Requires the board of land and natural resources to develop a request for proposals for competitive sealed proposals to construct, design, improve, operate, maintain, and manage a world-class aquarium in the State.

A BILL FOR AN ACT

SECTION 1. The legislature finds that there is a need for the construction of a world-class aquarium in the State. A feasibility study has already concluded that a new aquarium would become a much-needed, major island attraction.

For example, a market study prepared for the Hawaii community development authority by the Lyon Group has already found that a new, world-class aquarium at Kakaako’s waterfront could attract 775,000 visitors annually, generate an operating surplus of $3,500,000 annually, and pay for itself without requiring the investment of State funds. It was anticipated that a new aquarium facility would cost between $37,000,000 and $60,000,000 to build, depending on the amount of space to be developed. It has been proposed that up to $30,000,000 of this amount could be raised by private grants and donations, after which the aquarium could pay for itself through its operating revenues.

However, the legislature finds that it would be preferable to develop a request for proposals for this purpose, in order to allow a private contractor to build and maintain the aquarium. The legislature finds that providing for the contracting out of this project would help to increase efficiency and economy in the delivery of government services. The legislature further finds that a privately built, world-class aquarium would complement the Waikiki aquarium, which is designated as the official state aquarium pursuant to section 304-30, Hawaii Revised Statutes.

The purpose of this Act is therefore to require the board of land and natural resources to develop a request for proposals for competitive sealed proposals to construct, design, improve, operate, maintain, and manage a world-class aquarium in the State.

SECTION 2. Definitions. As used in this Act, unless the context otherwise requires: "Board" means the board of land and natural resources. "Contractor", "private contractor", or "private entity" means a person who has entered into a contract with the State pursuant to this Act.

"Department" means the department of land and natural resources.

SECTION 3. Authority to contract. (a) The board shall contract with a private entity for the construction, design, improvement, operation, maintenance, and management of a world-class aquarium in the State as provided in this Act.

(b) No contract shall be entered into or renewed unless the board determines that the contract offers at least the same quality of services as could be provided by the State. The contract shall be approved as to form and content by the attorney general.

SECTION 4. Request for proposals; prequalification of applicants. (a) The board shall develop a request for proposals for competitive sealed proposals to construct, design, improve, operate, maintain, and manage a world-class aquarium in the State, which shall be calculated to generate proposals from applicants on a list who have been prequalified by the board and shall be applicable to any contract between the State and any private entity entered into under the authority of this Act.

(b) Standards for prequalification of applicants under this section shall be determined by the board before the commencement of the selection process; provided that any contract entered into under this Act for the construction, design, improvement, operation, maintenance, and management of an aquarium, at a minimum, shall be negotiated with the private entity found to be the most qualified. The private entity shall demonstrate that it has the qualifications, experience, and personnel necessary to carry out the terms of the contract, and the ability to comply with applicable laws.

(c) Any contract entered into pursuant to this Act shall include the following specific provisions:

SECTION 5. Contract term and renewal. The initial contract for the construction, design, improvement, operation, maintenance, and management of a world-class aquarium shall be for a period of not less than years, and may be renewed for successive       year periods thereafter.

SECTION 6. Monitoring; right to access. (a) The State, at the contractor's expense, shall employ an individual to be responsible for monitoring all aspects of the private contractor's performance under a contract entered into pursuant to this Act. The individual employed as contract monitor shall be qualified to perform this function by reason of education, training, and experience as determined by the board. The monitor, with the approval of the board, shall appoint staff as necessary to assist in monitoring, which staff shall be at the contractor's expense and shall be solely responsible to the contract monitor. The monitor or the monitor's designee shall be provided an on-site work area by the contractor, shall be on-site on a daily basis, and shall have access to all areas of the aquarium at all times. The contractor shall provide any and all data, reports, and other materials that the monitor determines are necessary to carry out monitoring responsibilities under this section.

(b) The monitor shall be responsible to and report to the board at least monthly, and more often as necessary to ensure proper construction and operation of the aquarium, concerning the contractor's performance.

(c) Members of the public shall have the same right of access to the aquarium operated by a private contractor pursuant to this Act as they do to the Waikiki aquarium.

SECTION 7. Liability and sovereign immunity. (a) The contractor shall assume all liability arising under a contract entered into pursuant to this Act.

(b) The sovereign immunity of the State shall not extend to the contractor. Neither the contractor nor the insurer of the contractor may plead the defense of sovereign immunity in any action arising out of the performance of the contract, or as a defense in tort, or any other application, with respect to the performance of the contract.

SECTION 8. Insurance. (a) The contractor shall indemnify the State, including its officials and agents, against any and all liability. Proof of satisfactory insurance shall be required in an amount to be determined by the insurance commissioner. The attorney general shall determine the amount and manner of the indemnification.

(b) Subject to subsection (a), the contractor shall provide an adequate plan of insurance as determined by the insurance commissioner. In determining the adequacy of the plan, the contractor shall determine whether the insurance is adequate to:

SECTION 9. Termination of contract and resumption of control. (a) The State, upon demonstration that a breach of contract has occurred and that after the passage of a reasonable period of time the breach has not been cured, and without penalty to the State, may cancel a contract at any time upon giving a six-month written notice. A plan shall be developed by the contractor and approved by the State establishing the method by which the State will resume control of the aquarium upon contract termination.

(b) Any contract entered into under this Act shall provide that upon declaration by the State of any material breach of contract on the part of the private contractor, the State, if necessary, may assume immediate temporary control of the aquarium.

SECTION 10. Rulemaking authority. The board shall adopt rules pursuant to chapter 91, Hawaii Revised Statutes, as may be necessary to carry out this Act.

SECTION 11. Applicability of Act to other provisions of law. Any offense that if committed at an aquarium operated by the State would be a crime shall be a crime if committed at an aquarium operated by a private entity pursuant to a contract entered into under this Act.

SECTION 12. Evaluation of costs and benefits of contracts. The auditor shall evaluate the costs and benefits of any contract entered into under this Act. The evaluation shall include a comparison of the costs and benefits of constructing, designing, improving, operating, maintaining, and manageing a world-class aquarium by the State versus by a private contractor. The auditor shall also evaluate the performance of the private contractor at the end of the term of each contract and make recommendations to the speaker of the house of representatives and the president of the senate regarding whether to continue the contract.

SECTION 13. Prohibition. A bidder or potential bidder shall not have any contract with any member or employee of or consultant to any governmental entity responsible for awarding any contract under this Act from the time a request for proposals is issued until the time a contract is awarded, except if that contract is in writing or in a meeting for which notice was given as prescribed by law.

SECTION 14. Severability. If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 15. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 16. This Act shall take effect upon its approval.