Florida Senate - 2013                        CS for CS for SB 84
       By the Committees on Governmental Oversight and Accountability;
       and Community Affairs; and Senator Diaz de la Portilla
       585-02420-13                                            201384c2
    1                        A bill to be entitled                      
    2         An act relating to public-private partnerships;
    3         creating s. 287.05712, F.S.; providing definitions;
    4         providing legislative findings and intent relating to
    5         the construction or improvement by private entities of
    6         facilities used predominantly for a public purpose;
    7         creating a task force to establish specified
    8         guidelines; providing procurement procedures;
    9         providing requirements for project approval; providing
   10         project qualifications and process; providing for
   11         notice to affected local jurisdictions; providing for
   12         interim and comprehensive agreements between a public
   13         and a private entity; providing for use fees;
   14         providing for financing sources for certain projects
   15         by a private entity; providing powers and duties of
   16         private entities; providing for expiration or
   17         termination of agreements; providing for the
   18         applicability of sovereign immunity for public
   19         entities with respect to qualified projects; providing
   20         for construction of the act; creating s. 336.71, F.S.;
   21         authorizing counties to enter into public-private
   22         partnership agreements for construction, operation,
   23         ownership, and financing of transportation facilities;
   24         providing requirements and limitations for such
   25         agreements; providing procurement procedures;
   26         requiring a fee for certain proposals; providing an
   27         effective date.
   29  Be It Enacted by the Legislature of the State of Florida:
   31         Section 1. Section 287.05712, Florida Statutes, is created
   32  to read:
   33         287.05712 Public-private partnerships.—
   34         (1) DEFINITIONS.—As used in this section, the term:
   35         (a) “Affected local jurisdiction” means a county,
   36  municipality, or special district in which all or a portion of a
   37  qualifying project is located.
   38         (b) “Develop” means to plan, design, finance, lease,
   39  acquire, install, construct, or expand.
   40         (c) “Fees” means charges imposed by the private entity of a
   41  qualifying project for use of all or a portion of such
   42  qualifying project pursuant to a comprehensive agreement.
   43         (d) “Lease payment” means any form of payment, including a
   44  land lease, by a public entity to the private entity of a
   45  qualifying project for the use of the project.
   46         (e) “Material default” means a nonperformance of its duties
   47  by the private entity of a qualifying project which jeopardizes
   48  adequate service to the public from the project.
   49         (f) “Operate” means to finance, maintain, improve, equip,
   50  modify, or repair.
   51         (g) “Private entity” means any natural person, corporation,
   52  general partnership, limited liability company, limited
   53  partnership, joint venture, business trust, public-benefit
   54  corporation, nonprofit entity, or other private business entity.
   55         (h) “Proposal” means a plan for a qualifying project with
   56  detail beyond a conceptual level for which terms such as fixing
   57  costs, payment schedules, financing, deliverables, and project
   58  schedule are defined.
   59         (i) “Qualifying project” means:
   60         1. A facility or project that serves a public purpose,
   61  including, but not limited to, any ferry or mass transit
   62  facility, vehicle parking facility, airport or seaport facility,
   63  rail facility or project, fuel supply facility, oil or gas
   64  pipeline, medical or nursing care facility, recreational
   65  facility, sporting or cultural facility, or educational facility
   66  or other building or facility that is used or will be used by a
   67  public educational institution, or any other public facility or
   68  infrastructure that is used or will be used by the public at
   69  large or in support of an accepted public purpose or activity;
   70         2. An improvement, including equipment, of a building that
   71  will be principally used by a public entity or the public at
   72  large or that supports a service delivery system in the public
   73  sector; or
   74         3. A water, wastewater, or surface water management
   75  facility or other related infrastructure.
   76         (j) “Responsible public entity” means a county,
   77  municipality, school board, or university, or any other
   78  political subdivision of the state; a public body corporate and
   79  politic; or a regional entity that serves a public purpose and
   80  is authorized to develop or operate a qualifying project.
   81         (k) “Revenues” means the income, earnings, user fees, lease
   82  payments, or other service payments relating to the development
   83  or operation of a qualifying project, including, but not limited
   84  to, money received as grants or otherwise from the Federal
   85  Government, a public entity, or an agency or instrumentality
   86  thereof in aid of the qualifying project.
   87         (l) “Service contract” means a contract between a public
   88  entity and the private entity which defines the terms of the
   89  services to be provided with respect to a qualifying project.
