Florida Senate - 2012                        COMMITTEE AMENDMENT
       Bill No. SB 576
       
       
       
       
       
       
                                Barcode 123866                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  02/13/2012           .                                
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       The Committee on Community Affairs (Bennett) recommended the
       following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Section 287.05712, Florida Statutes, is created
    6  to read:
    7         287.05712 Public-private partnerships.—
    8         (1) DEFINITIONS.—As used in this section, the term:
    9         (a) “Affected local jurisdiction” means any county or
   10  municipality in which all or a portion of a qualifying project
   11  is located.
   12         (b) “Appropriating body” means the body responsible for
   13  appropriating or authorizing funding to pay for a qualifying
   14  project.
   15         (c) “Develop” or “development” means to plan, design,
   16  develop, finance, lease, acquire, install, construct, or expand.
   17         (d) “Fees” means fees or other charges imposed by the
   18  private entity of a qualifying project for use of all or a
   19  portion of such qualifying project pursuant to a comprehensive
   20  agreement.
   21         (e) “Lease payment” means any form of payment, including a
   22  land lease, by a public entity to the private entity for the use
   23  of a qualifying project.
   24         (f) “Material default” means any default by the private
   25  entity in the performance of its duties which jeopardizes
   26  adequate service to the public from a qualifying project.
   27         (g) “Operate” means to finance, maintain, improve, equip,
   28  modify, repair, or operate.
   29         (h) “Private entity” means any natural person, corporation,
   30  general partnership, limited liability company, limited
   31  partnership, joint venture, business trust, public benefit
   32  corporation, nonprofit entity, or other private business entity.
   33         (i) “Proposal” means a detailed proposal accepted by a
   34  responsible public entity beyond a conceptual level of review at
   35  which issues such as fixing costs, payment schedules, financing,
   36  deliverables, and project schedule are defined.
   37         (j) “Qualifying project” means any:
   38         1. Public-purpose facility or project, including, but not
   39  limited to, a public school building and any functionally
   40  related and subordinate facility, including any stadium or other
   41  facility primarily used for school events.
   42         2. Building or facility that meets a public purpose and is
   43  developed or operated by or for any public entity.
   44         3. Improvements, including equipment, of buildings to be
   45  principally used by a public entity.
   46         4. Water, wastewater, or surface water management facility
   47  and other related infrastructure.
   48         (k) “Responsible public entity” means any county,
   49  municipality, or other political subdivision of the state; any
   50  public body politic and corporate; or any regional entity that
   51  serves a public purpose and has authority to develop or operate
   52  a qualifying project.
   53         (l) “Revenues” means all revenues, income, earnings, user
   54  fees, lease payments, or other service payments relating to the
   55  development or operation of a qualifying project, including, but
   56  not limited to, money received as grants or otherwise from the
   57  Federal Government, from any public entity, or from any agency
   58  or instrumentality of the foregoing in aid of a qualifying
   59  project.
   60         (m) “Service contract” means a contract entered into
   61  between a public entity and the private entity.
   62         (n) “Service payments” means payments to the private entity
   63  of a qualifying project pursuant to a service contract.
   64         (o) “Water or wastewater management facility” means a
   65  project for the treatment, storage, disposal, or distribution of
   66  water or wastewater.
   67         (2) LEGISLATIVE FINDINGS AND INTENT.—The Legislature finds
   68  that there is a public need for the construction or upgrade of
   69  facilities that are used predominantly for public purposes and
   70  that it is in the public’s interest to provide for the
   71  construction or upgrade of such facilities.
   72         (a) The Legislature also finds that:
   73         1. There is a public need for timely and cost-effective
   74  acquisition, design, construction, improvement, renovation,
   75  expansion, equipping, maintenance, operation, implementation, or
   76  installation of public projects, including educational
   77  facilities, water or wastewater management facilities and
   78  infrastructure, technology infrastructure, and any other public
   79  infrastructure and government facilities within the state which
   80  serve a public need and purpose, and that such public need may
   81  not be wholly satisfied by existing procurement methods.
