Florida Senate - 2013 COMMITTEE AMENDMENT Bill No. CS for SB 84 Barcode 210420 LEGISLATIVE ACTION Senate . House Comm: RCS . 03/14/2013 . . . . ————————————————————————————————————————————————————————————————— ————————————————————————————————————————————————————————————————— The Committee on Governmental Oversight and Accountability (Benacquisto) 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 a county, 10 municipality, or special district in which all or a portion of a 11 qualifying project is located. 12 (b) “Develop” means to plan, design, finance, lease, 13 acquire, install, construct, or expand. 14 (c) “Fees” means charges imposed by the private entity of a 15 qualifying project for use of all or a portion of such 16 qualifying project pursuant to a comprehensive agreement. 17 (d) “Lease payment” means any form of payment, including a 18 land lease, by a public entity to the private entity of a 19 qualifying project for the use of the project. 20 (e) “Material default” means a nonperformance of its duties 21 by the private entity of a qualifying project which jeopardizes 22 adequate service to the public from the project. 23 (f) “Operate” means to finance, maintain, improve, equip, 24 modify, or repair. 25 (g) “Private entity” means any natural person, corporation, 26 general partnership, limited liability company, limited 27 partnership, joint venture, business trust, public-benefit 28 corporation, nonprofit entity, or other private business entity. 29 (h) “Proposal” means a plan for a qualifying project with 30 detail beyond a conceptual level for which terms such as fixing 31 costs, payment schedules, financing, deliverables, and project 32 schedule are defined. 33 (i) “Qualifying project” means: 34 1. A facility or project that serves a public purpose, 35 including, but not limited to, any ferry or mass transit 36 facility, vehicle parking facility, airport or seaport facility, 37 rail facility or project, fuel supply facility, oil or gas 38 pipeline, medical or nursing care facility, recreational 39 facility, sporting or cultural facility, or educational facility 40 or other building or facility that is used or will be used by a 41 public educational institution, or any other public facility or 42 infrastructure that is used or will be used by the public at 43 large or in support of an accepted public purpose or activity; 44 2. An improvement, including equipment, of a building that 45 will be principally used by a public entity or the public at 46 large or that supports a service delivery system in the public 47 sector; or 48 3. A water, wastewater, or surface water management 49 facility or other related infrastructure. 50 (j) “Responsible public entity” means a county, 51 municipality, school board, or university, or any other 52 political subdivision of the state; a public body corporate and 53 politic; or a regional entity that serves a public purpose and 54 is authorized to develop or operate a qualifying project. 55 (k) “Revenues” means the income, earnings, user fees, lease 56 payments, or other service payments relating to the development 57 or operation of a qualifying project, including, but not limited 58 to, money received as grants or otherwise from the Federal 59 Government, a public entity, or an agency or instrumentality 60 thereof in aid of the qualifying project. 61 (l) “Service contract” means a contract between a public 62 entity and the private entity which defines the terms of the 63 services to be provided with respect to a qualifying project. 64 (2) LEGISLATIVE FINDINGS AND INTENT.—The Legislature finds 65 that there is a public need for the construction or upgrade of 66 facilities that are used predominantly for public purposes and 67 that it is in the public’s interest to provide for the 68 construction or upgrade of such facilities. 69 (a) The Legislature also finds that: 70 1. There is a public need for timely and cost-effective 71 acquisition, design, construction, improvement, renovation, 72 expansion, equipping, maintenance, operation, implementation, or 73 installation of projects serving a public purpose, including 74 educational facilities, transportation facilities, water or 75 wastewater management facilities and infrastructure, technology 76 infrastructure, roads, highways, bridges, and other public 77 infrastructure and government facilities within the state which 78 serve a public need and purpose, and that such public need may 79 not be wholly satisfied by existing procurement methods. 80 2. There are inadequate resources to develop new 81 educational facilities, transportation facilities, water or 82 wastewater management facilities and infrastructure, technology 83 infrastructure, roads, highways, bridges, and other public 84 infrastructure and government facilities for the benefit of 85 residents of this state, and that a public-private partnership 86 has demonstrated that it can meet the needs by improving the 87 schedule for delivery, lowering the cost, and providing other 88 benefits to the public. 89 3. There may be state and federal tax incentives that 90 promote partnerships between public and private entities to 91 develop and operate qualifying projects. 92 4. A procurement under this section serves the public 93 purpose of this section if such procurement facilitates the 94 timely development or operation of a qualifying project. 