of the following:
i. Loan commitment letters and contact information for funding sources;
ii. The sources and anticipated amounts of working capital to cover
operating costs and to adequately maintain operations from the start-up
through completion; and
iii. Letters from lending institutions, not more than three months old that
demonstrate the existence of liquid assets or suitable unencumbered
lines of credit to carry out the predevelopment activities. Evidence of
the Private Entity's liquid assets or some acceptable form of equity, will
be equal to the equity requirements of the prospective construction
lender.
b. Using standard estimating techniques provide a development budget detailing
any anticipated land acquisition(s), the anticipated pre-development costs, and
hard and soft costs from construction through occupancy.
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c. Provide a discounted cash flow analysis, for the duration of the Qualifying
Project, including but not limited to: estimates of costs, operating expenses,
capital reserves including replacement and re-tenanting reserves, net operating
income, debt service, partnership percentages, disposition benchmarks, and
calculations of net present value, internal rate of return.
d. Include a sensitivity analysis depicting the impacts due to escalations of
expenses and revenue growth, and changes in financing terms or interest rates.
e. Include a list of underlying assumptions and explain the methodology used for
such assumptions incorporated in the plan.
f. Indicate if there is a method to refinance for cost savings. Indicate which party
or parties would receive the benefit of any cost savings from a refinancing, e.g.
would the savings go to the City, would the savings be shared and to what
extent, or would the Contracting Person be the sole beneficiary.
g. Outline the financial penalties, if any, that would result should the City
terminate a Qualifying Project early or restructure the cash flows.
h. Identify the need, if any, for the City to provide either its general obligation
debt financing or moral obligation backing. The underlying assumptions should
address this need and/or state that the credit would be via a "Service
Agreement" for example. Any debt issuance should be expected to receive an
investment grade rating from a nationally recognized bond rating agency. If the
unenhanced rating is not investment grade, the City may require the use of
credit enhancements. In the event that any Qualifying Project is supported or
financed through the issuance of obligations that are deemed to be tax-
supported debt of the City,or if financing such a Qualifying Project may impact
the City's debt rating or financial position, the City will select its own finance
team, source, and financing vehicle.
i. If the Private Entity has chosen an underwriter(s),provide a breakout of the fees
to any underwriting firm(s)and the type of obligation the firm(s)are using with
a financing component. Be specific as to tax-exempt, taxable, floating rate,
fixed rate, etc. If the Private Entity has not yet chosen an underwriter(s), the
City reserves the right to have input into the selection of that underwriter(s).
4. Political and Legal Analysis
a. Provide an explanation of how the Qualifying Project will complement or
comply with the City's goal to encourage the development of needed City
facilities and the redevelopment of underdeveloped and underutilized
properties, to share risk and expense, and participate in cash flow performance
by entering into public-private partnerships.
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b. Identify allocations of risk and liability between City and Private Entity, and
assurances for timely completion of the Qualifying Project.
c. Identify the proposed risk factors and methods for dealing with these factors
including, but not limited to, (i) federal and state health care payment
compliance risk (if applicable), e.g., Anti-Kickback, 42 USC § 1320a-7b(b);
Stark law, 42 USC § 1395nn, and (ii) a description of methods and remedies
associated with any financial default.
d. Identify and fully describe any work required or otherwise proposed to be
performed by the City.
e. Describe the proposed method for securing property interests required for the
Qualifying Project.
f. List all permits, program enrollments(e.g. Medicare, Medicaid, etc.) and other
approvals required for the development and completion of the Qualifying
Project from federal, state, or local agencies.
g. State assumptions related to ownership, legal liability, law enforcement and
operation of the Qualifying Project and the existence of any restrictions on the
City's use of the Qualifying Project.
h. Identify any federal,state or local resources that the Private Entity contemplates
requesting for the Qualifying Project. Describe the total commitment, if any,
expected from governmental sources and the timing of any anticipated
commitment, both one-time and on-going.
G. TAB 6: COMMUNITY IMPACT
1. Identify the community benefits, including the economic impact and tax revenues,
the Qualifying Project will have on the City.
2. Estimate the number of jobs generated for area residents and level of pay and fringe
benefits of such jobs.
3. Project the number and value of subcontracts generated for area subcontractors.
4. Identify any anticipated public support or opposition for the Qualifying Project,
including any affected jurisdictions. Support from the public or affected jurisdictions should be
demonstrated through resolution of organizations, letters, or other official communications.
