New Jersey Administrative Code
Title 17 - TREASURY - GENERAL
Chapter 49 - PUBLIC-PRIVATE PARTNERSHIPS RULES
Subchapter 2 - DEFINITIONS
Section 17:49-2.1 - Definitions

Universal Citation: NJ Admin Code 17:49-2.1
Current through Register Vol. 55, No. 48, December 18, 2023

The following words and terms, as used in this chapter, shall have the following meanings, unless the context indicates otherwise.

"Approval letter" means the letter sent by the State Treasurer authorizing a public entity who has submitted a project for approval to proceed forward with final agreement with a private entity.

"Authority" means the New Jersey Economic Development Authority established pursuant to section 4 of P.L. 1974, c. 80 (N.J.S.A. 34:1B-4).

"Availability payment" means fixed payments to a private entity by a public entity in return for the design, construction, long-term operation and maintenance, and financing of the project. Availability payments shall only be permitted where a State or county college or university or State governmental entity is an applicant.

"Building project" means the construction, reconstruction, repair, alteration, improvement, or extension of any public building, structure, or facility constructed or acquired by a State government entity to house State government functions, including any infrastructure or facility used or to be used by the public or in support of a public purpose or activity.

"Bundling" means the use of a solicitation for multiple projects in one single contract, through a public-private partnership project delivery method, the result of which restricts competition. A project shall include only one project focus, operations, financing plan, and financial structure in order to seek project approval. Bundling is not permitted across multiple applicants.

"Charter school" means an entity established pursuant to N.J.S.A. 18A:36A-1et seq.

"Design-build contractor" means the entity that is contractually responsible for the performance of construction of a project as a member of a design-build team.

"Design-build team" means a contractually created combination of entities formed to undertake a construction project to be advanced using a design-build methodology, including design professionals responsible for the design and construction companies responsible for the construction, of such a project.

"Full financial and administrative responsibility" means control of all financial and operational requirements.

"Highway or transportation project" means the construction, reconstruction, repair, alteration, improvement, or extension of public expressways, freeways, and parkways, including bridges, tunnels, overpasses, underpasses, interchanges, rest areas, express bus roadways, bus pullouts and turnarounds, and park and ride facilities, including any infrastructure or facility used, or to be used, by the public, or in support of a public purpose or activity, provided that the project shall include an expenditure of at least $ 100 million in public funds or any expenditure in solely private funds.At no time shall morethan eight State highway projects be in process.

"Local government unit" means a county, a municipality, or any board, commission, committee, authority, or agency thereof that is subject to the provisions of the Local Public Contracts Law, P.L. 1971, c. 198 (N.J.S.A. 40A:11-1et seq.), including a housing authority or redevelopment agency created or continued under the Local Redevelopment and Housing Law, P.L. 1992, c. 79 (N.J.S.A. 40A:12A-1et seq.). A local government unit shall not include a public entity that has entered into a contract with a private firm or a public authority pursuant to the New Jersey Wastewater Treatment Public-Private Contracting Act, P.L. 1995, c. 216 (N.J.S.A. 58:27-19et seq.), for the provision of wastewater treatment services.

"No-Build" means the decision to not proceed with a project or procurement.

"Office of Public Finance" means the Office of Public Finance within the Department of the Treasury.

"Private entity" means a natural person, corporation, limited liability company, partnership, joint venture, or other private business entity that assumes full financial and administrative responsibility for the construction, reconstruction, repair, alteration, improvement, extension, operation, and/or maintenance of a building, structure, facility, or other structure, including a highway, for the benefit of the local government unit, school district, State governmental entity, or State or county collegeor university. A private entity, or its majority shareholder or parent company, shall meet at least the minimum qualification standards in existing statutes and rules issued by the relevant public entity involved in a project, and shall have participated in a lead role in at least two public-private projects or complex lease or lease back arrangements or other complex transactions, of at least $ 10 million in size, or $ 100 million in the case of highway or transportation projects, unless otherwise expressly stated in a public entity's solicitation, to be considered qualified to participate in a public-private partnership agreement.

1. Where the public entity is a school district, the private entity shall have a clearly articulated commitment to public education demonstrated by either a record of collaboration with elementary or secondary public or private schools in this State, or any other state, over the last two years or, alternatively, the private entity may demonstrate a clear commitment to public education through its charter, mission statement, or application for approval as a non-profit corporation, foundation, bylaws, or other organizing document.

2. Where a highway or transportation element is considered, regardless of the type of public entity involved, a private entity shall also be pre-qualified by the Department of Transportation.

"Project" means:

1. For a local government unit, the development, construction, reconstruction, repair, alteration, improvement, extension, operation, and maintenance, or any combination thereof, of any building, local or county road, vertical structure, or facility constructed or acquired by a local government unit to operate local government functions, including any infrastructure or facility used, or to be used, by the public, or in support of a public purpose or activity, including fixtures, furnishings, and equipment, as well as any site acquisition, provided that, with respect to a project, a qualifying project shall include an expenditure of at least $ 10 million in public funds, or any expenditure in solely private funds, and provided that the project is financed in whole by the private entity and the local unit retains full ownership of the land upon which the project is located.

