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)
    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.
  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.
  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.
  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.
  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.
  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.
  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.
  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.