   90         (2) LEGISLATIVE FINDINGS AND INTENT.—The Legislature finds
   91  that there is a public need for the construction or upgrade of
   92  facilities that are used predominantly for public purposes and
   93  that it is in the public’s interest to provide for the
   94  construction or upgrade of such facilities.
   95         (a) The Legislature also finds that:
   96         1. There is a public need for timely and cost-effective
   97  acquisition, design, construction, improvement, renovation,
   98  expansion, equipping, maintenance, operation, implementation, or
   99  installation of projects serving a public purpose, including
  100  educational facilities, transportation facilities, water or
  101  wastewater management facilities and infrastructure, technology
  102  infrastructure, roads, highways, bridges, and other public
  103  infrastructure and government facilities within the state which
  104  serve a public need and purpose, and that such public need may
  105  not be wholly satisfied by existing procurement methods.
  106         2. There are inadequate resources to develop new
  107  educational facilities, transportation facilities, water or
  108  wastewater management facilities and infrastructure, technology
  109  infrastructure, roads, highways, bridges, and other public
  110  infrastructure and government facilities for the benefit of
  111  residents of this state, and that a public-private partnership
  112  has demonstrated that it can meet the needs by improving the
  113  schedule for delivery, lowering the cost, and providing other
  114  benefits to the public.
  115         3. There may be state and federal tax incentives that
  116  promote partnerships between public and private entities to
  117  develop and operate qualifying projects.
  118         4. A procurement under this section serves the public
  119  purpose of this section if such procurement facilitates the
  120  timely development or operation of a qualifying project.
  121         (b) It is the intent of the Legislature to encourage
  122  investment in the state by private entities; to facilitate
  123  various bond financing mechanisms, private capital, and other
  124  funding sources for the development and operation of qualifying
  125  projects, including expansion and acceleration of such financing
  126  to meet the public need; and to provide the greatest possible
  127  flexibility to public and private entities contracting for the
  128  provision of public services.
  130         (a) The Partnership for Public Facilities and
  131  Infrastructure Act Guidelines Task Force is created to establish
  132  guidelines for public entities on the types of factors public
  133  entities should review and consider when processing requests for
  134  public-private partnership projects pursuant to this section,
  135  including consistent requirements for private entities seeking
  136  to participate in the construction or development of a
  137  qualifying project throughout the state.
  138         (b) The task force shall consist of nine members, as
  139  follows:
  140         1. One member of the Senate, appointed by the President of
  141  the Senate.
  142         2. One member of the House of Representatives, appointed by
  143  the Speaker of the House of Representatives.
  144         3. The Secretary of Management Services or his or her
  145  designee.
  146         4. Six members appointed by the Governor, as follows:
  147         a. One county government official.
  148         b. One municipal government official.
  149         c. One district school board member.
  150         d. Three representatives of the business community.
  151         (c) Task force members shall serve for a term of 2 years
  152  each and shall elect a chair and a vice chair. The task force
  153  shall meet as necessary. Administrative and technical support
  154  shall be provided by the department. Task force members shall
  155  serve without compensation, but are entitled to reimbursement
  156  for per diem and travel expenses pursuant to s. 112.061. The
  157  task force shall terminate on July 1, 2015.
  158         (d) The task force shall provide guidelines to public
  159  entities no later than July 1, 2014. The guidelines shall
  160  include:
  161         1. Opportunities for competition through public notice and
  162  the availability of representatives of the responsible public
  163  entity to meet with private entities considering a proposal.
  164         2. Reasonable criteria for choosing among competing
  165  proposals.
  166         3. Suggested timelines for selecting proposals and
  167  negotiating an interim or comprehensive agreement.
  168         4. Authorization for accelerated selection and review and
  169  documentation timelines for proposals involving a qualifying
  170  project that the responsible public entity deems a priority.
  171         5. Procedures for financial review and analysis which, at a
  172  minimum, include a cost-benefit analysis, an assessment of
  173  opportunity cost, and consideration of the results of all
  174  studies and analyses related to the proposed qualifying project.
  175         6. Consideration of the nonfinancial benefits of a proposed
  176  qualifying project.
  177         7. A mechanism for the appropriating body to review a
  178  proposed comprehensive agreement before execution.
  179         8. Analysis of the adequacy of the information released
  180  when seeking competing proposals, and providing for the
  181  enhancement of that information, if deemed necessary, to
  182  encourage competition, as well as establishing standards to
  183  maintain the confidentiality of financial and proprietary terms
  184  of an unsolicited proposal, which shall be disclosed only in
  185  accordance with the bidding procedures of competing proposals.