95 (b) It is the intent of the Legislature to encourage 96 investment in the state by private entities; to facilitate 97 various bond financing mechanisms, private capital, and other 98 funding sources for the development and operation of qualifying 99 projects, including expansion and acceleration of such financing 100 to meet the public need; and to provide the greatest possible 101 flexibility to public and private entities contracting for the 102 provision of public services. 103 (3) PUBLIC-PRIVATE PARTNERSHIP GUIDELINES TASK FORCE.- 104 (a) The Partnership for Public Facilities and 105 Infrastructure Act Guidelines Task Force is created to establish 106 guidelines for public entities on the types of factors public 107 entities should review and consider when processing requests for 108 public-private partnership projects pursuant to this section, 109 including consistent requirements for private entities seeking 110 to participate in the construction or development of a 111 qualifying project throughout the state. 112 (b) The task force shall consist of nine members, as 113 follows: 114 1. One member of the Senate, appointed by the President of 115 the Senate. 116 2. One member of the House of Representatives, appointed by 117 the Speaker of the House of Representatives. 118 3. The Secretary of Management Services or his or her 119 designee. 120 4. Six members appointed by the Governor, as follows: 121 a. One county government official. 122 b. One municipal government official. 123 c. One district school board member. 124 d. Three representatives of the business community. 125 (c) Task force members shall serve for a term of 2 years 126 each and shall elect a chair and a vice chair. The task force 127 shall meet as necessary. Administrative and technical support 128 shall be provided by the department. Task force members shall 129 serve without compensation, but are entitled to reimbursement 130 for per diem and travel expenses pursuant to s. 112.061. The 131 task force shall terminate on July 1, 2015. 132 (d) The task force shall provide guidelines to public 133 entities no later than July 1, 2014. The guidelines shall 134 include: 135 1. Opportunities for competition through public notice and 136 the availability of representatives of the responsible public 137 entity to meet with private entities considering a proposal. 138 2. Reasonable criteria for choosing among competing 139 proposals. 140 3. Suggested timelines for selecting proposals and 141 negotiating an interim or comprehensive agreement. 142 4. Authorization for accelerated selection and review and 143 documentation timelines for proposals involving a qualifying 144 project that the responsible public entity deems a priority. 145 5. Procedures for financial review and analysis which, at a 146 minimum, include a cost-benefit analysis, an assessment of 147 opportunity cost, and consideration of the results of all 148 studies and analyses related to the proposed qualifying project. 149 6. Consideration of the nonfinancial benefits of a proposed 150 qualifying project. 151 7. A mechanism for the appropriating body to review a 152 proposed comprehensive agreement before execution. 153 8. Analysis of the adequacy of the information released 154 when seeking competing proposals, and providing for the 155 enhancement of that information, if deemed necessary, to 156 encourage competition, as well as establishing standards to 157 maintain the confidentiality of financial and proprietary terms 158 of an unsolicited proposal, which shall be disclosed only in 159 accordance with the bidding procedures of competing proposals. 160 9. Authority for the responsible public entity to engage 161 the services of qualified professionals, which may include a 162 Florida-registered professional or a certified public 163 accountant, not otherwise employed by the responsible public 164 entity, to provide an independent analysis regarding the 165 specifics, advantages, disadvantages, and long-term and short 166 term costs of a request by a private entity for approval of a 167 qualifying project, unless the governing body of the public 168 entity determines that such analysis should be performed by 169 employees of the public entity. Professional services as defined 170 in s. 287.055 must be engaged pursuant to s. 287.055. 171 (e) The establishment of guidelines pursuant to this 172 section by the task force or the adoption of such guidelines by 173 a public entity is not required for the public entity to request 174 or receive proposals for a qualifying project or to enter into a 175 comprehensive agreement for a qualifying project. A public 176 entity may adopt guidelines before the establishment of 177 guidelines by the task force, which may remain in effect as long 178 as such guidelines are not inconsistent with the guidelines 179 established by the task force. A guideline that is inconsistent 180 with the guidelines of the task force must be amended as 181 necessary to maintain consistency with the task force 182 guidelines. 183 (4) PROCUREMENT PROCEDURES.—A responsible public entity may 184 receive unsolicited proposals or may solicit proposals for 185 qualifying projects and may thereafter enter into an agreement 186 with a private entity, or a consortium of private entities, for 187 the building, upgrading, operating, ownership, or financing of 188 facilities. 