   82         2. There are inadequate resources to develop new
   83  educational facilities, water or wastewater management
   84  facilities and infrastructure, technology infrastructure, and
   85  other public infrastructure and government facilities for the
   86  benefit of residents of this state, and that it has been
   87  demonstrated that public-private partnerships can meet these
   88  needs by improving the schedule for delivery, lowering the cost,
   89  and providing other benefits to the public.
   90         3. There are state and federal tax incentives that promote
   91  partnerships between public and private entities to develop and
   92  operate qualifying projects.
   93         4. A procurement under this section serves the public
   94  purpose of this section if such action facilitates the timely
   95  development or operation of qualifying projects.
   96         (b) The Legislature declares that it is the intent of this
   97  section to encourage investment in the state by private
   98  entities, to facilitate various bond financing mechanisms,
   99  private capital, and other funding sources for the development
  100  and operation of qualifying projects, including expansion and
  101  acceleration of such financing to meet the public need, and to
  102  provide the greatest possible flexibility to public and private
  103  entities contracting for the provision of public services.
  104         (3) ADOPTION OF GUIDELINES.—
  105         (a) Before requesting or considering a proposal for a
  106  qualifying project, a responsible public entity shall adopt and
  107  make publicly available guidelines that enable the public entity
  108  to comply with this section. Such guidelines must be reasonable,
  109  encourage competition, and guide the selection of projects under
  110  the purview of the public entity.
  111         (b) The guidelines must include:
  112         1. Opportunities for competition through public notice and
  113  the availability of representatives of the responsible public
  114  entity to meet with private entities considering a proposal.
  115         2. Reasonable criteria for choosing among competing
  116  proposals.
  117         3. Suggested timelines for selecting proposals and
  118  negotiating an interim or comprehensive agreement.
  119         4. Authorization for accelerated selection and review and
  120  documentation timelines for proposals involving a qualifying
  121  project that the responsible public entity deems a priority.
  122         5. Procedures for financial review and analysis which, at a
  123  minimum, include a cost-benefit analysis, an assessment of
  124  opportunity cost, and consideration of the results of all
  125  studies and analyses related to the proposed qualifying project.
  126  The procedures must also include requirements for disclosing
  127  such analysis to the appropriating body for review before the
  128  execution of an interim or comprehensive agreement.
  129         6. Consideration of the nonfinancial benefits of a proposed
  130  qualifying project.
  131         7. A mechanism for the appropriating body to review a
  132  proposed interim or comprehensive agreement before execution.
  133         8. Establishment of criteria for the creation and
  134  responsibilities of a public-private partnership oversight
  135  committee that includes members representing the responsible
  136  public entity and the appropriating body. Such criteria must
  137  include the scope, costs, and duration of the qualifying
  138  project, as well as whether the project involves or affects
  139  multiple public entities. If formed, the oversight committee
  140  shall be an advisory committee that reviews the terms of a
  141  proposed interim or comprehensive agreement.
  142         9. Analysis of the adequacy of the information released
  143  when seeking competing proposals and providing for the
  144  enhancement of that information, if deemed necessary, to
  145  encourage competition.
  146         10. Establishment of criteria, key decision points, and
  147  approvals required to ensure that the responsible public entity
  148  considers the extent of competition before selecting proposals
  149  and negotiating an interim or comprehensive agreement.
  150         11. The publishing and posting of public notice of a
  151  private entity’s request for approval of a qualifying project,
  152  including:
  153         a. Specific information and documentation to be released
  154  regarding the nature, timing, and scope of the project.
  155         b. A reasonable time period, as determined by the
  156  responsible public entity, of at least 45 days, which encourages
  157  competition and public-private partnerships in accordance with
  158  the goals of this section, during which time the responsible
  159  public entity is to receive competing proposals.
  160         c. A requirement for advertising the public notice and
  161  posting the notice on the Internet.
