§ 66-73. Unsolicited proposals.

(a)

[Florida State law.] F.S. § 287.05712, "public-private partnerships," is incorporated into this section, as such may be modified from time to time.

(b)

Definitions. For purposes of this section, the words defined in F.S. § 287.05712(1) (entitled "Definitions") including, without limitation, "qualifying project," shall have the same meaning in this section.

(c)

Conditions for use. The procurement official may receive unsolicited proposals for a qualifying project, subject to the conditions and procedures of F.S. § 287.05712 and this section. Any unsolicited proposal shall include sufficient detail and information for the city to evaluate the proposal in an objective and timely manner, and shall be accompanied by the initial processing fee.

(d)

Proposal contents. Any unsolicited proposal shall include sufficient detail and information for the city to evaluate the proposal in an objective and timely manner and to determine if the proposal serves a public purpose and meets the criteria set forth in this section. Any unsolicited proposal shall contain the following items, as appropriate to the proposed project:

(1)

A description of the project, including the conceptual design of the facility;

(2)

Description of the need for the project or facility and the public benefit to be served;

(3)

A site plan indicating the location of the project proposed;

(4)

A statement setting forth the proposer's plans for developing, financing, constructing and/or operating and maintaining the project, including identification of any revenue, public or private of proposed debt or equity investment proposed by the proposer. The financing plans shall address any and all means by which the costs of the project will be borne by persons other than the city;

(5)

The proposed schedule for development of the project and/or the proposed term for operation of the project, along with an estimate of the life cycle cost of the proposed project;

(6)

A statement setting forth a method by which the private entity proposes to secure any property interests required for the proposed project;

(7)

A financial plan for the entire time period of the proposed private entity involvement in the project, including major assumptions, internal rate of return if government funds are assumed, and a total cash-flow analysis beginning with the implementation of the project and extending for the term of the proposed agreement;

(8)

The proposed user fees, lease payments, or other service payments over the term of an agreement, and the methodology for and circumstances that would allow changes to the user fees, lease payments, and other service payments over time;

(9)

A list of all public utilities, railroad lines, navigable waters and flight paths, if any, that will be crossed or affected by the proposed project and a statement of the plan to accommodate such crossings or effects;

(10)

Performance guarantees, if any, and any proposed bonding to be provided by the proposer, including ability to provide statutorily required public construction bonds or performance and payment bonds for construction of public facilities;

(11)

A listing of all proposed obligations and requirements of the city and any other governmental agencies, including, but not limited to, contributions to the project financing, development approvals and permitting;

(12)

Identification of whether the proposal involves turning over any operation, maintenance or other responsibilities to the city, along with an estimate of costs;

(13)

Statement regarding ability to add capacity to project if necessary;

(14)

Proposed safeguards to protect the city from additional costs or service disruption in the event of default or termination of contract;

(15)

The names of owners, directors and officers of the proposer, and such information as may be necessary to evaluate the qualifications of the critical personnel to be engaged in the project;

(16)

Names and addresses of persons who may be contacted for further information concerning the proposal;

(17)

Information on how the project would benefit small business enterprises and local contractors within the city;

(18)

A list of all engineering or construction firms to be proposed on the project and their qualifications and a description of their role in the proposal and project;

(19)

Is signed by a responsible official or other representative authorized to obligate the proposer contractually;

(20)

Such additional material and information required by city in order to review and evaluate such proposal.

(e)

Fees. The city shall charge fees to the private entity proposer to cover the costs of processing, reviewing, and evaluating any unsolicited proposal, including a fee to cover the costs of staff time, and attorneys, engineers, consultants, and financial advisors retained to evaluate the proposal, advertise, provide recommendations to the city and/or negotiate a contract.

(1)

Application fee. All unsolicited proposals shall be accompanied by an application fee in the amount established by resolution of the city commission, payable to the city in the form of a money order or cashier's check. Proposals submitted without the application fee shall not be accepted. The application fee is intended to cover the initial costs of review and consideration by the city and the costs for advertisement and notice. The application fee may be waived or reduced by the city commission upon a finding that the estimated cost of evaluation will be less than the initial processing fee. Unsolicited proposals submitted by governmental entities shall be exempt from the payment of the application fee.