189 (a) The responsible public entity may establish a 190 reasonable application fee for the submission of an unsolicited 191 proposal under this section. The fee must be sufficient to pay 192 the costs of evaluating the proposal. The responsible public 193 entity may engage the services of a private consultant to assist 194 in the evaluation. 195 (b) The responsible public entity may request a proposal 196 from private entities for a public-private project or, if the 197 public entity receives an unsolicited proposal, the public 198 entity shall publish notice in the Florida Administrative 199 Register and a newspaper of general circulation at least once a 200 week for 2 weeks stating that the public entity has received a 201 proposal and will accept other proposals for the same project. 202 The timeframe within which the public entity may accept other 203 proposals shall be determined by the public entity on a project 204 by-project basis based upon the complexity of the project and 205 the public benefit to be gained by allowing a longer or shorter 206 period of time within which other proposals may be received; 207 however, the timeframe for allowing other proposals must be at 208 least 21 days, but no more than 120 days, after the initial date 209 of publication. A copy of the notice must be mailed to each 210 local government in the affected area. The scope of the proposal 211 may be publicized for the purpose of soliciting competing 212 proposals; however, the financial terms of the proposal may not 213 be disclosed until the terms of all competing bids are 214 simultaneously disclosed in accordance with the applicable law 215 governing procurement procedures for the qualifying project. 216 (c) A responsible public entity that is a school board may 217 enter into a comprehensive agreement only with the approval of 218 the local governing body. 219 (d) Before approval, the responsible public entity must 220 determine that the proposed project: 221 1. Is in the public’s best interest. 222 2. Is for a facility that is owned by the responsible 223 public entity or for a facility for which ownership will be 224 conveyed to the responsible public entity. 225 3. Has adequate safeguards in place to ensure that 226 additional costs or service disruptions are not imposed on the 227 public in the event of material default or cancellation of the 228 agreement by the responsible public entity. 229 4. Has adequate safeguards in place to ensure that the 230 responsible public entity or the private entity has the 231 opportunity to add capacity to the proposed project or other 232 facilities serving similar predominantly public purposes. 233 5. Will be owned by the responsible public entity upon 234 completion or termination of the agreement and upon payment of 235 the amounts financed. 236 (e) Before signing a comprehensive agreement, the 237 responsible public entity must consider a reasonable finance 238 plan that is consistent with subsection (11), the project cost, 239 revenues by source, available financing, major assumptions, 240 internal rate of return on private investments, if governmental 241 funds are assumed in order to deliver a cost-feasible project, 242 and a total cash-flow analysis beginning with the implementation 243 of the project and extending for the term of the agreement. 244 (f) In considering an unsolicited proposal, the responsible 245 public entity may require from the private entity a technical 246 study prepared by a nationally recognized expert with experience 247 in preparing analysis for bond rating agencies. In evaluating 248 the technical study, the responsible public entity may rely upon 249 internal staff reports prepared by personnel familiar with the 250 operation of similar facilities or the advice of external 251 advisors or consultants who have relevant experience. 252 (5) PROJECT APPROVAL REQUIREMENTS.—An unsolicited proposal 253 from a private entity for approval of a qualifying project must 254 be accompanied by the following material and information, unless 255 waived by the responsible public entity: 256 (a) A description of the qualifying project, including the 257 conceptual design of the facilities or a conceptual plan for the 258 provision of services, and a schedule for the initiation and 259 completion of the qualifying project. 260 (b) A description of the method by which the private entity 261 proposes to secure the necessary property interests that are 262 required for the qualifying project. 263 (c) A description of the private entity’s general plans for 264 financing the qualifying project, including the sources of the 265 private entity’s funds and the identity of any dedicated revenue 266 source or proposed debt or equity investment on behalf of the 267 private entity. 268 (d) The name and address of a person who may be contacted 269 for additional information concerning the proposal. 270 (e) The proposed user fees, lease payments, or other 271 service payments over the term of a comprehensive agreement, and 272 the methodology for and circumstances that would allow changes 273 to the user fees, lease payments, and other service payments 274 over time. 275 (f) Additional material or information that the responsible 276 public entity reasonably requests. 277 (6) PROJECT QUALIFICATION AND PROCESS.— 278 (a) The private entity must meet the minimum standards 279 contained in the responsible public entity’s guidelines for 280 qualifying professional services and contracts for traditional 281 procurement projects. 