  162         12. A requirement that the responsible public entity engage
  163  the services of qualified professionals, which may include an
  164  architect, professional engineer, or certified public
  165  accountant, not otherwise employed by the responsible public
  166  entity, to provide an independent analysis regarding the
  167  specifics, advantages, disadvantages, and long-term and short
  168  term costs of a request by a private entity for approval of a
  169  qualifying project, unless the governing body of the public
  170  entity determines that such analysis should be performed by
  171  employees of the public entity.
  172         (4) PROCUREMENT PROCEDURES.—The responsible public entity
  173  may receive or solicit proposals and, with the approval of the
  174  Legislature, or other appropriate local government appropriation
  175  process as evidenced by approval of the project in the public
  176  entity’s work program, enter into agreements with private
  177  entities, or consortia thereof, for the building, upgrade,
  178  operation, ownership, or financing of facilities.
  179         (a) A responsible public entity may not consider any
  180  request by a private entity for approval of a qualifying project
  181  until the responsible public entity has adopted, or incorporated
  182  and made publicly available, in accordance with subsection (3),
  183  guidelines that enable the responsible public entity to comply
  184  with this section.
  185         (b) By rule, ordinance, or guideline as applicable, the
  186  responsible public entity shall establish an application fee for
  187  the submission of unsolicited proposals under this section. The
  188  fee must be sufficient to pay the costs of evaluating the
  189  proposal. The responsible public entity may engage the services
  190  of private consultants to assist in the evaluation.
  191         (c) The responsible public entity may request proposals
  192  from private entities for public-private projects or, if the
  193  public entity receives an unsolicited proposal, the public
  194  entity shall publish a notice in the Florida Administrative
  195  Weekly and a newspaper of general circulation at least once a
  196  week for 2 weeks stating that the public entity has received the
  197  proposal and will accept other proposals for the same project
  198  for 60 days after the initial date of publication. A copy of the
  199  notice must be mailed to each local government in the affected
  200  area.
  201         (d) A responsible public entity that is a school board or a
  202  county or municipality may enter into an interim or
  203  comprehensive agreement only with the approval of the local
  204  governing body.
  205         (e) Before approval, the responsible public entity must
  206  determine that the proposed project:
  207         1. Is in the public’s best interest;
  208         2. Does not require the use of state funds unless the
  209  project is for a facility that is owned by the responsible
  210  public entity or for a facility for which ownership will be
  211  conveyed to the responsible public entity;
  212         3. Has adequate safeguards in place to ensure that
  213  additional costs or service disruptions would not be imposed on
  214  the public and residents of the state in the event of default or
  215  cancellation of the agreement by the public entity;
  216         4. Has adequate safeguards in place to ensure that the
  217  responsible public entity or the private entity has the
  218  opportunity to add capacity to the proposed project and other
  219  facilities serving similar predominantly public purposes; and
  220         5. Would be owned by the responsible public entity upon
  221  completion or termination of the agreement and upon payment of
  222  all amounts financed.
  223         (f) Technical studies and independent analyses must comply
  224  with the following:
  225         1. A private entity must provide an investment-grade
  226  technical study prepared by a nationally recognized expert who
  227  is accepted by the national bond rating agencies. The private
  228  entity must also provide a finance plan, consistent with
  229  subsection (11), which identifies the project cost, revenues by
  230  source, financing, major assumptions, internal rate of return on
  231  private investments, and whether any government funds are
  232  assumed to deliver a cost-feasible project, and a total cash
  233  flow analysis beginning with implementation of the project and
  234  extending for the term of the agreement.
  235         2. In evaluating a request, including, but not limited to,
  236  the private entity’s technical study, the responsible public
  237  entity may rely upon internal staff reports prepared by
  238  personnel familiar with the operation of similar facilities or
  239  the advice of external advisors or consultants having relevant
  240  experience.