  186         9. Authority for the responsible public entity to engage
  187  the services of qualified professionals, which may include a
  188  Florida-registered professional or a certified public
  189  accountant, not otherwise employed by the responsible public
  190  entity, to provide an independent analysis regarding the
  191  specifics, advantages, disadvantages, and long-term and short
  192  term costs of a request by a private entity for approval of a
  193  qualifying project, unless the governing body of the public
  194  entity determines that such analysis should be performed by
  195  employees of the public entity. Professional services as defined
  196  in s. 287.055 must be engaged pursuant to s. 287.055.
  197         (e) The establishment of guidelines pursuant to this
  198  section by the task force or the adoption of such guidelines by
  199  a public entity is not required for the public entity to request
  200  or receive proposals for a qualifying project or to enter into a
  201  comprehensive agreement for a qualifying project. A public
  202  entity may adopt guidelines before the establishment of
  203  guidelines by the task force, which may remain in effect as long
  204  as such guidelines are not inconsistent with the guidelines
  205  established by the task force. A guideline that is inconsistent
  206  with the guidelines of the task force must be amended as
  207  necessary to maintain consistency with the task force
  208  guidelines.
  209         (4) PROCUREMENT PROCEDURES.—A responsible public entity may
  210  receive unsolicited proposals or may solicit proposals for
  211  qualifying projects and may thereafter enter into an agreement
  212  with a private entity, or a consortium of private entities, for
  213  the building, upgrading, operating, ownership, or financing of
  214  facilities.
  215         (a) The responsible public entity may establish a
  216  reasonable application fee for the submission of an unsolicited
  217  proposal under this section. The fee must be sufficient to pay
  218  the costs of evaluating the proposal. The responsible public
  219  entity may engage the services of a private consultant to assist
  220  in the evaluation.
  221         (b) The responsible public entity may request a proposal
  222  from private entities for a public-private project or, if the
  223  public entity receives an unsolicited proposal, the public
  224  entity shall publish notice in the Florida Administrative
  225  Register and a newspaper of general circulation at least once a
  226  week for 2 weeks stating that the public entity has received a
  227  proposal and will accept other proposals for the same project.
  228  The timeframe within which the public entity may accept other
  229  proposals shall be determined by the public entity on a project
  230  by-project basis based upon the complexity of the project and
  231  the public benefit to be gained by allowing a longer or shorter
  232  period of time within which other proposals may be received;
  233  however, the timeframe for allowing other proposals must be at
  234  least 21 days, but no more than 120 days, after the initial date
  235  of publication. A copy of the notice must be mailed to each
  236  local government in the affected area. The scope of the proposal
  237  may be publicized for the purpose of soliciting competing
  238  proposals; however, the financial terms of the proposal may not
  239  be disclosed until the terms of all competing bids are
  240  simultaneously disclosed in accordance with the applicable law
  241  governing procurement procedures for the qualifying project.
  242         (c) A responsible public entity that is a school board may
  243  enter into a comprehensive agreement only with the approval of
  244  the local governing body.
  245         (d) Before approval, the responsible public entity must
  246  determine that the proposed project:
  247         1. Is in the public’s best interest.
  248         2. Is for a facility that is owned by the responsible
  249  public entity or for a facility for which ownership will be
  250  conveyed to the responsible public entity.
  251         3. Has adequate safeguards in place to ensure that
  252  additional costs or service disruptions are not imposed on the
  253  public in the event of material default or cancellation of the
  254  agreement by the responsible public entity.
  255         4. Has adequate safeguards in place to ensure that the
  256  responsible public entity or the private entity has the
  257  opportunity to add capacity to the proposed project or other
  258  facilities serving similar predominantly public purposes.
  259         5. Will be owned by the responsible public entity upon
  260  completion or termination of the agreement and upon payment of
  261  the amounts financed.
  262         (e) Before signing a comprehensive agreement, the
  263  responsible public entity must consider a reasonable finance
  264  plan that is consistent with subsection (11), the project cost,
  265  revenues by source, available financing, major assumptions,
  266  internal rate of return on private investments, if governmental
  267  funds are assumed in order to deliver a cost-feasible project,
  268  and a total cash-flow analysis beginning with the implementation
  269  of the project and extending for the term of the agreement.