282 (b) The responsible public entity must: 283 1. Ensure that provision is made for the private entity’s 284 performance and payment of subcontractors, including, but not 285 limited to, surety bonds, letters of credit, parent company 286 guarantees, and lender and equity partner guarantees. For the 287 components of the qualifying project which involve construction 288 performance and payment, bonds are required and are subject to 289 the recordation, notice, suit limitation, and other requirements 290 of s. 255.05. 291 2. Ensure the most efficient pricing of the security 292 package that provides for the performance and payment of 293 subcontractors. 294 3. Ensure that provision is made for the transfer of the 295 private entity’s obligations if the comprehensive agreement is 296 terminated or a material default occurs. 297 (c) After the public notification period has expired in the 298 case of an unsolicited proposal, the responsible public entity 299 shall rank the proposals received in order of preference. In 300 ranking the proposals, the responsible public entity may 301 consider factors that include, but are not limited to, 302 professional qualifications, general business terms, innovative 303 design techniques or cost-reduction terms, and finance plans. If 304 the responsible public entity is not satisfied with the results 305 of the negotiations, the responsible public entity may terminate 306 negotiations with the proposer and negotiate with the second 307 ranked or subsequent-ranked firms in the order consistent with 308 this procedure. If only one proposal is received, the 309 responsible public entity may negotiate in good faith, and if 310 the public entity is not satisfied with the results of the 311 negotiations, the public entity may terminate negotiations with 312 the proposer. Notwithstanding this paragraph, the responsible 313 public entity may reject all proposals at any point in the 314 process until a contract with the proposer is executed. 315 (d) The responsible public entity shall perform an 316 independent analysis of the proposed public-private partnership 317 which demonstrates the cost-effectiveness and overall public 318 benefit before the procurement process is initiated or before 319 the contract is awarded. 320 (e) The responsible public entity may approve the 321 development or operation of an educational facility, a 322 transportation facility, a water or wastewater management 323 facility or related infrastructure, a technology infrastructure 324 or other public infrastructure, or a government facility needed 325 by the responsible public entity as a qualifying project, or the 326 design or equipping of a qualifying project that is developed or 327 operated, if: 328 1. There is a public need for or benefit derived from a 329 project of the type that the private entity proposes as the 330 qualifying project. 331 2. The estimated cost of the qualifying project is 332 reasonable in relation to similar facilities. 333 3. The private entity’s plans will result in the timely 334 acquisition, design, construction, improvement, renovation, 335 expansion, equipping, maintenance, or operation of the 336 qualifying project. 337 (f) The responsible public entity may charge a reasonable 338 fee to cover the costs of processing, reviewing, and evaluating 339 the request, including, but not limited to, reasonable attorney 340 fees and fees for financial and technical advisors or 341 consultants and for other necessary advisors or consultants. 342 (g) Upon approval of a qualifying project, the responsible 343 public entity shall establish a date for the commencement of 344 activities related to the qualifying project. The responsible 345 public entity may extend the commencement date. 346 (h) Approval of a qualifying project by the responsible 347 public entity is subject to entering into a comprehensive 348 agreement with the private entity. 349 (7) NOTICE TO AFFECTED LOCAL JURISDICTIONS.— 350 (a) The responsible public entity must notify each affected 351 local jurisdiction by furnishing a copy of the proposal to each 352 affected local jurisdiction when considering a proposal for a 353 qualifying project. 354 (b) Each affected local jurisdiction that is not a 355 responsible public entity for the respective qualifying project 356 may, within 60 days after receiving the notice, submit in 357 writing any comments to the responsible public entity and 358 indicate whether the facility is incompatible with the local 359 comprehensive plan, the local infrastructure development plan, 360 the capital improvements budget, or other governmental spending 361 plan. The responsible public entity shall consider the comments 362 of the affected local jurisdiction before entering into a 363 comprehensive agreement with a private entity. If an affected 364 local jurisdiction fails to respond to the responsible public 365 entity within the time provided in this paragraph, the 366 nonresponse is deemed an acknowledgement by the affected local 367 jurisdiction that the qualifying project is compatible with the 368 local comprehensive plan, the local infrastructure development 369 plan, the capital improvements budget, or other governmental 370 spending plan. 371 (8) INTERIM AGREEMENT.