  241         (g) The responsible public entity must ensure that all
  242  reasonable costs to the state related to facilities which are
  243  not to be transferred to the responsible public entity are borne
  244  by the private entity. The responsible public entity must also
  245  ensure that all reasonable costs to the state and to
  246  substantially affected local governments and utilities which are
  247  related to the private facility are borne by the private entity
  248  for facilities that are owned by the private entity. For
  249  projects owned by the responsible public entity, the public
  250  entity may use state resources to assist with funding and
  251  financing the project as provided under the public entity’s
  252  enabling legislation.
  253         (5) PROJECT APPROVAL REQUIREMENTS.—A request by a private
  254  entity for approval of a qualifying project must be accompanied
  255  by the following material and information, unless waived by the
  256  responsible public entity:
  257         (a) A topographic map with a scale of 1:2,000 or other
  258  appropriate scale indicating the location of the qualifying
  259  project.
  260         (b) A description of the qualifying project, including the
  261  conceptual design of such facilities or a conceptual plan for
  262  the provision of services, and a schedule for the initiation of
  263  and completion of the qualifying project which includes the
  264  proposed major responsibilities and a timeline for activities to
  265  be performed by both the public and private entity.
  266         (c) A statement setting forth the method by which the
  267  private entity proposes to secure any necessary property
  268  interests required for the qualifying project.
  269         (d) Information relating to current plans for the
  270  development of facilities or technology infrastructure to be
  271  used by a public entity which is similar to the qualifying
  272  project being proposed by the private entity, if any, of each
  273  affected local jurisdiction.
  274         (e) A list of all permits and approvals required for the
  275  qualifying project from local, state, or federal agencies and a
  276  projected schedule for obtaining such permits and approvals.
  277         (f) A list of public water or wastewater management
  278  facilities, if any, which will be crossed by the qualifying
  279  project and a statement of the plans of the private entity to
  280  accommodate such crossings.
  281         (g) A statement setting forth the private entity’s general
  282  plans for financing the qualifying project, including the
  283  sources of the private entity’s funds and identification of any
  284  dedicated revenue source or proposed debt or equity investment
  285  on the behalf of the private entity.
  286         (h) The names and addresses of persons who may be contacted
  287  for further information concerning the request.
  288         (i) User fees, lease payments, and other service payments
  289  over the term of an interim or comprehensive agreement, and the
  290  methodology and circumstances for changes to such user fees,
  291  lease payments, and other service payments over time.
  292         (j) Any additional material and information that the
  293  responsible public entity may reasonably request.
  294         (6) PROJECT QUALIFICATION AND PROCESS.
  295         (a) Public-private partnerships shall be qualified by the
  296  responsible public entity as part of the procurement process
  297  outlined in the procurement documents if such process ensures
  298  that the private entity meets at least the minimum standards
  299  contained in the responsible public entity’s guidelines for
  300  qualifying professional architectural, engineering, and
  301  contracting services before submitting a proposal under the
  302  procurement.
  303         (b) The responsible public entity must ensure that
  304  procurement documents include provisions for the private
  305  entity’s performance and payment of subcontractors, including,
  306  but not limited to, surety bonds, letters of credit, parent
  307  company guarantees, and lender and equity partner guarantees.
  308  For those components of the qualifying project which involve
  309  construction, performance and payment bonds are required and are
  310  subject to the recordation, notice, suit limitation, and other
  311  requirements of s. 255.05. The responsible public entity shall
  312  balance the structure of the security package for the public
  313  private partnership which ensures performance and payment of
  314  subcontractors with the cost of the security to ensure the most
  315  efficient pricing. The procurement documents must contain
  316  contract provisions addressing termination, default, and exit
  317  transition obligations of the private entity.