  270         (f) In considering an unsolicited proposal, the responsible
  271  public entity may require from the private entity a technical
  272  study prepared by a nationally recognized expert with experience
  273  in preparing analysis for bond rating agencies. In evaluating
  274  the technical study, the responsible public entity may rely upon
  275  internal staff reports prepared by personnel familiar with the
  276  operation of similar facilities or the advice of external
  277  advisors or consultants who have relevant experience.
  278         (5) PROJECT APPROVAL REQUIREMENTS.—An unsolicited proposal
  279  from a private entity for approval of a qualifying project must
  280  be accompanied by the following material and information, unless
  281  waived by the responsible public entity:
  282         (a) A description of the qualifying project, including the
  283  conceptual design of the facilities or a conceptual plan for the
  284  provision of services, and a schedule for the initiation and
  285  completion of the qualifying project.
  286         (b) A description of the method by which the private entity
  287  proposes to secure the necessary property interests that are
  288  required for the qualifying project.
  289         (c) A description of the private entity’s general plans for
  290  financing the qualifying project, including the sources of the
  291  private entity’s funds and the identity of any dedicated revenue
  292  source or proposed debt or equity investment on behalf of the
  293  private entity.
  294         (d) The name and address of a person who may be contacted
  295  for additional information concerning the proposal.
  296         (e) The proposed user fees, lease payments, or other
  297  service payments over the term of a comprehensive agreement, and
  298  the methodology for and circumstances that would allow changes
  299  to the user fees, lease payments, and other service payments
  300  over time.
  301         (f) Additional material or information that the responsible
  302  public entity reasonably requests.
  304         (a) The private entity must meet the minimum standards
  305  contained in the responsible public entity’s guidelines for
  306  qualifying professional services and contracts for traditional
  307  procurement projects.
  308         (b) The responsible public entity must:
  309         1. Ensure that provision is made for the private entity’s
  310  performance and payment of subcontractors, including, but not
  311  limited to, surety bonds, letters of credit, parent company
  312  guarantees, and lender and equity partner guarantees. For the
  313  components of the qualifying project which involve construction
  314  performance and payment, bonds are required and are subject to
  315  the recordation, notice, suit limitation, and other requirements
  316  of s. 255.05.
  317         2. Ensure the most efficient pricing of the security
  318  package that provides for the performance and payment of
  319  subcontractors.
  320         3. Ensure that provision is made for the transfer of the
  321  private entity’s obligations if the comprehensive agreement is
  322  terminated or a material default occurs.
  323         (c) After the public notification period has expired in the
  324  case of an unsolicited proposal, the responsible public entity
  325  shall rank the proposals received in order of preference. In
  326  ranking the proposals, the responsible public entity may
  327  consider factors that include, but are not limited to,
  328  professional qualifications, general business terms, innovative
  329  design techniques or cost-reduction terms, and finance plans. If
  330  the responsible public entity is not satisfied with the results
  331  of the negotiations, the responsible public entity may terminate
  332  negotiations with the proposer and negotiate with the second
  333  ranked or subsequent-ranked firms in the order consistent with
  334  this procedure. If only one proposal is received, the
  335  responsible public entity may negotiate in good faith, and if
  336  the public entity is not satisfied with the results of the
  337  negotiations, the public entity may terminate negotiations with
  338  the proposer. Notwithstanding this paragraph, the responsible
  339  public entity may reject all proposals at any point in the
  340  process until a contract with the proposer is executed.
  341         (d) The responsible public entity shall perform an
  342  independent analysis of the proposed public-private partnership
  343  which demonstrates the cost-effectiveness and overall public
  344  benefit before the procurement process is initiated or before
  345  the contract is awarded.
  346         (e) The responsible public entity may approve the
  347  development or operation of an educational facility, a
  348  transportation facility, a water or wastewater management
  349  facility or related infrastructure, a technology infrastructure
  350  or other public infrastructure, or a government facility needed
  351  by the responsible public entity as a qualifying project, or the
  352  design or equipping of a qualifying project that is developed or
  353  operated, if:
  354         1. There is a public need for or benefit derived from a
  355  project of the type that the private entity proposes as the
  356  qualifying project.
  357         2. The estimated cost of the qualifying project is
  358  reasonable in relation to similar facilities.
  359         3. The private entity’s plans will result in the timely
  360  acquisition, design, construction, improvement, renovation,
  361  expansion, equipping, maintenance, or operation of the
  362  qualifying project.
  363         (f) The responsible public entity may charge a reasonable
  364  fee to cover the costs of processing, reviewing, and evaluating
  365  the request, including, but not limited to, reasonable attorney
  366  fees and fees for financial and technical advisors or
  367  consultants and for other necessary advisors or consultants.