5. Identify any anticipated adverse social, economic, environmental and
transportation impacts of the Qualifying Project measured against the City's or other locally
regulated land use and building policies, design standards and any applicable ordinances. Specify
the strategies or actions to mitigate known impacts of the Qualifying Project. Indicate if
environmental and archaeological assessments have been completed.
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6. Identify the projected positive social, economic, environmental and transportation
impacts of the Qualifying Project.
7. Identify contingency plans for addressing public needs in the event that all or some
of the Qualifying Project is not completed according to projected schedule.
8. Any additional information as the City may reasonably request.
H. TAB 7: MISCELLANEOUS/ADDENDA
Use this Section to present additional information such as letters of recommendation, letters of
interest from prospective lenders or tenants, additional information concerning the development
team, and other information that supports the proposal.
NOTE: THE PRIVATE ENTITY, AT ITS SOLE DISCRETION, MAY INCLUDE ITEMS
REQUIRED IN THE DETAILED STAGE SUBMITTAL BELOW AS PART OF ITS
CONCEPTUAL STAGE SUBMITTAL.
V. DETAILED PROPOSAL (PART 2)-PREPARATION AND SUBMISSION
A. SUBMISSIONS AND FORMAT
Detailed Stage submissions will supplement the Conceptual Proposal submissions from the Private
Entity. Submissions for the Detailed Stage evaluation will be consistent with the format outlined
in Section 1V of these Guidelines, and will include any omitted submittals, substantial changes
resulting from negotiations and refinements, or tasks identified during Conceptual Stage
evaluation, unless a waiver of the requirement or requirements is agreed to by the City.
B. MANDATORY SUBMISSIONS
Unless previously submitted, the following items will be submitted as part of the Detailed Stage
submission:
1. Include a Lifecycle Cost Analysis specifying methodology and assumptions of the
Qualifying Project and the proposed start date, anticipated commitment of all parties, equity, debt,
and other financing mechanisms, and a schedule of revenues and costs. The Lifecycle Cost
Analysis will include, but not be limited to, a detailed analysis of the projected return, rate of
return, expected useful life of the facility, and estimated annual operating expenses.
2. Detailed analysis of the financial feasibility of the Qualifying Project, including
its impact on similar facilities operated or planned by the City. Include a detailed description
of any financing plan for the project, a comparison of that plan with financing alternatives
available to the City, and all underlying data supporting any conclusions reached in the
analysis of the selection by the Private Entity of the financing plan proposed for the Qualifying
Project.
3. Additional material and information as the City deems appropriate.
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VI. EVALUATION AND SELECTION CRITERIA
A. EVALUATION OF CONCEPTUAL PROPOSALS
Any Conceptual Proposals will be reviewed by the City's engineering and construction
management personnel or contractors and other City personnel and consultants as needed to
determine whether:
1. The proposed P3 Project serves the City's public purpose;
2. The proposed P3 Project meets the City's annual, capital improvement or other
development policies, plans, goals or objectives;
3. Public funds and/or private financing is reasonably available for the proposed
P3 Project;
4. The proposed P3 Project is economically feasible and cost effective; and
5. The extent that the proposed P3 Project on its face meets the Evaluation Criteria
set forth in Section B, below.
The City's engineering and construction management personnel or contractors
will prepare a summary recommendation to the City's City Manager. The City Manager will
consider the recommendation and determine if the Conceptual Proposal will be rejected or
presented to the City Council at any regular or special meeting, in open or executive session
as may be legally appropriate.
After reviewing the original Solicited Conceptual Proposal received by the City
and any Competing Proposals submitted during the notice period the City may determine:
a. Not to proceed further with any proposal; or
b. To proceed to the Detailed Stage evaluation (Part 2) of review with any
Conceptual Proposal — solicited or competing - or multiple proposals.
If the City decides not to further evaluate the Conceptual Proposal, any review
fee submitted by a Respondent will be returned.
The City reserves the right at all times to reject any proposal at any time for any
reason in its sole discretion.
Any discussions between the City and any Private Entity about the need for
infrastructure improvements in or related to any Conceptual Proposal will not limit the ability of
the City to later determine to use standard procurement procedures to meet its infrastructure
needs.