2. For a school district, the planning, acquisition, demolition, construction, improvement, alteration, modernization, renovation, reconstruction, and/or capital maintenance of all or any part of a school facility, infrastructure, or any other personal property necessary for, or ancillary to, any school facility, and shall include fixtures, furnishings, and equipment, and shall also include, but is not limited to, site acquisition, site development, the services of design professionals, such as engineers and architects, construction management, legal services, financing costs, and administrative costs, and expenses incurred in connection with the project, where used by the public or in support of a public purpose or activity, provided the private entity assumes full financial and administrative responsibility for a project of, or for the benefit of, the school district, and provided that the project is financed in whole by the private entity. An investment of real estate by a school district, provided that ownership is retained by a school district, shall not violate the provisions of this chapter.

3. For a State government entity, the construction, reconstruction, repair, alteration, improvement, extension, and/or operation and maintenance of any public building, structure, or facility constructed or acquired by a State government entity to house State government functions, including any infrastructure or facility used, or to be used, by the public or in support of a public purpose or activity, and including any fixtures, furnishings, and equipment, provided that the private entity may assume full financial and administrative responsibility for the construction, reconstruction, repair, alteration, improvement, extension, operation, and maintenance of a building or highway of, or for the benefit of, the State government entity, and provided that the building or highway project is financed in whole or in part by the private entity and the State government entity retains full ownership of the land upon which the project is located.

4. For a State or county college or university, the on-campus or off-campus design, build, maintenance, financing, construction, reconstruction, repair, alteration, improvement, extension, management, and/or operation of a building, structure, or facility of, or for the benefit of, the State or county college or university, including any fixtures, furnishings, and equipment, provided that the private entity may assume full financial and administrative responsibility for the construction, reconstruction, repair, alteration, improvement, extension, management, or operation of a building, structure, or facility, of, or for, the benefit of the State or county college or university and, provided that the project is financed in whole or in part by the private entity and that the State or a State or county college or university, as applicable, retains full ownership of the land upon which the project is completed.

"Public building, road, structure, infrastructure, or facility" means any site building, road, structure, infrastructure, or facility used or to be used by a local government unit, including a housing authority or redevelopment agency created or continued under the Local Redevelopment and Housing Law, P.L. 1992, c. 79 (N.J.S.A. 40A:12A-1et seq.), to house a local government function or functions, including any infrastructure or facility used or to be used by the public, or in support of a public purpose or activity.

"Public-private partnership advisor" means an expert retained by the Office of Public Finance for purposes of assisting the State Treasurer's review of a project by completing a financial and technical review of a proposed public-private partnership project.

"Public-private partnership agreement" means an agreement entered into by a local government unit, a school district, State governmental entity, or a State or county college or university and a private entity for the purpose of permitting a private entity to assume full financial and administrative responsibility for the development, construction, reconstruction, repair, alteration, improvement, extension, operation, and maintenance of a project of, or for the benefit of, the local government unit, school district, or State governmental entity or a State or county college or university.

"Public-private partnership program" means the public-private partnership procurement model as authorized by P.L. 2018, c. 90.

"School district" means, consistent with the definition in N.J.S.A. 18A:7G-3, a local or regional school district established pursuant to Chapter 8 or Chapter 13 of Title 18A of the New Jersey Statutes, a county special services school district established pursuant to article 8 of Chapter 46 of Title 18A of the New Jersey Statutes, a county vocational school district established pursuant to article 3 of Chapter 54 of Title 18A of the New Jersey Statutes, a district under full State intervention pursuant to N.J.S.A. 18A:7A-34et seq., and a charter school established pursuant to N.J.S.A. 18A:36A-1et seq., that can demonstrate, to the satisfaction of the Commissioner of Education and the Chief Executive Officer of the Schools Development Authority, that a new school facility is necessary due to overcrowding, or the existing school facility is in need of replacement.

"State government entity" means the State or any department, agency, commission, or authority thereof subject to the public contracting provisions of P.L. 1954, c. 48 (N.J.S.A. 52:34-6et seq.), including the South Jersey Port Corporation created pursuant to "The South Jersey Port Corporation Act," P.L. 1968, c. 60 (N.J.S.A. 12:11A-1et seq.), and New Jersey Transit. State government entity shall not include any State institution of higher education.

"State or county college or university" means an institution of higher education organized pursuant to Chapter 64 or Chapter 64A of Title 18A of the New Jersey Statutes, and the New Jersey Institute of Technology, established pursuant to Chapter 64E of Title 18A of the New Jersey Statutes, Rowan University, established pursuant to Chapter 64M of Title 18A of the New Jersey Statutes, Montclair State University, established pursuant to Chapter 64N of Title 18A of the New Jersey Statutes, as well as Rutgers, the State University, established pursuant to Chapter 65 of Title 18A of the New Jersey Statutes.

"Stipend" means the payment of a private entity for work product submitted in response to a public-private partnership proposal released by a local government unit or State government entity, where the cost of the development of a proposal is significant and there is a substantial opportunity for innovation on the part of the local government unit or State government entity. All work product in this instance shall then be jointly owned, including the technologies, techniques, methods, processes, ideas, and information contained in the proposal, project design, and project financial plan, by the local government unit or State governmental entity.

"Tax Exempt Bond" means a bond issued by a municipal, county, State government, or other entity or political subdivision, including an independent authority, whose interest payments are not subject to Federal, State, or local income tax.

"Unsolicited proposal process" means the process required for consideration of an unsolicited proposal by a local government unit, school district, State entity, or State or county college or university, including the procedures for providing notice of receipt of an unsolicited proposal, solicitation of additional competitive proposals from qualified entities, evaluation and ranking of all proposals received, including the unsolicited proposal, public hearing regarding the proposed project, and determination of the selected proposal.

Adopted by 52 N.J.R. 898(a), effective 4/20/2020

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