Miami-Dade County Adopts New P3 Legislation

We previously wrote about Miami-Dade County’s proposed new P3 legislation, both when it was initially proposed, and prior to it being considered by the subcommittee of jurisdiction, the Government Operations Committee.  Last week, the Board of County Commissioners unanimously approved the new ordinance, which will help the County implement a variety of planned and potential P3 projects in the near future, including the planned Civil Courthouse P3.

The ordinance generally tracks and implements the State of Florida’s procedures for procurement of P3 projects, but with some notable additions.  An unsolicited P3 proposal to the County under the new ordinance requires significantly more detail than under the State of Florida’s process, including information on how the project will utilize community-based subcontractors and otherwise benefit the community.  The new ordinance also provides deadlines for the administration to take action on an unsolicited proposal, which helps address the concern of many proposers that their proposal will remain in limbo for an indefinite period of time, and a number of other provisions designed to help move P3 projects forward.

Local Government Contracts and Buying American

trainIn April 2018, President Trump issued an Executive Order calling for stricter enforcement of the federal government’s “Buy American” laws.  These laws have been on the books for several decades and generally require that the federal government purchase goods and materials manufactured in the United States, with some laws also applying to certain state and local government purchases.  Specifically, the Buy America Act applies to public-transportation purchases and requires that all iron, steel, and manufactured products must be from the United States, and 60% of the components of rolling stock (busses and rail cars) must be from the United States.  The Executive Order in part directed federal agencies to develop policies to strengthen enforcement of the Buy American laws, and based on the deadlines in the Order, those new policies should be forthcoming.

In a world of global supply chains, compliance with Buy America has become increasingly complicated.  For example, we represented AnsaldoBreda, an Italian railcar manufacturer (now Hitachi Rail), in its successful bid for the replacement fleet of Miami-Dade County’s Metrorail system. For that particular project, special approval was required (and obtained) to construct the vehicles in the United States, ship them to Italy for initial testing, and then ship them back to Miami for final testing.   Fortunately, that project has successfully moved forward, and the first new Hitachi train entered service for Miami-Dade County just last week. Continue Reading

Art in Public Places: Regulatory Burden or Opportunity?

The concept of art in public places is well-established in the United States. As early as the 1930s, the federal government created New Deal programs that paid artists to create works of art for display in municipal buildings and other public civic properties.  Similarly, Miami-Dade County has required since the 1970s that art be provided in the amount of 1.5% of total construction costs for any governmental development, including private development on public land.  The County’s program has yielded several notable works of public art, including the “Red M” by Roberto Behar and Rosario Marquardt at the Riverwalk Metromover station and “Slide Mantra” by Isamu Noguchi.  The recently installed floors in Terminal D at Miami International Airport are also a product of the County’s program.  Other local jurisdictions, including the City of Miami Beach, have more recently adopted similar programs.

Earlier this year, the City of Miami adopted a requirement that public art be installed in new public buildings, but declined at that time to extend the program to private development in the City.  However, the City is now considering a new ordinance  that would extend such requirements to all private development, not just private development on public land, which would therefore make the City’s program the most expansive in South Florida.  If adopted, the new ordinance would require public art to be provided at new privately constructed buildings that is equal to up to 1.25% of the total construction cost or, in the alternative, a payment of up to 1% of construction costs may be made to an art fund. Continue Reading

Extension of Property Tax Discount in Miami-Dade and Potentially Other Counties

On September 4, 2017, Governor Scott issued Executive Order 17-235 in response to anticipated severe damage across Florida due to Hurricane Irma. The Executive Order granted the Florida Department of Revenue authority to issue an Emergency Order to waive and extend the local taxing authorities’ compliance deadlines related to the budget process and associated setting of millages and special assessment rates.

On September 6, 2017, the Department of Revenue, pursuant to the authority granted under Executive Order 17-235, issued an Emergency Order, as amended on September 8, 2017, suspending the compliance deadlines for the budget approval process and the setting of millage and special assessment rates for ad valorem and non-ad valorem taxes.

Miami-Dade County utilized the extension through its budget adoption hearing process and is availing itself of the extended time frames to delay mailing of the tax notices, which in turn extends the statutory early payment discount until 30 days from the mailing of the tax notices. Continue Reading

P3 Legislative Update

Legislators at both the state and local level have been busy introducing and considering new legislation that could impact the government procurement process and public/private partnerships. These new provisions will fundamentally affect the way business is done with any governmental entity, from basic discussions about potential P3 projects to the final negotiation of a contract for the provision of goods or services.