B. EVALUATION CRITERIA
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The City will make a"best value"determination in evaluating proposals received and consider the
total project cost as one factor in evaluation of the proposals. The City is not required to select the
Proposal that offers the lowest total project cost. The City intends to make its determination within
ninety (90) days after it has received all supplemental information it has requested regarding any
Proposals under consideration. The following factors will be considered in conducting a full
evaluation of either the Conceptual or Detailed Proposals to determine whether the Private Entity
possesses the requisite qualifications and experience will include, along with the specified
information required under Section IV, above:
1. Qualifications and Experience.
a. Experience working with the public sector on public-private real estate
development projects.
b. Experience, training and preparation with projects of similar size, scope and
complexity;
c. The extent of available public and private personnel, logistical resources, City
bonding capacity, and the ability to complete the Qualifying Project in a timely
and professional manner;
d. Demonstrated record of successful past performance on projects of similar size
and scope, including timeliness of project delivery, compliance with plans and
specifications, quality of workmanship, cost-control and project safety;
e. Demonstrated compliance with applicable laws, codes, standards, regulations,
and agreements on past projects;
f. Leadership structure;
g. Project manager's experience;
h. Management and operational plans;
i. Financial condition and capacity; and
j. Project ownership.
2. Project Characteristics.
Factors to be considered in evaluating the Qualifying Project characteristics will include
the following, if applicable:
a. Project scope and scale, land use and product mix;
b. The extent that the timing of the Qualifying Project is consistent with the City's
needs and project schedules;
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c. Data and reports resulting from project analyses;
d. Operation of the Qualifying Project;
e. Technology and technical feasibility;
f. Conformity to laws, regulations, and standards;
g. Environmental impacts;
h. Condemnation impacts;
i. Federal, state and local permits; and
j. Maintenance of the Qualifying Project.
3. Project Cost and Financine.
Factors to be considered in evaluating whether the proposed financing allows adequate
access to the necessary capital to finance the Qualifying Project include:
a. Total project cost and cost benefit to the City;
b. Financing and the impact on the debt or debt burden of the City;
c. Financial plan, including overall feasibility and reliability of plan; operator's
past performance with similar plans and similar projects; the degree to which
the Private Entity has conducted due diligence investigation and analysis of
proposed financial plan and the results of any such inquiries or studies;
d. Estimated project cost and life-cycle cost analysis; and
e. The identity,credit history,past performance of any third party that will provide
financing for the Qualifying Project and the nature, amount, and timing of their
commitment, as applicable.
NOTE: IN THE EVENT THAT ANY QUALIFYING PROJECT IS FINANCED
THROUGH THE ISSUANCE OF OBLIGATIONS THAT ARE DEEMED TO BE
TAX-SUPPORTED DEBT OF THE CITY, OR IF FINANCING SUCH A
QUALIFYING PROJECT MAY IMPACT THE CITY'S DEBT RATING OR
FINANCIAL POSITION,THE CITY WILL SELECT ITS OWN FINANCE TEAM,
SOURCE, AND FINANCING VEHICLE.
4. Community Impact.
Factors to be considered in evaluating the Qualifying Project's community impact include:
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a. Community benefits,including the economic impact the Qualifying Project will
have on the City in terms of tax revenue,the number of jobs generated and level
of pay and fringe benefits of such jobs;
b. Stakeholder input;
c. Community support or opposition, or both;
d. Compatibility with existing and planned facilities;and
e. Compatibility with local, regional, and state economic development efforts.
5. Other Factors.
Other factors that may be considered by the City in the evaluation and selection of
proposals include:
a. The extent the offered consideration generates value and returns to the City and
benefits to the public, including in-kind consideration greater than the fair
market value of any City-owned asset;
b. The proposed cost of the Qualifying Project;
c. The general reputation, industry experience, and financial capacity of the
Private Entity;
d. The proposed design of the Qualifying Project;
e. Opportunity cost of taking an alternative action;
f. The Private Entity's plans to employ local contractors and residents; and
g. Other criteria that the City deems appropriate.
The City's [Identifi• Responsible Administrator] is responsible for negotiating any Interim or
Comprehensive Agreement. The City may use Department and other City staff,attorneys,advisors
or consultants or contract with independent consultants or attorneys to review the terms of the
proposed Interim Agreement or Comprehensive Agreement, at the City's sole discretion. Review
criteria will include, but not be limited to, the scope, total cost, and duration of the Qualifying
Project. Timelines for the City's review will be developed consistent with the scope of the
Qualifying Project.
The City Council will approve any Interim or Comprehensive Agreement entered pursuant to the
P3 program between the City and the Private Partner (aka Contracting Person). Any Interim or
Comprehensive Agreement will define the rights and obligations of the City and the Private
Partner/Contracting Person with regard to the Qualifying Project. Prior to entering a
Comprehensive Agreement, an Interim Agreement may be entered into that permits a Private
28
Entity to perform project-related activities related to the Qualifying Project that may or may not
be compensable, on such terms and conditions set forth in such Interim Agreement.