  368         (g) Upon approval of a qualifying project, the responsible
  369  public entity shall establish a date for the commencement of
  370  activities related to the qualifying project. The responsible
  371  public entity may extend the commencement date.
  372         (h) Approval of a qualifying project by the responsible
  373  public entity is subject to entering into a comprehensive
  374  agreement with the private entity.
  376         (a) The responsible public entity must notify each affected
  377  local jurisdiction by furnishing a copy of the proposal to each
  378  affected local jurisdiction when considering a proposal for a
  379  qualifying project.
  380         (b) Each affected local jurisdiction that is not a
  381  responsible public entity for the respective qualifying project
  382  may, within 60 days after receiving the notice, submit in
  383  writing any comments to the responsible public entity and
  384  indicate whether the facility is incompatible with the local
  385  comprehensive plan, the local infrastructure development plan,
  386  the capital improvements budget, or other governmental spending
  387  plan. The responsible public entity shall consider the comments
  388  of the affected local jurisdiction before entering into a
  389  comprehensive agreement with a private entity. If an affected
  390  local jurisdiction fails to respond to the responsible public
  391  entity within the time provided in this paragraph, the
  392  nonresponse is deemed an acknowledgement by the affected local
  393  jurisdiction that the qualifying project is compatible with the
  394  local comprehensive plan, the local infrastructure development
  395  plan, the capital improvements budget, or other governmental
  396  spending plan.
  397         (8) INTERIM AGREEMENT.—Before or in connection with the
  398  negotiation of a comprehensive agreement, the public entity may
  399  enter into an interim agreement with the private entity
  400  proposing the development or operation of the qualifying
  401  project. An interim agreement does not obligate the responsible
  402  public entity to enter into a comprehensive agreement. The
  403  interim agreement is discretionary with the parties and is not
  404  required on a qualifying project for which the parties may
  405  proceed directly to a comprehensive agreement without the need
  406  for an interim agreement. An interim agreement must be limited
  407  to provisions that:
  408         (a) Authorize the private entity to commence activities for
  409  which it may be compensated related to the proposed qualifying
  410  project, including, but not limited to, project planning and
  411  development, design, environmental analysis and mitigation,
  412  survey, other activities concerning any part of the proposed
  413  qualifying project, and ascertaining the availability of
  414  financing for the proposed facility or facilities.
  415         (b) Establish the process and timing of the negotiation of
  416  the comprehensive agreement.
  417         (c) Contain such other provisions related to an aspect of
  418  the development or operation of a qualifying project that the
  419  responsible public entity and the private entity deem
  420  appropriate.
  422         (a) Before developing or operating the qualifying project,
  423  the private entity must enter into a comprehensive agreement
  424  with the responsible public entity. The comprehensive agreement
  425  must provide for:
  426         1. The delivery of performance and payment bonds, letters
  427  of credit, or other security acceptable to the responsible
  428  public entity in connection with the development or operation of
  429  the qualifying project in the form and amount satisfactory to
  430  the responsible public entity. For the components of the
  431  qualifying project which involve construction, the form and
  432  amount of the bonds must comply with s. 255.05.
  433         2. The review of the plans and specifications for the
  434  qualifying project by the responsible public entity and, if the
  435  plans and specifications conform to standards acceptable to the
  436  responsible public entity, the approval of the responsible
  437  public entity. This subparagraph does not require the private
  438  entity to complete the design of the qualifying project before
  439  the execution of the comprehensive agreement.
  440         3. The inspection of the qualifying project by the
  441  responsible public entity to ensure that the private entity’s
  442  activities are acceptable to the public entity in accordance
  443  with the comprehensive agreement.
  444         4. The maintenance of a policy of public liability
  445  insurance, a copy of which must be filed with the responsible
  446  public entity and accompanied by proofs of coverage, or self
  447  insurance, each in the form and amount satisfactory to the
  448  responsible public entity and reasonably sufficient to ensure
  449  coverage of tort liability to the public and employees and to
  450  enable the continued operation of the qualifying project.
  451         5. The monitoring by the responsible public entity of the
  452  maintenance practices to be performed by the private entity to
  453  ensure that the qualifying project is properly maintained.
  454         6. The periodic filing by the private entity of the
  455  appropriate financial statements that pertain to the qualifying
  456  project.
