P.R. Laws tit. 23, § 2910
(a) The Authority, through administrative concession contracts, lease contracts, or any other type of contract, may contract with one or several persons to carry out the various phases or combinations thereof for the design, development, construction, financing, operation, and maintenance of the Port of the Americas, subject to conditions and following the procedures detailed in this section. Private funds may be used to defray the costs of any or all such phases.
(b) The Authority is hereby conferred the capacity to grant administrative concession contracts for the design, development, construction, financing, operation, and maintenance of the Port of the Americas to the person or persons selected by the Authority under the provisions of this section, the execution of which shall be subject to the approval of the Governor or of the executive official to whom such duty has been delegated, under terms and conditions that comply with the requirements of this chapter.
(c) To carry out the design, development, construction, financing, operation, and maintenance of the Port of the Americas, the Authority may use, among other modalities: design/build, design/build/operate, design/build/transfer/operate, and design/build/operate/transfer contracts, as well as turnkey contracts, long term lease contracts, administrative concession contracts, and other types of contracts that separate or combine the design, development, construction, financing, operation and maintenance phases. Such contracts shall be awarded through a request for proposal and negotiation process as established in this section, and the procedures described in § 2911 of this title shall not be applicable thereto.
(d) General terms and conditions applicable to the development of the port. —
(1) The contract with the entity or entities that will build the port’s facilities shall provide that once the construction of such facilities is completed or, at the board’s option, once the term of the contract for the operations of such facilities has expired, ownership thereof shall be transferred to the municipality where such facilities were built, the Authority, or the Commonwealth of Puerto Rico, as determined by the board in accordance with the law, and, if applicable, pursuant to the obligations of the lease contract with the municipality of Ponce.
(2) The lands and other properties or rights necessary for the construction of the facilities of the Port of the Americas may be acquired or leased on a long term basis by the Authority or the Commonwealth of Puerto Rico. In case of acquisition, the contracted entity may acquire, subject to the standards established therefor by the Authority, such necessary lands, properties, or rights directly from their owners, through purchase or lease, in which case such property or lease rights shall be transferred immediately to the Authority or to the Commonwealth of Puerto Rico. The cost of acquisition may be financed by said entity. Should the acquisition through eminent domain be necessary, the contracted entity may be required to advance any amounts needed for the acquisition of the lands, properties, or rights in question to the Authority or to the Commonwealth of Puerto Rico. In case of a voluntary purchase as well as in cases of acquisition through eminent domain, the costs of acquisition shall include the cost to relocate the persons affected pursuant to applicable law, and any other expenses incidental to the acquisition of the right in question.
(3) Upon conclusion of the project’s construction phase, the person awarded the operating phase contract shall be responsible for maintaining the Port of the Americas and its annexed facilities in the conditions for operation and use specified in the contract.
(4) The activities related to the design, construction, operation, administration, and maintenance of the facilities of the Port of the Americas shall be considered, for all legal purposes, eligible activities covered under the provisions of §§ 8630 et seq. of Title 13.
(5) The Authority may negotiate and execute with the person or persons awarded any contract for the development or construction of the port those finance contracts or any other type of contract or instrument necessary or convenient in order to finance the development and construction of the port’s facilities through the issuance of bonds of the Authority.
(e) The qualification and selection of proponents and the negotiation of the contracts with the entity(ies) selected shall be carried out pursuant to the processes and standards established by the board which shall be consistent with the following principles:
(1) The board shall establish by regulations the procedures and guidelines that will govern the proponent selection and the contract negotiation process, including the request for proposals process, in order to expedite the proponent selection and evaluation process; obtain proposals from proponents qualified to carry out this project; promote competition among the proponents, if more than one, and, contingent upon the consideration of all the relevant factors as established by the board, maximize the benefits for Puerto Rico.
(2) During the proponent selection and evaluation processes, the confidentiality of the information provided by the proponents and the information related to the proposal selection, evaluation, and adjudication process shall be governed by the criteria on confidentiality established by the board. The information submitted by the proponents shall be public once the board of directors has awarded the contract, except for that information which constitutes:
(A) Trade secrets,
(B) proprietary information, and
(C) privileged or confidential information.