The City will have no liability for development or operation of the Qualifying Project prior to
entering into a Comprehensive Agreement, except as the City may have expressly agreed in the
Interim Agreement.
The Private Partner may commence developing or operating the Qualifying Project ONLY
followine the execution of a Comprehensive Agreement between the Private Entity and the City.
C. MINIMUM INTERIM AGREEMENT TERMS
The scope of an Interim Agreement may include but is not limited to:
1. Project planning and development;
2. Design and engineering;
3. Environmental analysis and mitigation;
4. Surveying;
5. Ascertaining the availability of financing for the proposed facility(ies) through
financial and revenue analysis;
6. The timing of the negotiation of the Comprehensive Agreement; and
7. Any other provisions related to any aspect of the development or operation of a
Qualifying Project that the parties deem appropriate prior to the execution of a Comprehensive
Agreement.
D. MINIMUM COMPREHENSIVE AGREEMENT TERMS
The Comprehensive Agreement will define the rights and obligations of the City and the Private
Partner with regard to the Qualifying Project. The terms of the Comprehensive Agreement will be
tailored to address the specifics of the Qualifying Project and will include, but not be limited to,
the following:
1. The delivery of maintenance, performance and payment bonds or letters of credit
in connection with any acquisition, design, construction, improvement, renovation, expansion,
equipping, maintenance, or operation of the Qualifying Project, including development or
operation in phases;
2. The review and approval of plans and specifications for the Qualifying Project by
the City;
3. The rights of the City to inspect the Qualifying Project to ensure compliance with
the Comprehensive Agreement;
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4. The maintenance of a policy or policies of comprehensive general liability
insurance or self-insurance in form and amount satisfactory to the City and reasonably sufficient
to insure coverage of the Qualifying Project and of the tort liability to the public and employees,
and to enable the continued operation of the Qualifying Project;
5. The City's monitoring of the practices of the Private Partner to ensure proper
maintenance;
6. The terms under which the Contracting Person will reimburse the City for services
provided;
7. The policy and procedures that will govern the rights and responsibilities of the
City and the Private Partner in the event that the Comprehensive Agreement is terminated or there
is a material default by the Contracting Person including the conditions regarding the assumption
of the duties and responsibilities of the Private Partner by the City and the transfer or purchase of
property or other interests of the Private Partner by the City;
8. The terms under which the Private Partner will file financial statements prepared in
accordance with generally accepted accounting principles on a periodic basis but generally not less
than annually during the development, construction and operation of the Qualifying Project;
9. The mechanism by which user fees, lease payments, or service payments, if any,
may be established from time to time upon agreement of the parties. Any payments or fees will be
set at a level that are the same for persons using the facility under like conditions and that will not
materially discourage use for the Qualifying Project;
10. A copy of any Service Contract, if any;
11. A schedule of the current user fees or lease payments, if any;
12. Classifications according to reasonable categories for assessment of user fees, if
any;
13. The terms and conditions under which the City may contribute financial resources,
if any, for the Qualifying Project;
14. The terms and conditions under which existing site conditions will be assessed and
addressed, including identification of the responsible party for conducting the assessment and
taking necessary remedial action;
15. The terms and conditions under which the City will be required to pay money to
the Private Partner and the amount of any such payments for the Qualifying Project.
16. A periodic reporting procedure that incorporates a description of the impact of the
Qualifying Project on the City.
17. Liquidated damages for breach of contract.
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18. Appropriate protections against potential bankruptcy.
19. Default and termination.
20. Any changes in the terms of the Interim or Comprehensive Agreement as may be
agreed upon by the parties from time to time will be added to the Interim or Comprehensive
Agreement only by written amendment.
21. Other requirements of the P3 program or applicable law or that the City deems
appropriate.
E. ADDITIONAL PROVISIONS - COMPREHENSIVE AGREEMENT
Depending on the nature of the proposed Project,the City may require the following be addressed
in the Comprehensive Agreement:
1. The Private Partner will assume single-point responsibility and liability for all
planning, designing, financing, constructing, operating, and maintaining the Qualifying Project.
2. The Contracting Person will perform a comprehensive geotechnical investigation
of subsurface conditions at the Qualifying Project site. The risk of inadequate geotechnical
investigation or improper interpretation of the results of the geotechnical investigation will be
allocated to the Private Partner in the Comprehensive Agreement.