  457         7. The procedures that govern the rights and
  458  responsibilities of the responsible public entity and the
  459  private entity in the course of the construction and operation
  460  of the qualifying project and in the event of the termination of
  461  the comprehensive agreement or a material default by the private
  462  entity. The procedures must include conditions that govern the
  463  assumption of the duties and responsibilities of the private
  464  entity by an entity that funded, in whole or part, the
  465  qualifying project or by the responsible public entity, and must
  466  provide for the transfer or purchase of property or other
  467  interests of the private entity by the responsible public
  468  entity.
  469         8. In negotiating user fees, the fees must be the same for
  470  persons using the facility under like conditions and must not
  471  materially discourage use of the qualifying project. The
  472  execution of the comprehensive agreement or a subsequent
  473  amendment is conclusive evidence that the fees, lease payments,
  474  or service payments provided for in the comprehensive agreement
  475  comply with this section. Fees or lease payments established in
  476  the comprehensive agreement as a source of revenue may be in
  477  addition to, or in lieu of, service payments.
  478         9. The duties of the private entity, including the terms
  479  and conditions that the responsible public entity determines
  480  serve the public purpose of this section.
  481         (b) The comprehensive agreement may include:
  482         1. An agreement by the responsible public entity to make
  483  grants or loans to the private entity from amounts received from
  484  the federal, state, or local government or an agency or
  485  instrumentality thereof.
  486         2. A provision under which each entity agrees to provide
  487  notice of default and cure rights for the benefit of the other
  488  entity, including, but not limited to, a provision regarding
  489  unavoidable delays.
  490         3. A provision that terminates the authority and duties of
  491  the private entity under this section and dedicates the
  492  qualifying project to the responsible public entity or, if the
  493  qualifying project was initially dedicated by an affected local
  494  jurisdiction, to the affected local jurisdiction for public use.
  495         (10) FEES.—An agreement entered into pursuant to this
  496  section may authorize the private entity to impose fees to
  497  members of the public for the use of the facility. The following
  498  provisions apply to the agreement:
  499         (a) The responsible public entity may develop new
  500  facilities or increase capacity in existing facilities through
  501  agreements with public-private partnerships.
  502         (b) The public-private partnership agreement must ensure
  503  that the facility is properly operated, maintained, or improved
  504  in accordance with standards set forth in the comprehensive
  505  agreement.
  506         (c) The responsible public entity may lease existing fee
  507  for-use facilities through a public-private partnership
  508  agreement.
  509         (d) Any revenues must be regulated by the responsible
  510  public entity pursuant to the comprehensive agreement.
  511         (e) A negotiated portion of revenues from fee-generating
  512  uses must be returned to the public entity over the life of the
  513  agreement.
  514         (11) FINANCING.—
  515         (a) A private entity may enter into a private-source
  516  financing agreement between financing sources and the private
  517  entity. A financing agreement and any liens on the property or
  518  facility must be paid in full at the applicable closing that
  519  transfers ownership or operation of the facility to the
  520  responsible public entity at the conclusion of the term of the
  521  comprehensive agreement.
  522         (b) The responsible public entity may lend funds to private
  523  entities that construct projects containing facilities that are
  524  approved under this section.
  525         (c) The responsible public entity may use innovative
  526  finance techniques associated with a public-private partnership
  527  under this section, including, but not limited to, federal loans
  528  as provided in Titles 23 and 49 C.F.R., commercial bank loans,
  529  and hedges against inflation from commercial banks or other
  530  private sources. In addition, the responsible public entity may
  531  provide its own capital or operating budget to support a
  532  qualifying project. The budget may be from any legally
  533  permissible funding sources of the responsible public entity,
  534  including the proceeds of debt issuances. A responsible public
  535  entity may use the model financing agreement provided in s.
  536  489.145(6) for its financing of a facility owned by a
  537  responsible public entity. A financing agreement may not require
  538  the responsible public entity to indemnify the financing source,
  539  subject the responsible public entity’s facility to liens in
  540  violation of s. 11.066(5), or secure financing by the
  541  responsible public entity with a pledge of security interest,
  542  and any such provision is void.
  543         (d) A responsible public entity shall appropriate on a
  544  priority basis as required by the comprehensive agreement a
  545  contractual payment obligation, annual or otherwise, from the
  546  enterprise or other government fund from which the qualifying
  547  projects will be funded. This required payment obligation must
  548  be appropriated before other noncontractual obligations payable
  549  from the same enterprise or other government fund.
  551         (a) The private entity shall:
  552         1. Develop or operate the qualifying project in a manner
  553  that is acceptable to the responsible public entity in
  554  accordance with the provisions of the comprehensive agreement.