Bills currently in the state legislative pipeline will, if adopted, affect the Public Records Law. For example, House Bill 459 seeks to remove the trade secret exemption from the Public Records Law for all agencies where a trade secret exemption is currently in effect, resulting in an expansion in the scope of records that must be made public. In the context of procurement, the trade secret protection has allowed a bidder to propose alternative technical concepts or other ideas that the bidder views as a competitive advantage with a granting authority. That is why, on the other hand, House Bill 461 seeks to solidify the exemption from the public records requirements for trade secrets, and provide a process by which the exemption can be enforced. The bill puts the onus on the firm holding the trade secret to defend it. If a public records request seeks documents containing the trade secrets, the firm must file an action in circuit court seeking a declaratory judgment that the record in fact does contain a trade secret to prevent disclosure. Finally, Senate Bill 192 provides a narrow exemption from the Florida Public Records Law for fact-finding exercises by a board or commission, which is consistent with existing Florida caselaw. These proposed bills are just a few among others that are being introduced this year. We are closely monitoring each bill to make sure that your business is ready for any change in the already complex government approval and procurement process. Continue Reading

Creativity in Funding Necessary for Miami-Dade Civil Courthouse P3 Success

As Miami-Dade County continues to take steps towards the launch of a proposed civil courthouse public-private partnership (P3), its representatives have stressed the need to bring the right deal to market, balancing the community’s goals of improved court capacity and accessibility with existing funding challenges.  The final project could combine an availability model DBFOM with real estate development, which would create a unique opportunity for international equity investors and construction companies to partner with real estate developers familiar with the Miami market.

The population of Miami-Dade County today is twenty-five times greater than it was when the County planned its existing courthouse facility in 1925.  To facilitate the increased judicial demand that comes with population growth, courthouse services have since been spread across the County.  The County has long recognized the need to improve its existing judicial infrastructure.  In 2014, the County sought to fund construction of a new courthouse through the issuance of general obligation bonds.  However, the bond financing was not favored by voters.  While the County continues to leave open the possibility of a different delivery model, the P3 model now appears to be the preferred approach to the courthouse project. Continue Reading

Third Annual P3 Hub South

The third annual P3 Hub South conference, hosted by the P3 Bulletin and in partnership with Bilzin Sumberg, is returning to Miami October 16th – 17th. This year’s conference hosts both local and national leaders in the public-private partnership (P3) industry who will participate in interviews, panels, and informal networking discussions. P3 projects related to transit, water, and social programs are among some of the topics that will be covered throughout the two-day event.

The conference begins on Monday, October 16, with a roundtable discussion, chaired by Bilzin Sumberg Land Development & Government Relations attorney Albert E. Dotson, Jr. The “speed-dating” format presents an opportunity for networking between delegates and public officials who will be matched to discuss P3 opportunities and developments in key markets within the region.

The day will end with a networking reception hosted by Bilzin Sumberg. The P3 team looks forward to introducing its newest member, Land Development & Government Relations attorney Andrej Micovic, who has substantial experience in the development, procurement, financing, construction, and purchase and sale of infrastructure and energy projects, in the United States and throughout Latin America. Continue Reading

Proposed Changes to Procurement Regulations May Facilitate P3s

Miami-Dade County, the largest jurisdiction in South Florida, is currently evaluating public-private partnerships (P3s) for several major infrastructure projects.  These include multi-billion-dollar upgrades to the County’s water and sewer infrastructure, new transportation infrastructure, and social infrastructure, including a new County courthouse.  As we have discussed in previous posts, the P3 model can be used to expedite delivery, reduce public costs, and transfer risks for major public projects of this type.  However, many P3s unfortunately do not make it out of the procurement phase, in part because existing procurement regulations were drafted decades ago, with traditional procurement, not P3s, in mind.

Fortunately, the County is currently considering two significant amendments to its procurement procedures, both of which may facilitate the utilization of the P3 model.   First, the Charter Review Task Force (which proposes changes to the County’s voter-adopted Charter, which in a sense serves as the County’s constitution) is considering a substantial restructuring of the procurement process. The proposed changes would, in effect, make the procurement process more administrative and less legislative, with more authority delegated to the County’s professional staff, as opposed to the elected officials.  Because P3s are generally more complex than traditional procurements, delegating more authority to professionals with appropriate expertise may help avoid pitfalls in the procurement process for P3s. Continue Reading

FDEP Issues Order to Restore Structural Damage Post Hurricane

Property Owners and Public and Private Entities:

On September 5, 2017, the Florida Department of Environmental Protection (“FDEP”) issued Emergency Final Order OGC. No. 17-0989 (the “Order”) in response to the anticipated widespread devastation across Florida caused by Hurricane Irma. In order to respond to the imminent or immediate danger to the public health, safety, and welfare of the citizens of the State of Florida, FDEP provided an order to allow property owners and public and private entities to repair, replace, and restore structures, equipment, surface water management systems, works, and other systems damaged by the hurricane without obtaining prior permits, which would cause significant delays. The following regulated areas are impacted by the Order:

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P3s for Social Impact

Government agencies at all levels are increasingly turning to public-private partnerships (P3s) for the delivery of new public infrastructure.  However, the discussion often focuses exclusively on transportation infrastructure, including roads, bridges, and mass transit.  This focus is understandable: throughout the country, government transportation agencies, such as the Florida Department of Transportation, have been on the cutting edge of P3s and have many successful projects to show for it.  In addition, our nation’s transportation infrastructure needs are severe and wide-ranging.  However, the focus on transportation infrastructure short-changes the flexibility and benefit of the P3 model, which can be used to develop and operate many types of infrastructure, including social infrastructure.

Florida’s authorizing statute for P3s is incredibly broad and authorizes P3 proposals for a wide variety of social infrastructure, including medical facilities, schools, and recreational facilities.  For example, Monroe County recently utilized the statute to develop and operate an animal-control shelter in Key West using the P3 model, and the City of St. Augustine recently received an unsolicited P3 proposal for the construction and operation of a community health clinic for local veterans. The sky is the limit. Continue Reading

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