  318         (c) After the public notification period has expired, the
  319  responsible public entity shall rank the proposals in order of
  320  preference. In ranking the proposals, the responsible public
  321  entity may consider factors that include, but need not be
  322  limited to, professional qualifications, general business terms,
  323  innovative engineering or cost-reduction terms, finance plans,
  324  and the need for state funds in order to deliver the project. If
  325  the public entity is not satisfied with the results of the
  326  negotiations, the public entity may terminate negotiations with
  327  the proposer. If these negotiations are unsuccessful, the
  328  responsible public entity may go to the second-ranked and lower
  329  ranked firms, in order, using this same procedure. If only one
  330  proposal is received, the responsible public entity may
  331  negotiate in good faith and, if the public entity is not
  332  satisfied with the results of the negotiations, the public
  333  entity may terminate negotiations with the proposer.
  334  Notwithstanding this subsection, the responsible public entity
  335  may reject all proposals at any point in the process up to
  336  execution of a contract with the proposer.
  337         (d)The responsible public entity shall perform an
  338  independent analysis, or other analysis in accordance with
  339  paragraph (4)(f), of the proposed public-private partnership
  340  which demonstrates the cost-effectiveness and overall public
  341  benefit at the following times:
  342         1.Before the procurement process; and
  343         2.Before awarding the contract.
  344         (e) The responsible public entity may approve the
  345  development or operation of an educational facility, a water or
  346  wastewater management facility and related infrastructure,
  347  technology infrastructure or other public infrastructure, or a
  348  governmental facility needed by the public entity as a
  349  qualifying project, or the design or equipping of a qualifying
  350  project so developed or operated, if:
  351         1. There is a public need for or benefit derived from a
  352  project of the type the private entity proposes as a qualifying
  353  project.
  354         2. The estimated cost of the qualifying project is
  355  reasonable in relation to similar facilities.
  356         3. The private entity’s plans will result in the timely
  357  acquisition, design, construction, improvement, renovation,
  358  expansion, equipping, maintenance, or operation of the
  359  qualifying project.
  360         (f) The responsible public entity may charge a reasonable
  361  fee to cover the costs of processing, reviewing, and evaluating
  362  the request, including, but not limited to, reasonable attorney
  363  fees and fees for financial, technical, and other necessary
  364  advisors or consultants.
  365         (g) Upon approval of a qualifying project, the responsible
  366  public entity shall establish a date for the commencement of
  367  activities related to the qualifying project. The responsible
  368  public entity may extend such date.
  369         (h) Approval of a qualifying project by the responsible
  370  public entity is subject to entering into a comprehensive
  371  agreement with the private entity.
  372         (7) NOTICE TO AFFECTED LOCAL JURISDICTIONS.—
  373         (a) Any private entity requesting approval from, or
  374  submitting a proposal to, a responsible public entity must
  375  notify each affected local jurisdiction by furnishing a copy of
  376  its request or proposal to each affected local jurisdiction.
  377         (b) Each affected local jurisdiction that is not a
  378  responsible public entity for the respective qualifying project
  379  shall, within 60 days after receiving such notice, submit any
  380  comments it may have in writing to the responsible public entity
  381  and indicate whether the facility is compatible with the local
  382  comprehensive plan, the local infrastructure development plans,
  383  the capital improvements budget, or other governmental spending
  384  plan. Such comments shall be given consideration by the
  385  responsible public entity before entering a comprehensive
  386  agreement with a private entity.
  387         (8) INTERIM AGREEMENT.—Before, or in connection with, the
  388  negotiation of a comprehensive agreement, the responsible public
  389  entity may enter into an interim agreement with the private
  390  entity proposing the development or operation of the qualifying
  391  project. An interim agreement does not obligate the responsible
  392  public entity to enter into a comprehensive agreement. An
  393  interim agreement must be limited to provisions that:
  394         (a) Authorize the private entity to commence activities for
  395  which it may be compensated related to the proposed qualifying
  396  project, including, but not limited to, project planning and
  397  development, design and engineering, environmental analysis and
  398  mitigation, surveys, or other activities concerning any part of
  399  the proposed qualifying project, and ascertaining the
  400  availability of financing for the proposed facility or
  401  facilities.
  402         (b) Establish the process and timing of the negotiation of
  403  the comprehensive agreement.