  555         2. Maintain, or provide by contract for the maintenance or
  556  improvement of, the qualifying project if required by the
  557  comprehensive agreement.
  558         3. Cooperate with the responsible public entity in making
  559  best efforts to establish interconnection between the qualifying
  560  project and any other facility or infrastructure as requested by
  561  the responsible public entity in accordance with the provisions
  562  of the comprehensive agreement.
  563         4. Comply with the comprehensive agreement and any lease or
  564  service contract.
  565         (b) Each private facility that is constructed pursuant to
  566  this section must comply with the requirements of federal,
  567  state, and local laws; state, regional, and local comprehensive
  568  plans; the responsible public entity’s rules, procedures, and
  569  standards for facilities; and such other conditions that the
  570  responsible public entity determines to be in the public’s best
  571  interest and that are included in the comprehensive agreement.
  572         (c) The responsible public entity may provide services to
  573  the private entity. An agreement for maintenance and other
  574  services entered into pursuant to this section must provide for
  575  full reimbursement for services rendered for qualifying
  576  projects.
  577         (d) A private entity of a qualifying project may provide
  578  additional services for the qualifying project to the public or
  579  to other private entities if the provision of additional
  580  services does not impair the private entity’s ability to meet
  581  its commitments to the responsible public entity pursuant to the
  582  comprehensive agreement.
  584  expiration or termination of a comprehensive agreement, the
  585  responsible public entity may use revenues from the qualifying
  586  project to pay current operation and maintenance costs of the
  587  qualifying project. If the private entity materially defaults
  588  under the comprehensive agreement, the compensation that is
  589  otherwise due to the private entity is payable to satisfy all
  590  financial obligations to investors and lenders on the qualifying
  591  project in the same way that is provided in the comprehensive
  592  agreement or any other agreement involving the qualifying
  593  project, if the costs of operating and maintaining the
  594  qualifying project are paid in the normal course. Revenues in
  595  excess of the costs for operation and maintenance costs may be
  596  paid to the investors and lenders to satisfy payment obligations
  597  under their respective agreements. A responsible public entity
  598  may terminate with cause and without prejudice a comprehensive
  599  agreement and may exercise any other rights or remedies that may
  600  be available to it in accordance with the provisions of the
  601  comprehensive agreement. The full faith and credit of the
  602  responsible public entity may not be pledged to secure the
  603  financing of the private entity. The assumption of the
  604  development or operation of the qualifying project does not
  605  obligate the responsible public entity to pay any obligation of
  606  the private entity from sources other than revenues from the
  607  qualifying project unless stated otherwise in the comprehensive
  608  agreement.
  609         (14) SOVEREIGN IMMUNITY.—This section does not waive the
  610  sovereign immunity of a responsible public entity, an affected
  611  local jurisdiction, or an officer or employee thereof with
  612  respect to participation in, or approval of, any part of a
  613  qualifying project or its operation, including, but not limited
  614  to, interconnection of the qualifying project with any other
  615  infrastructure or project. A county or municipality in which a
  616  qualifying project is located possesses sovereign immunity with
  617  respect to the project, including, but not limited to, its
  618  design, construction, and operation.
  619         (15) CONSTRUCTION.—This section shall be liberally
  620  construed to effectuate the purposes of this section.
  621         (a) This section does not limit a state agency or political
  622  subdivision of the state in the acquisition, design, or
  623  construction of a public project pursuant to other statutory
  624  authority.
  625         (b) Except as otherwise provided in this section, this
  626  section does not amend existing laws by granting additional
  627  powers to, or further restricting, a local governmental entity
  628  from regulating and entering into cooperative arrangements with
  629  the private sector for the planning, construction, or operation
  630  of a facility.
  631         (c) This section does not waive any requirement of s.
  632  287.055.
  633         Section 2. Section 336.71, Florida Statutes, is created to
  634  read:
  635         336.71 Public-private transportation facilities.—
  636         (1) A county may receive or solicit proposals and enter
  637  into agreements with private entities or consortia thereof to
  638  build, operate, own, or finance highways, bridges, multimodal
  639  transportation systems, transit-oriented development nodes,
  640  transit stations, and related transportation facilities located
  641  solely within the county, including municipalities therein.
  642  Before approval, the county must determine that a proposed
  643  project:
  644         (a) Is in the best interest of the public.
  645         (b) Would not require county funds to be used unless the
  646  project is on the county road system or would provide increased
  647  mobility on the county road system.