—Before or in connection with the 372 negotiation of a comprehensive agreement, the public entity may 373 enter into an interim agreement with the private entity 374 proposing the development or operation of the qualifying 375 project. An interim agreement does not obligate the responsible 376 public entity to enter into a comprehensive agreement. The 377 interim agreement is discretionary with the parties and is not 378 required on a qualifying project for which the parties may 379 proceed directly to a comprehensive agreement without the need 380 for an interim agreement. An interim agreement must be limited 381 to provisions that: 382 (a) Authorize the private entity to commence activities for 383 which it may be compensated related to the proposed qualifying 384 project, including, but not limited to, project planning and 385 development, design, environmental analysis and mitigation, 386 survey, other activities concerning any part of the proposed 387 qualifying project, and ascertaining the availability of 388 financing for the proposed facility or facilities. 389 (b) Establish the process and timing of the negotiation of 390 the comprehensive agreement. 391 (c) Contain such other provisions related to an aspect of 392 the development or operation of a qualifying project that the 393 responsible public entity and the private entity deem 394 appropriate. 395 (9) COMPREHENSIVE AGREEMENT.— 396 (a) Before developing or operating the qualifying project, 397 the private entity must enter into a comprehensive agreement 398 with the responsible public entity. The comprehensive agreement 399 must provide for: 400 1. The delivery of performance and payment bonds, letters 401 of credit, or other security acceptable to the responsible 402 public entity in connection with the development or operation of 403 the qualifying project in the form and amount satisfactory to 404 the responsible public entity. For the components of the 405 qualifying project which involve construction, the form and 406 amount of the bonds must comply with s. 255.05. 407 2. The review of the plans and specifications for the 408 qualifying project by the responsible public entity and, if the 409 plans and specifications conform to standards acceptable to the 410 responsible public entity, the approval of the responsible 411 public entity. This subparagraph does not require the private 412 entity to complete the design of the qualifying project before 413 the execution of the comprehensive agreement. 414 3. The inspection of the qualifying project by the 415 responsible public entity to ensure that the private entity’s 416 activities are acceptable to the public entity in accordance 417 with the comprehensive agreement. 418 4. The maintenance of a policy of public liability 419 insurance, a copy of which must be filed with the responsible 420 public entity and accompanied by proofs of coverage, or self 421 insurance, each in the form and amount satisfactory to the 422 responsible public entity and reasonably sufficient to ensure 423 coverage of tort liability to the public and employees and to 424 enable the continued operation of the qualifying project. 425 5. The monitoring by the responsible public entity of the 426 maintenance practices to be performed by the private entity to 427 ensure that the qualifying project is properly maintained. 428 6. The periodic filing by the private entity of the 429 appropriate financial statements that pertain to the qualifying 430 project. 431 7. The procedures that govern the rights and 432 responsibilities of the responsible public entity and the 433 private entity in the course of the construction and operation 434 of the qualifying project and in the event of the termination of 435 the comprehensive agreement or a material default by the private 436 entity. The procedures must include conditions that govern the 437 assumption of the duties and responsibilities of the private 438 entity by an entity that funded, in whole or part, the 439 qualifying project or by the responsible public entity, and must 440 provide for the transfer or purchase of property or other 441 interests of the private entity by the responsible public 442 entity. 443 8. In negotiating user fees, the fees must be the same for 444 persons using the facility under like conditions and must not 445 materially discourage use of the qualifying project. The 446 execution of the comprehensive agreement or a subsequent 447 amendment is conclusive evidence that the fees, lease payments, 448 or service payments provided for in the comprehensive agreement 449 comply with this section. Fees or lease payments established in 450 the comprehensive agreement as a source of revenue may be in 451 addition to, or in lieu of, service payments. 452 9. The duties of the private entity, including the terms 453 and conditions that the responsible public entity determines 454 serve the public purpose of this section. 455 (b) The comprehensive agreement may include: 456 1. An agreement by the responsible public entity to make 457 grants or loans to the private entity from amounts received from 458 the federal, state, or local government or an agency or 459 instrumentality thereof. 460 2. A provision under which each entity agrees to provide 461 notice of default and cure rights for the benefit of the other 462 entity, including, but not limited to, a provision regarding 463 unavoidable delays. 