  404         (c) Contain any other provisions related to any aspect of
  405  the development or operation of a qualifying project which the
  406  responsible public entity and the private entity deem
  407  appropriate.
  408         (9) COMPREHENSIVE AGREEMENT.—
  409         (a) Before developing or operating the qualifying project,
  410  the private entity shall enter into a comprehensive agreement
  411  with the responsible public entity. The comprehensive agreement
  412  shall provide for:
  413         1. Delivery of maintenance, performance, and payment bonds
  414  and letters of credit in connection with the development or
  415  operation of the qualifying project in the forms and amounts
  416  satisfactory to the responsible public entity. For those
  417  components of the qualifying project which involve construction,
  418  the form and amount of the bonds must comply with s. 255.05.
  419         2. Review of plans and specifications for the qualifying
  420  project by the responsible public entity and approval by the
  421  responsible public entity if the plans and specifications
  422  conform to standards acceptable to the responsible public
  423  entity. This subparagraph does not require the private entity to
  424  complete the design of a qualifying project before the execution
  425  of a comprehensive agreement.
  426         3. Inspection of the qualifying project by the responsible
  427  public entity to ensure that the operator’s activities are
  428  acceptable to the public entity in accordance with the
  429  comprehensive agreement.
  430         4. Maintenance of a policy or policies of public liability
  431  insurance, copies of which shall be filed with the responsible
  432  public entity accompanied by proofs of coverage, or self
  433  insurance, each in the form and amount satisfactory to the
  434  responsible public entity and reasonably sufficient to ensure
  435  coverage of tort liability to the public and employees and to
  436  enable the continued operation of the qualifying project.
  437         5. Monitoring the practices of the private entity by the
  438  responsible public entity to ensure that the qualifying project
  439  is properly maintained.
  440         6. Reimbursement to be paid to the responsible public
  441  entity for services provided by the responsible public entity.
  442         7. Filing of appropriate financial statements on a periodic
  443  basis.
  444         8. Procedures governing the rights and responsibilities of
  445  the responsible public entity and the private entity in the
  446  event the comprehensive agreement is terminated or there is a
  447  material default by the private entity. Such procedures must
  448  include conditions governing assumption of the duties and
  449  responsibilities of the private entity by the responsible public
  450  entity and the transfer or purchase of property or other
  451  interests of the private entity by the responsible public
  452  entity.
  453         9. Fees, lease payments, or service payments as may be
  454  established by agreement of the parties. A copy of any service
  455  contract shall be filed with the responsible public entity. In
  456  negotiating user fees, the parties shall establish fees that are
  457  the same for persons using the facility under like conditions
  458  and that will not materially discourage use of the qualifying
  459  project. The execution of the comprehensive agreement or any
  460  amendment thereto constitutes conclusive evidence that the fees,
  461  lease payments, or service payments provided for comply with
  462  this section. Fees or lease payments established in the
  463  comprehensive agreement as a source of revenues may be in
  464  addition to, or in lieu of, service payments.
  465         10. Duties of the private entity, including terms and
  466  conditions that the responsible public entity determine serve
  467  the public purpose of this section.
  468         (b) The comprehensive agreement may include:
  469         1. An agreement by the responsible public entity to make
  470  grants or loans to the private entity from amounts received from
  471  the federal, state, or local government or any agency or
  472  instrumentality thereof.
  473         2. Provisions under which each entity agrees to provide
  474  notice of default and cure rights for the benefit of the other
  475  entity, including, but not limited to, provisions regarding
  476  unavoidable delays.
  477         3. Provisions whereby the authority and duties of the
  478  private entity under this section will cease and the qualifying
  479  project be dedicated to the responsible public entity or, if the
  480  qualifying project was initially dedicated by an affected local
  481  jurisdiction, to such affected local jurisdiction for public
  482  use.