  648         (c) Would have adequate safeguards to ensure that
  649  additional costs or unreasonable service disruptions are not
  650  realized by the traveling public and citizens of the state in
  651  the event of default or cancellation of the agreement by the
  652  county.
  653         (d) Would be owned by the county upon completion or
  654  termination of the agreement.
  655         (2) The county shall ensure that all reasonable costs to
  656  the county related to transportation facilities that are not
  657  part of the county road system are borne by the private entity
  658  that develops or operates the facilities. The county shall also
  659  ensure that all reasonable costs to the county and substantially
  660  affected local governments and utilities related to the private
  661  transportation facility are borne by the private entity for
  662  transportation facilities that are owned by private entities.
  663  For projects on the county road system or that provide increased
  664  mobility on the county road system, the county may use county
  665  resources to participate in funding and financing the project
  666  pursuant to the county’s financial policies and ordinances.
  667         (3) The county may request proposals and receive
  668  unsolicited proposals for public-private transportation
  669  facilities. Upon a determination by the governing body of the
  670  county to issue a request for proposals, the governing body of
  671  the county must publish a notice of the request for proposals in
  672  a newspaper of general circulation in the county at least once a
  673  week for 2 weeks. Upon receipt of an unsolicited proposal, the
  674  governing body of the county must publish a notice in a
  675  newspaper of general circulation in the county at least once a
  676  week for 2 weeks stating that it has received the proposal and
  677  will accept, for 60 days after the initial date of publication,
  678  other proposals for the same project purpose. A copy of the
  679  notice must be mailed to the governing body of each local
  680  government in the affected area. After the public notification
  681  period has expired, the governing body of the county shall rank
  682  the proposals in order of preference. In ranking the proposals,
  683  the governing body of the county shall consider professional
  684  qualifications, general business terms, innovative engineering
  685  or cost-reduction terms, finance plans, and the need for county
  686  funds to complete the project. If the governing body of the
  687  county is not satisfied with the results of the negotiations, it
  688  may terminate negotiations with the proposer. If negotiations
  689  are unsuccessful, the governing body of the county may negotiate
  690  with the private entity that has the next highest ranked
  691  proposal, using the same procedure. If only one proposal is
  692  received, the governing body of the county may negotiate in good
  693  faith and may, if not satisfied with the results, terminate
  694  negotiations with the proposer. The governing body of the county
  695  may, at its discretion, reject all proposals at any point in the
  696  process up to completion of a contract with the proposer. Any
  697  private entity submitting an unsolicited proposal shall submit
  698  with the proposal a fee of $25,000 to be used by the governing
  699  body of the county for the costs associated with the review and
  700  analysis of the proposal, and such entity shall remain liable
  701  for any additional costs and expenses incurred by the governing
  702  body of the county for such review and analysis.
  703         (4) Agreements entered into pursuant to this section may
  704  authorize the county or the private project owner, lessee, or
  705  operator to impose, collect, and enforce tolls or fares for the
  706  use of the transportation facility. However, the amount and use
  707  of toll or fare revenue shall be regulated by the county to
  708  avoid unreasonable costs to users of the facility.
  709         (5) Each public-private transportation facility constructed
  710  pursuant to this section shall comply with all requirements of
  711  federal, state, and local laws; state, regional, and local
  712  comprehensive plans; the county’s rules, policies, procedures,
  713  and standards for transportation facilities; and any other
  714  conditions that the county determines to be in the best interest
  715  of the public.
  716         (6) The governing body of the county may exercise any of
  717  its powers, including eminent domain, to facilitate the
  718  development and construction of transportation projects pursuant
  719  to this section. The governing body of the county may pay all or
  720  part of the cost of operating and maintaining the facility and
  721  may provide services to the private entity, for which services
  722  it shall receive full or partial reimbursement.
  723         (7) Except as otherwise provided in this section, this
  724  section is not intended to amend existing law by granting
  725  additional powers to or imposing further restrictions on local
  726  governmental entities with regard to regulating and entering
  727  into cooperative arrangements with the private sector for the
  728  planning, construction, and operation of transportation
  729  facilities.
  730         (8) Public-private partnership agreements under this
  731  section shall be limited to a term not exceeding 75 years.
  732         (9) This section does not authorize a county or counties to
  733  enter into agreements with private entities or consortia thereof
  734  to build, operate, own, or finance a transportation facility
  735  that would extend beyond the geographical boundaries of a single
  736  county.
  737         Section 3. This act shall take effect July 1, 2013.