(2)

Evaluation fee. If the city commission approves further evaluation of the unsolicited proposal pursuant to this section, the applicant shall, within ten days of the city commission's decision to proceed with evaluation, pay to the city the evaluation fee, in the amount established by resolution of the city commission, payable in the form of a money order or cashier's check. The evaluation fee is intended to cover the costs of staff time, and the fees of attorneys, engineers, consultants, and financial advisors retained to evaluate the proposal, provide recommendations to the city and/or negotiate a contract.

(3)

Increased fee. If the evaluation fee is not sufficient to pay the city's costs of attorneys, engineers, financial advisors and other consultants retained to evaluate the proposal or to provide guidance in negotiating a contract with a proposer, the evaluation fee shall be increased to cover the city's actual costs. The proposer will be notified and will promptly pay the balance needed to cover the costs incurred by city for both staff and outside consultants. The proposer shall pay the requested additional fee within 30 days. Failure to pay any additional fee shall result in rejection of the proposal or the suspension or termination of contract negotiations. If the additional fees paid are not sufficient to cover the costs of staff time, and attorneys, engineers, consultants, and financial advisors to complete the evaluation of the proposal, ranking and contract negotiations, the city may require further additional fees from the proposer to ensure that all city's costs are paid for or reimbursed by the proposer.

(4)

[Refund.] City shall refund any portion of the application fee, evaluation fee or subsequent additional fees collected which are in excess of the costs of evaluating the proposal, advertising and negotiating the contract, after the evaluation and/or negotiation is complete.

(f)

Commission consideration. If the city receives an unsolicited proposal for a qualifying project pursuant to this section and the city desires to further evaluate the proposal or negotiate an agreement based on the proposal, the procurement official shall first notify the commission of the receipt of said unsolicited proposal by placement of an item on the next available commission meeting agenda to obtain the commission's approval to proceed with the evaluation and negotiation of a project based on the unsolicited proposal.

(g)

Public notice. If the city commission approves proceeding with further evaluation and negotiation for a project based on an unsolicited proposal, the procurement official shall, in accordance with F.S. § 287.05712, advertise in the Florida Administrative Register and a newspaper of general circulation in the city, at least once a week for two weeks, stating receipt of the unsolicited proposal for the qualifying project and advertising that the city will accept other proposals for the same qualifying project. Such proposals shall contain the information required under subsection (b) of this code section. The timeframe for allowing other proposals shall be no fewer than 21 days but no more than 120 days after the initial date of publication. The entity submitting the original unsolicited proposal may submit a more detailed proposal in response to the city's notice. A copy of the notice must be mailed to each local government in the affected area of the qualifying project which shall mean Palm Beach County and/or any special district in which all or a portion of the qualifying project is located.

(h)

Receipt of proposals. Sealed proposals in response to the public notice must be received in the procurement department no later than the time and date specified for submission in the publication. Sealed proposals shall be accompanied by the application fee and the evaluation fee. The name of each proposer of a proposal timely received shall be recorded by the procurement division and shall be made available to the public.

(i)

Evaluation. The selection of a proposer with whom to negotiate shall be based on the best value to the city. An evaluation committee may be appointed by the procurement official for the purpose of evaluating and ranking the proposals. The city may seek the advice of internal staff or outside advisors, attorneys, consultants, or any combination thereof, with relevant experience for comprehensive evaluation of the proposal(s). Such determination may be made by the procurement official and/or the mayor. Proposers may be invited to make oral presentations regarding their proposals. The evaluation committee shall rank the proposals in order of preference, utilizing the criteria required for the proposals, the evaluation factors set forth in this code, any criteria specifically included in the public notice and any other factors appropriate to the particular proposal. The ranking of proposals is not subject to protest or appeal. The recommendations of the evaluation committee shall be submitted to the procurement official. In the event only one proposal is received, the city may proceed with evaluation the evaluation or reject the proposal, whichever is in the best interests of the city. After reviewing the evaluation committee's recommendation, the procurement official may: (1) Approve the recommendation of the evaluation committee, written notice of which shall be provided to all proposers; (2) Reject the evaluation committee's recommendation and instruct the evaluation committee to re-evaluate and make further recommendations; or (3) Reject all proposals.