464 3. A provision that terminates the authority and duties of 465 the private entity under this section and dedicates the 466 qualifying project to the responsible public entity or, if the 467 qualifying project was initially dedicated by an affected local 468 jurisdiction, to the affected local jurisdiction for public use. 469 (10) FEES.—An agreement entered into pursuant to this 470 section may authorize the private entity to impose fees to 471 members of the public for the use of the facility. The following 472 provisions apply to the agreement: 473 (a) The responsible public entity may develop new 474 facilities or increase capacity in existing facilities through 475 agreements with public-private partnerships. 476 (b) The public-private partnership agreement must ensure 477 that the facility is properly operated, maintained, or improved 478 in accordance with standards set forth in the comprehensive 479 agreement. 480 (c) The responsible public entity may lease existing fee 481 for-use facilities through a public-private partnership 482 agreement. 483 (d) Any revenues must be regulated by the responsible 484 public entity pursuant to the comprehensive agreement. 485 (e) A negotiated portion of revenues from fee-generating 486 uses must be returned to the public entity over the life of the 487 agreement. 488 (11) FINANCING.— 489 (a) A private entity may enter into a private-source 490 financing agreement between financing sources and the private 491 entity. A financing agreement and any liens on the property or 492 facility must be paid in full at the applicable closing that 493 transfers ownership or operation of the facility to the 494 responsible public entity at the conclusion of the term of the 495 comprehensive agreement. 496 (b) The responsible public entity may lend funds to private 497 entities that construct projects containing facilities that are 498 approved under this section. 499 (c) The responsible public entity may use innovative 500 finance techniques associated with a public-private partnership 501 under this section, including, but not limited to, federal loans 502 as provided in Titles 23 and 49 C.F.R., commercial bank loans, 503 and hedges against inflation from commercial banks or other 504 private sources. In addition, the responsible public entity may 505 provide its own capital or operating budget to support a 506 qualifying project. The budget may be from any legally 507 permissible funding sources of the responsible public entity, 508 including the proceeds of debt issuances. A responsible public 509 entity may use the model financing agreement provided in s. 510 489.145(6) for its financing of a facility owned by a 511 responsible public entity. A financing agreement may not require 512 the responsible public entity to indemnify the financing source, 513 subject the responsible public entity’s facility to liens in 514 violation of s. 11.066(5), or secure financing by the 515 responsible public entity with a pledge of security interest, 516 and any such provision is void. 517 (d) A responsible public entity shall appropriate on a 518 priority basis as required by the comprehensive agreement a 519 contractual payment obligation, annual or otherwise, from the 520 enterprise or other government fund from which the qualifying 521 projects will be funded. This required payment obligation must 522 be appropriated before other noncontractual obligations payable 523 from the same enterprise or other government fund. 524 (12) POWERS AND DUTIES OF THE PRIVATE ENTITY.— 525 (a) The private entity shall: 526 1. Develop or operate the qualifying project in a manner 527 that is acceptable to the responsible public entity in 528 accordance with the provisions of the comprehensive agreement. 529 2. Maintain, or provide by contract for the maintenance or 530 improvement of, the qualifying project if required by the 531 comprehensive agreement. 532 3. Cooperate with the responsible public entity in making 533 best efforts to establish interconnection between the qualifying 534 project and any other facility or infrastructure as requested by 535 the responsible public entity in accordance with the provisions 536 of the comprehensive agreement. 537 4. Comply with the comprehensive agreement and any lease or 538 service contract. 539 (b) Each private facility that is constructed pursuant to 540 this section must comply with the requirements of federal, 541 state, and local laws; state, regional, and local comprehensive 542 plans; the responsible public entity’s rules, procedures, and 543 standards for facilities; and such other conditions that the 544 responsible public entity determines to be in the public’s best 545 interest and that are included in the comprehensive agreement. 546 (c) The responsible public entity may provide services to 547 the private entity. An agreement for maintenance and other 548 services entered into pursuant to this section must provide for 549 full reimbursement for services rendered for qualifying 550 projects. 551 (d) A private entity of a qualifying project may provide 552 additional services for the qualifying project to the public or 553 to other private entities if the provision of additional 554 services does not impair the private entity’s ability to meet 555 its commitments to the responsible public entity pursuant to the 556 comprehensive agreement. 557 (13) EXPIRATION OR TERMINATION OF AGREEMENTS.