(3) The regulations adopted by the board to conduct the proponent selection and negotiation process with the proponent(s) selected shall include the criteria that the board will apply in making its decisions as to the qualification and selection of the proponents and the awarding of the contracts. The selection criteria must include, without it being construed as a limitation or that the order provided herein defines their importance, the following:
(A) The proponent’s commercial and financial reputation and its financial, technical, or professional capacity, as well as the proponent’s experience in designing, developing, operating, and maintaining port facilities. All proponents shall certify that neither they nor their officers or agents have been subject to formal accusations or convictions for acts of corruption in Puerto Rico or in any foreign country.
(B) The quality of the proponent’s proposal with respect to, among other factors, the design, engineering, and estimated construction time.
(C) The capital the proponent is willing to invest and the time needed to recover said capital.
(D) The proponent’s financing plans and said proponent’s financial capacity to carry them out.
(E) The fees the operator intends to charge, the internal rate of return used by the proponent and the projected flow of net revenues.
(F) The terms of the contract with the Authority that the proponent is willing to accept.
(4) The board shall approve the contract or contracts it determines, at its discretion, best meet the criteria established by the Board.
(f) Contracts with the contracted entity. —
(1) The contract with the contracted entity may include the design, development, construction, financing, operation, and maintenance of the Port of the Americas facilities, or at the board’s discretion, any of these phases may be part of another separate contract with the same person or with a different person. The executive director of the Authority shall be responsible for negotiating the terms and conditions of the contracts referred to in this section. Such contracts must be approved by the board and shall be subject to the standards established in this section.
(2) The board shall have the power to allow the contracted entity to assign, sublease, grant a subconcession, or encumber its interests under the contract with the Authority. The Authority may determine and establish in the contract with the contracted entity the conditions under which the contracted entity may assign, sublease, grant a subconcession, or encumber such interests.
(3) Any contract executed by the Authority that includes the operation and maintenance phases of the Port of the Americas:
(A) May be negotiated as a lease, surface right, or administrative concession, and may be recorded pursuant to the law and may, at the board’s option, grant exclusive rights to the operator.
(B) Shall have such a term as the board of directors deems reasonable.
(C) May contain provisions for the Authority to grant to the operator the power to administer the Port and to determine, fix, alter, impose, and charge fees, rents, rates, and any other type of fee for the use of the Port’s facilities or for the services rendered by the operator, under those terms and conditions established in said contract that are consistent with the provisions of this chapter.
(4) The contracted entity to whom a construction and/or operation and maintenance contract is awarded shall post, in favor of the Authority, a performance bond guaranteeing the faithful compliance with all the obligations of the contract, the amount of which shall be determined by the board, based on the expected investment for the project or the work or stage involved.
(5) The financial and contractual obligations of the Authority under the contract with the developer and operator of the Port of the Americas may be guaranteed by: (A) the Commonwealth of Puerto Rico through guarantee documents signed by the Governor, and (B) the Government Development Bank for Puerto Rico; and the Governor is hereby authorized to enter into guarantee agreements on behalf of the Commonwealth of Puerto Rico under the terms and conditions he or she shall deem reasonable, and the Government Development Bank for Puerto Rico is also authorized to enter into such guarantee agreements under the terms and conditions it deems reasonable, with the approval of its board of directors, and to make payments under such guarantee; Provided, That, any payment made by the bank under such guarantee shall be reimbursed through budget appropriations; and on or before December 31 of each year in which such payments are made, the bank shall certify to the Director of the Office of Management and Budget the payments made under such guarantees and the certified amount shall be included by the Office of Management and Budget in the next annual budget of the Government of the Commonwealth of Puerto Rico.
(6) Once the original term of the contract covering the operation, administrative, and maintenance phases of the port has expired, said contract may be extended under the terms and conditions which the board determines to be reasonable, or the board may conduct a new selection process for the operator of the port following the procedures established in this chapter and in the Authority’s regulations, or it may transfer the port’s operation to the control of the Authority under the conditions established in the contract.
(g) The contracted entity for the port’s operation and maintenance phases may charge the port’s users those fees, rates, or rents established or allowed in the contract between the contracted entity and the Authority. The contract may authorize the operator to establish the fees, rates, or rents it deems necessary.
(h) The procedures and actions authorized by this section are hereby exempted from the provisions of §§ 2101 et seq. of Title 3, known as the “Uniform Administrative Procedures Act of the Commonwealth of Puerto Rico”, except for the provisions of §§ 2171—2177 of Title 3 regarding judicial review.
History —Aug. 11, 2002, No. 171, § 11.