  483         (10) FEES.—
  484         (a) Agreements entered into pursuant to this section may
  485  authorize the private entity to impose fees for the use of the
  486  facility. The following provisions apply to such agreements:
  487         1. The public-private partnership agreement must ensure
  488  that the facility is properly operated, maintained, and renewed
  489  in accordance with the responsible public entity’s standards.
  490         2. The responsible public entity may develop new facilities
  491  or increase capacity in existing facilities through public
  492  private partnerships.
  493         3. The responsible public entity may lease existing fee
  494  for-use facilities through public-private partnerships.
  495         4. Any revenues must be regulated by the responsible public
  496  entity pursuant to guidelines or rules established pursuant to
  497  subsection (3). The regulations governing the future increase of
  498  fees must be included in the public-private partnership
  499  agreement.
  500         (b) The responsible public entity shall include provisions
  501  in the public-private partnership agreement which ensure that a
  502  negotiated portion of revenues from fee-generating projects are
  503  returned to the public entity over the life of the agreement. In
  504  the case of a lease of an existing facility, the responsible
  505  public entity shall receive a portion of funds upon closing on
  506  the agreements and also a portion of excess revenues over the
  507  life of the public-private partnership.
  508         (11) FINANCING.—
  509         (a) A private entity may enter into private-source
  510  financing agreements between financing sources and the private
  511  entity. All financing agreements and any liens on the property
  512  or facility must be paid in full at the applicable closing that
  513  transfers ownership of a facility to a responsible public
  514  entity.
  515         (b) The responsible public entity may lend funds from its
  516  trust fund to private entities that construct projects
  517  containing facilities that are approved under this section. To
  518  be eligible, a private entity must comply with s. 215.97 and
  519  must provide an indication from a nationally recognized rating
  520  agency that the senior bonds for the project will be investment
  521  grade, or must provide credit support, such as a letter of
  522  credit or other means acceptable to the responsible public
  523  entity, to ensure that the loans will be fully repaid. The
  524  state’s liability for the funding of a facility is limited to
  525  the amount approved for that specific facility in the
  526  responsible public entity’s 5-year work program adopted pursuant
  527  to the responsible public entity’s rules, or otherwise limited
  528  to 15 percent of the responsible public entity’s total funding
  529  for similar projects in a given fiscal year.
  530         (c) The responsible public entity may use innovative
  531  finance techniques associated with a public-private partnership
  532  under this section, including, but not limited to, federal loans
  533  as provided in Titles 23 and 49 C.F.R., commercial bank loans,
  534  and hedges against inflation from commercial banks or other
  535  private sources. A responsible public entity may use the model
  536  financing agreement provided pursuant to s. 489.145(6) for its
  537  financing of a facility owned by a responsible public entity. A
  538  financing agreement may not require the responsible public
  539  entity to indemnify the financing source, subject the
  540  responsible public entity’s facility to liens in violation of s.
  541  11.066(5), or secure financing by a responsible public entity
  542  with a pledge of security interest, and any such provisions are
  543  void.
  544         (12) POWERS AND DUTIES OF THE PRIVATE ENTITY.—
  545         (a) The private entity shall:
  546         1. Develop or operate the qualifying project in a manner
  547  that is acceptable to the responsible public entity in
  548  accordance with the provisions of an interim or comprehensive
  549  agreement.
  550         2. Maintain, or provide by contract for the maintenance or
  551  upgrade of, the qualifying project if required by an interim or
  552  comprehensive agreement.
  553         3. Cooperate with the responsible public entity in making
  554  best efforts to establish any interconnection with the
  555  qualifying project requested by the responsible public entity.
  556         4. Comply with an interim or comprehensive agreement and
  557  any lease or service contract.
  558         (b) Each private facility constructed pursuant to this
  559  section must comply with all requirements of federal, state, and
  560  local laws; state, regional, and local comprehensive plans;
  561  responsible public entity rules, procedures, and standards for
  562  facilities; and any other conditions that the responsible public
  563  entity determine to be in the public’s best interest.