—Upon the 558 expiration or termination of a comprehensive agreement, the 559 responsible public entity may use revenues from the qualifying 560 project to pay current operation and maintenance costs of the 561 qualifying project. If the private entity materially defaults 562 under the comprehensive agreement, the compensation that is 563 otherwise due to the private entity is payable to satisfy all 564 financial obligations to investors and lenders on the qualifying 565 project in the same way that is provided in the comprehensive 566 agreement or any other agreement involving the qualifying 567 project, if the costs of operating and maintaining the 568 qualifying project are paid in the normal course. Revenues in 569 excess of the costs for operation and maintenance costs may be 570 paid to the investors and lenders to satisfy payment obligations 571 under their respective agreements. A responsible public entity 572 may terminate with cause and without prejudice a comprehensive 573 agreement and may exercise any other rights or remedies that may 574 be available to it in accordance with the provisions of the 575 comprehensive agreement. The full faith and credit of the 576 responsible public entity may not be pledged to secure the 577 financing of the private entity. The assumption of the 578 development or operation of the qualifying project does not 579 obligate the responsible public entity to pay any obligation of 580 the private entity from sources other than revenues from the 581 qualifying project unless stated otherwise in the comprehensive 582 agreement. 583 (14) SOVEREIGN IMMUNITY.—This section does not waive the 584 sovereign immunity of a responsible public entity, an affected 585 local jurisdiction, or an officer or employee thereof with 586 respect to participation in, or approval of, any part of a 587 qualifying project or its operation, including, but not limited 588 to, interconnection of the qualifying project with any other 589 infrastructure or project. A county or municipality in which a 590 qualifying project is located possesses sovereign immunity with 591 respect to the project, including, but not limited to, its 592 design, construction, and operation. 593 (15) CONSTRUCTION.—This section shall be liberally 594 construed to effectuate the purposes of this section. 595 (a) This section does not limit a state agency or political 596 subdivision of the state in the acquisition, design, or 597 construction of a public project pursuant to other statutory 598 authority. 599 (b) Except as otherwise provided in this section, this 600 section does not amend existing laws by granting additional 601 powers to, or further restricting, a local governmental entity 602 from regulating and entering into cooperative arrangements with 603 the private sector for the planning, construction, or operation 604 of a facility. 605 (c) This section does not waive any requirement of s. 606 287.055. 607 Section 2. Section 336.71, Florida Statutes, is created to 608 read: 609 336.71 Public-private transportation facilities.— 610 (1) A county may receive or solicit proposals and enter 611 into agreements with private entities or consortia thereof to 612 build, operate, own, or finance highways, bridges, multimodal 613 transportation systems, transit-oriented development nodes, 614 transit stations, and related transportation facilities located 615 solely within the county, including municipalities therein. 616 Before approval, the county must determine that a proposed 617 project: 618 (a) Is in the best interest of the public. 619 (b) Would not require county funds to be used unless the 620 project is on the county road system or would provide increased 621 mobility on the county road system. 622 (c) Would have adequate safeguards to ensure that 623 additional costs or unreasonable service disruptions are not 624 realized by the traveling public and citizens of the state in 625 the event of default or cancellation of the agreement by the 626 county. 627 (d) Would be owned by the county upon completion or 628 termination of the agreement. 629 (2) The county shall ensure that all reasonable costs to 630 the county related to transportation facilities that are not 631 part of the county road system are borne by the private entity 632 that develops or operates the facilities. The county shall also 633 ensure that all reasonable costs to the county and substantially 634 affected local governments and utilities related to the private 635 transportation facility are borne by the private entity for 636 transportation facilities that are owned by private entities. 637 For projects on the county road system or that provide increased 638 mobility on the county road system, the county may use county 639 resources to participate in funding and financing the project 640 pursuant to the county’s financial policies and ordinances. 