(j)

Evaluation criteria. When performing an evaluation of any proposal under this section, the following factors, along with all of the information required to be provided in the proposal, shall be considered, in addition to any others appropriate for the particular proposal:

(1)

The proposal business terms, including the finance plans;

(2)

Unique, innovative and meritorious methods, approaches, concepts, design techniques or cost reductions demonstrated by the proposal;

(3)

Overall scientific, technical, or socioeconomic merits of the proposal;

(4)

The proposer's capabilities, related experience, facilities, techniques, or unique combinations of these;

(5)

The professional qualifications, capabilities, and experience of the proposer's team or key personnel critical to achieving the proposal objectives;

(6)

The general reputation and financial condition of the proposer and its team members; the proposed finance plan; the financial viability and feasibility of the proposed project or facility; and the cost, if any, to the city to proceed with implementation of the proposal, including on-going operational or maintenance costs. The city may require the proposer to provide a technical study prepared by a nationally recognized expert with experience in preparing analysis for bond rating agencies;

(7)

Any other information the city deems appropriate for evaluation of the proposed project or facility.

(k)

Rejection of proposals. If an unsolicited proposal, or competing proposal received after public notice, is not deemed by the city to be complete or in sufficient detail, it may be rejected at the sole discretion of the procurement official. If the procurement official determines that it is in the best interests of the city to do so, the city may reject, in whole or in part, any or all proposals in accordance with section 66-70. The city shall have no responsibility to itemize or advise the proposer of the incomplete items or terms of the proposal. The city shall refund any portion of the application fee paid which, in the determination of the procurement official, exceeds the direct costs associated with evaluating the proposal up to the time of rejection. The rejection of a proposal shall create no rights in the proposer and such decision is not subject to protest or appeal. The city, in its discretion, reserves the right to reject all proposals at any point in the process prior to the full execution of a contract with a proposer.

(l)

Contract negotiations. The city may negotiate with the highest-ranked proposer to arrive at a mutually satisfactory agreement in accordance with F.S. § 287.05712. If the city is not satisfied with the results of the negotiations, the city may terminate negotiations with the proposer and negotiate with the second-ranked or subsequent-ranked firms, in the order of their ranking. Notwithstanding this paragraph, no proposer is guaranteed the award of a contract as a result of being favorably ranked. The ranking of proposals is not subject to protest or appeal. If only one proposal is received, the city may negotiate in good faith, and if the city is not satisfied with the results of the negotiations, the city may terminate negotiations with the proposer. All agreements shall be in a form acceptable to the city attorney. For agreements that involve finance plans or long-term financing wherein the city would incur a debt obligation, such contract provisions shall be reviewed and approved by the finance director. The procurement official shall review all documents related to the proposer's past performance, payment of subcontractors and similar responsibilities. The risk manager shall review all insurance and related requirements.

(m)

Contract award. Execution of any contract or agreement relating to an unsolicited proposal is subject to approval by the city commission, except if all funds to be paid by city for such project or contract have been previously identified in the budget detail. If an unsolicited proposal involves the use of any federal funds or land procured using federal funds, in whole or in part, the award and execution of any contract or agreement relating to the unsolicited proposal is contingent upon the satisfaction of any applicable federal requirements and the federal agency's approval.

(n)

Waiver of irregularities. The procurement official shall have the authority to waive all nonmaterial irregularities on any and all proposals except timeliness and signature requirements.

(o)

Prohibited lobbying. The lobbying provisions of section 66-8 apply to unsolicited proposals and competing proposals provided in response to public notice of an unsolicited proposal, and such prohibition shall be in effect from the date on which the unsolicited proposal is received by the city or the date of public notice, whichever is earlier, through the date of contract execution.

(p)

Public records. Proposal documents submitted by private entities are public records under F.S. ch. 119, subject to any exemption otherwise provided by law. If a proposer claims an exemption to the public records laws, the proposer must: (i) invoke the exemption when the proposal data or materials are submitted to the city or before such submission, (ii) identify the specific data and materials for which protection from disclosure is sought, and (iii) state why the exclusion from disclosure is necessary, citing the specific exemption to F.S. ch. 119, or the applicable statute providing confidentiality, that the proposer believes applies. The city's determination as to such exemption or confidentiality shall be final and binding upon the proposer. The proposer shall bear all attorneys' fees and costs associated with litigation for public access to claimed confidential or exempt documents.

(Ord. No. 4581-15, § 1, 7-20-2015)