  564         (c) The responsible public entity may exercise any power
  565  possessed by it, including eminent domain, to facilitate the
  566  development and construction of projects pursuant to this
  567  section. The responsible public entity may provide services to
  568  the private entity. Agreements for maintenance and other
  569  services entered into pursuant to this section must provide for
  570  full reimbursement for services rendered for projects.
  571         (d) A private entity of a qualifying project may provide
  572  additional services for the qualifying project to public or
  573  private entities other than the responsible public entity if the
  574  provision of additional service does not impair the private
  575  entity’s ability to meet its commitments to the public entity
  576  pursuant to an interim or comprehensive agreement.
  577         (13) EXPIRATION OR TERMINATION OF AGREEMENTS.—Upon
  578  expiration or termination of an interim or comprehensive
  579  agreement, the responsible public entity may use revenues to pay
  580  current operation and maintenance costs of the qualifying
  581  project, as well as compensation to the responsible public
  582  entity for its services in developing and operating the
  583  qualifying project. Except as provided otherwise in the interim
  584  or comprehensive agreement, the right to receive such payment,
  585  if any, is considered just compensation for the qualifying
  586  project in the event termination is due to the default of the
  587  private entity; however, this right does not affect the right of
  588  the responsible public entity to terminate, with cause, an
  589  interim or comprehensive agreement and to exercise any other
  590  rights and remedies that may be available to it at law or in
  591  equity. The full faith and credit of the responsible public
  592  entity may not be pledged to secure any financing of the private
  593  entity by the election to take over the qualifying project.
  594  Assumption of the development or operation of the qualifying
  595  project does not obligate the responsible public entity to pay
  596  any obligation of the private entity from sources other than
  597  revenues.
  598         (14) SOVEREIGN IMMUNITY.—This section does not waive the
  599  sovereign immunity of the state, any responsible public entity,
  600  any affected local jurisdiction, or any officer or employee
  601  thereof with respect to participation in, or approval of, all or
  602  any part of the qualifying project or its operation, including,
  603  but not limited to, interconnection of the qualifying project
  604  with any other infrastructure or project. Counties and
  605  municipalities in which a qualifying project is located possess
  606  sovereign immunity with respect to the project’s design,
  607  construction, and operation.
  608         (15) CONSTRUCTION.—This section shall be liberally
  609  construed to effectuate the purposes thereof.
  610         (a) This section does not affect the authority of the
  611  responsible public entity to take action that would impact the
  612  debt capacity of the state.
  613         (b) This section does not limit the state or its agencies
  614  in the acquisition, design, or construction of public projects
  615  pursuant to other statutory authority.
  616         (c) Except as otherwise provided in this section, this
  617  section does not amend existing laws by granting additional
  618  powers to, or further restricting, local governmental entities
  619  from regulating and entering into cooperative arrangements with
  620  the private sector for the planning, construction, and operation
  621  of facilities.
  622         Section 2. This act shall take effect July 1, 2012.
  623  
  624  ================= T I T L E  A M E N D M E N T ================
  625         And the title is amended as follows:
  626         Delete everything before the enacting clause
  627  and insert:
  628                        A bill to be entitled                      
  629         An act relating to public-private partnerships;
  630         creating s. 287.05712, F.S.; providing definitions;
  631         providing legislative findings and intent relating to
  632         the construction or upgrade of facilities by private
  633         entities which are used predominately for a public
  634         purpose; requiring public entities to develop and
  635         adopt guidelines governing procedures and criteria for
  636         the selection of projects and public-private
  637         agreements; providing procurement procedures;
  638         providing project-approval requirements; providing
  639         project qualifications and process; providing for
  640         notice to affected local jurisdictions; providing for
  641         interim and comprehensive agreements between the
  642         public and private entities; providing for use fees;
  643         providing for private financing requirements;
  644         providing powers and duties for private entities;
  645         providing for expiration or termination of agreements;
  646         providing for the applicability of sovereign immunity
  647         for public entities with respect to qualified
  648         projects; providing for construction of the act;
  649         providing an effective date.