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. 28 29 Be It Enacted by the Legislature of the State of Florida: 30 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. 129 (3) PUBLIC-PRIVATE PARTNERSHIP GUIDELINES TASK FORCE.- 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. 303 (6) PROJECT QUALIFICATION AND PROCESS.— 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. 375 (7) NOTICE TO AFFECTED LOCAL JURISDICTIONS.— 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. 421 (9) COMPREHENSIVE AGREEMENT.— 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. 550 (12) POWERS AND DUTIES OF THE PRIVATE ENTITY.— 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. 583 (13) EXPIRATION OR TERMINATION OF AGREEMENTS.—Upon the 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.