641 (3) The county may request proposals and receive 642 unsolicited proposals for public-private transportation 643 facilities. Upon a determination by the governing body of the 644 county to issue a request for proposals, the governing body of 645 the county must publish a notice of the request for proposals in 646 a newspaper of general circulation in the county at least once a 647 week for 2 weeks. Upon receipt of an unsolicited proposal, the 648 governing body of the county must publish a notice in a 649 newspaper of general circulation in the county at least once a 650 week for 2 weeks stating that it has received the proposal and 651 will accept, for 60 days after the initial date of publication, 652 other proposals for the same project purpose. A copy of the 653 notice must be mailed to the governing body of each local 654 government in the affected area. After the public notification 655 period has expired, the governing body of the county shall rank 656 the proposals in order of preference. In ranking the proposals, 657 the governing body of the county shall consider professional 658 qualifications, general business terms, innovative engineering 659 or cost-reduction terms, finance plans, and the need for county 660 funds to complete the project. If the governing body of the 661 county is not satisfied with the results of the negotiations, it 662 may terminate negotiations with the proposer. If negotiations 663 are unsuccessful, the governing body of the county may negotiate 664 with the private entity that has the next highest ranked 665 proposal, using the same procedure. If only one proposal is 666 received, the governing body of the county may negotiate in good 667 faith and may, if not satisfied with the results, terminate 668 negotiations with the proposer. The governing body of the county 669 may, at its discretion, reject all proposals at any point in the 670 process up to completion of a contract with the proposer. Any 671 private entity submitting an unsolicited proposal shall submit 672 with the proposal a fee of $25,000 to be used by the governing 673 body of the county for the costs associated with the review and 674 analysis of the proposal, and such entity shall remain liable 675 for any additional costs and expenses incurred by the governing 676 body of the county for such review and analysis. 677 (4) Agreements entered into pursuant to this section may 678 authorize the county or the private project owner, lessee, or 679 operator to impose, collect, and enforce tolls or fares for the 680 use of the transportation facility. However, the amount and use 681 of toll or fare revenue shall be regulated by the county to 682 avoid unreasonable costs to users of the facility. 683 (5) Each public-private transportation facility constructed 684 pursuant to this section shall comply with all requirements of 685 federal, state, and local laws; state, regional, and local 686 comprehensive plans; the county’s rules, policies, procedures, 687 and standards for transportation facilities; and any other 688 conditions that the county determines to be in the best interest 689 of the public. 690 (6) The governing body of the county may exercise any of 691 its powers, including eminent domain, to facilitate the 692 development and construction of transportation projects pursuant 693 to this section. The governing body of the county may pay all or 694 part of the cost of operating and maintaining the facility and 695 may provide services to the private entity, for which services 696 it shall receive full or partial reimbursement. 697 (7) Except as otherwise provided in this section, this 698 section is not intended to amend existing law by granting 699 additional powers to or imposing further restrictions on local 700 governmental entities with regard to regulating and entering 701 into cooperative arrangements with the private sector for the 702 planning, construction, and operation of transportation 703 facilities. 704 (8) Public-private partnership agreements under this 705 section shall be limited to a term not exceeding 75 years. 706 (9) This section does not authorize a county or counties to 707 enter into agreements with private entities or consortia thereof 708 to build, operate, own, or finance a transportation facility 709 that would extend beyond the geographical boundaries of a single 710 county. 711 Section 3. This act shall take effect July 1, 2013. 712 713 ================= T I T L E A M E N D M E N T ================ 714 And the title is amended as follows: 715 Delete everything before the enacting clause 716 and insert: 717 A bill to be entitled 718 An act relating to public-private partnerships; 719 creating s. 287.05712, F.S.; providing definitions; 720 providing legislative findings and intent relating to 721 the construction or improvement by private entities of 722 facilities used predominantly for a public purpose; 723 creating a task force to establish specified 724 guidelines; providing procurement procedures; 725 providing requirements for project approval; providing 726 project qualifications and process; providing for 727 notice to affected local jurisdictions; providing for 728 interim and comprehensive agreements between a public 729 and a private entity; providing for use fees; 730 providing for financing sources for certain projects 731 by a private entity; providing powers and duties of 732 private entities; providing for expiration or 733 termination of agreements; providing for the 734 applicability of sovereign immunity for public 735 entities with respect to qualified projects; providing 736 for construction of the act; creating s. 336.71, F.S.; 737 authorizing counties to enter into public-private 738 partnership agreements for construction, operation, 739 ownership, and financing of transportation facilities; 740 providing requirements and limitations for such 741 agreements; providing procurement procedures; 742 requiring a fee for certain proposals; providing an 743 effective date.