3. The City encourages the Private Partner to propose a formula for the mutual sharing
of cost savings realized during construction by virtue of value engineering initiatives,guaranteed
maximum price with saving sharing provisions, trade allowances or otherwise. Mutually agreed
upon terms for the sharing of such savings will be incorporated into the Comprehensive
Agreement.
4. The City may enter into Comprehensive Agreements with private entities that have
formed business associations such as joint ventures, limited partnerships and limited liability
companies. However, the City may require that one or more of the principal members of the
business association provide a performance guaranty of all obligations undertaken in the
Comprehensive Agreement.This requirement is in addition to the statutory requirement for posting
a performance bond. Private Entities interested in entering Public-Private Partnerships with the
City under the P3 program must be willing to provide this security if their proposal is submitted
as part of a business association or other entity that limits the liability of its members, owners or
partners.
5. The Comprehensive Agreement may provide for the development or operation of
phases or segments of a Qualifying Project.
6. Parties submitting proposals understand that representations, information and data
supplied in support of, or in connection with proposals play a critical role in the competitive
evaluation process and the ultimate selection of a proposal by the City. Accordingly,as part of the
Comprehensive Agreement, the Contracting Person and its team members will certify that all
material representations, information and data provided in support of or in connection with, a
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proposal are true and correct. Such certifications will be made by authorized individuals who have
knowledge of the information provided in the proposal. In the event that material changes occur
with respect to any representations, information and data provided for the proposal, the
Contracting Person will immediately notify the City of same. Any violation of this Section of the
Comprehensive Agreement will give the City the right to terminate the Comprehensive
Agreement, withhold payment or other consideration due, and seek any other remedy available
under the law.
VII. NOTICE, POSTING AND HEARING REQUIREMENTS
A. NOTICE AND ACCESS TO ACCEPTED PROPOSALS
Not later than the loth day after the date the City accepts a Proposal submitted by Respondent, the
City will post public notice of the Proposal as follows:
Posting will be on the City's website and by publication in a newspaper of general circulation,
which will include a summary of the Proposal, the location where a redacted copy of the Proposal
is available for public inspection, and the contact person.
Trade secrets, financial records, or other designated records of the contracting person excluded
from disclosure under Section 552.101 of the Texas Public Information Act may not be posted or
made available for public inspection except as otherwise agreed to by the City and the Respondent.
B. HEARING, NOTICE AND ACCESS TO INTERIM OR COMPREHENSIVE
AGREEMENTS
In addition to the other posting requirements, during the Proposal review process, not later than
thirty (30) days prior to entering into an Interim or Comprehensive Agreement, the City Council
will hold a public hearing on the Proposal. A minimum of ten (10) days is required for a public
hearing before the City enters into the final version of the proposed agreement.
Once the negotiation phase for an Interim or a Comprehensive Agreement is complete and a
decision to award has been made by the City, the City will make the Interim or Comprehensive
Agreement and P3 procurement records available for public inspection in the following manner:
Posting the agreement on the City's website or by another manner considered appropriate by the
City to provide maximum notice to the public of the opportunity to inspect the Proposal including
a summary of the proposed Comprehensive Agreement, the location where a redacted copy of the
proposed Comprehensive Agreement is available for public inspection, and the contact person.
For purposes of this subsection, P3 procurement records do not include the trade secrets of the
Contracting Person or financial records, including balance sheets or financial statements of the
Contracting Person, that are not generally available to the public through regulatory disclosure or
other means. Cost estimates relating to a Qualifying Project prepared by or for the City are not
open to public inspection.
Any inspection of P3 procurement transaction records under this Section is subject to reasonable
restrictions to ensure the security and integrity of the records.
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This Section applies to any accepted Proposal regardless of whether the process of bargaining
results in an Interim or Comprehensive Agreement.
C. USE OF PUBLIC FUNDS
The City's constitutional and statutory requirements as they apply to appropriation and expenditure
of public funds apply to any Interim or Comprehensive Agreement entered under the P3 Program.
Accordingly, the processes and procedural requirements associated with the expenditure or
obligation of public funds will be incorporated into any Qualifying Projects.
D. APPLICABILITY OF LAWS
The laws of the United States and the State of Texas are incorporated in these Guidelines by
reference for all purposes. Compliance by each Private Entity is mandatory.
E. GOVERNING PROVISIONS
In the event of any conflict between these Guidelines and any federal or state statutory or
administrative authority, the terms of the respective statutory or administrative authority will
control.
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