Florida Senate - 2016 SB 124
By Senator Evers
1 A bill to be entitled
2 An act relating to public procurement practices;
3 transferring, renumbering, and amending s. 287.05712,
4 F.S.; revising definitions; deleting provisions
5 creating the Partnership for Public Facilities and
6 Infrastructure Act Guidelines Task Force; requiring a
7 private entity that submits an unsolicited proposal to
8 pay an initial application fee and additional amounts
9 if the fee does not cover certain costs; specifying
10 payment methods; authorizing a responsible public
11 entity to alter the statutory timeframe for accepting
12 proposals for a qualifying project under certain
13 circumstances; requiring a responsible public entity
14 to include a design criteria package in a
15 solicitation; specifying requirements for the design
16 criteria package; deleting a provision that requires
17 approval of the local governing body before a school
18 board enters into a comprehensive agreement; revising
19 the conditions necessary for a responsible public
20 entity to approve a comprehensive agreement; deleting
21 provisions relating to notice to affected local
22 jurisdictions; requiring that fees imposed by a
23 private entity be applied as set forth in the
24 comprehensive agreement; restricting provisions in
25 financing agreements which could result in a
26 responsible public entity’s loss of fee ownership of
27 real or tangible personal property; deleting a
28 provision that requires a responsible public entity to
29 comply with specific financial obligations; specifying
30 duties of the Department of Management Services;
31 revising provisions relating to construction of the
32 act; amending s. 287.0935, F.S.; increasing the dollar
33 threshold for a contract amount of a project for which
34 a person, the state, or a political subdivision is
35 prohibited from refusing a surety bond issued by a
36 surety company that meets certain requirements;
37 revising the requirements for surety companies with
38 respect to bonds issued for certain publicly funded
39 contracts; providing an effective date.
41 Be It Enacted by the Legislature of the State of Florida:
43 Section 1. Section 287.05712, Florida Statutes, is
44 transferred, renumbered as section 255.065, Florida Statutes,
45 and amended to read:
287.05712 Public-private partnerships.—
47 (1) DEFINITIONS.—As used in this section, the term:
48 (a) “Affected local jurisdiction” means a county,
49 municipality, or special district in which all or a portion of a
50 qualifying project is located.
51 (b) “Develop” means to plan, design, finance, lease,
52 acquire, install, construct, or expand.
53 (c) “Fees” means charges imposed by the private entity of a
54 qualifying project for use of all or a portion of such
55 qualifying project pursuant to a comprehensive agreement.
56 (d) “Lease payment” means any form of payment, including a
57 land lease, by a public entity to the private entity of a
58 qualifying project for the use of the project.
59 (e) “Material default” means a nonperformance of its duties
60 by the private entity of a qualifying project which jeopardizes
61 adequate service to the public from the project.
62 (f) “Operate” means to finance, maintain, improve, equip,
63 modify, or repair.
64 (g) “Private entity” means any natural person, corporation,
65 general partnership, limited liability company, limited
66 partnership, joint venture, business trust, public benefit
67 corporation, nonprofit entity, or other private business entity.
68 (h) “Proposal” means a plan for a qualifying project with
69 detail beyond a conceptual level for which terms such as fixing
70 costs, payment schedules, financing, deliverables, and project
71 schedule are defined.
72 (i) “Qualifying project” means:
73 1. A facility or project that serves a public purpose,
74 including, but not limited to, any ferry or mass transit
75 facility, vehicle parking facility, airport or seaport facility,
76 rail facility or project, fuel supply facility, oil or gas
77 pipeline, medical or nursing care facility, recreational
78 facility, sporting or cultural facility, or educational facility
79 or other building or facility that is used or will be used by a
80 public educational institution, or any other public facility or
81 infrastructure that is used or will be used by the public at
82 large or in support of an accepted public purpose or activity;
83 2. An improvement, including equipment, of a building that
84 will be principally used by a public entity or the public at
85 large or that supports a service delivery system in the public
87 3. A water, wastewater, or surface water management
88 facility or other related infrastructure; or
89 4. Notwithstanding any provision of this section, for
90 projects that involve a facility owned or operated by the
91 governing board of a county, district, or municipal hospital or
92 health care system, or projects that involve a facility owned or
93 operated by a municipal electric utility, only those projects
94 that the governing board designates as qualifying projects
95 pursuant to this section.
96 (j) “Responsible public entity” means a county,
97 municipality, school district, special district, or Florida
98 College System institution board, or any other political
99 subdivision of the state; a public body corporate and politic;
100 or a regional entity that serves a public purpose and is
101 authorized to develop or operate a qualifying project.
102 (k) “Revenues” means the income, earnings, user fees, lease
103 payments, or other service payments relating to the development
104 or operation of a qualifying project, including, but not limited
105 to, money received as grants or otherwise from the Federal
106 Government, a public entity, or an agency or instrumentality
107 thereof in aid of the qualifying project.
108 (l) “Service contract” means a contract between a
109 responsible public entity and the private entity which defines
110 the terms of the services to be provided with respect to a
111 qualifying project.
112 (2) LEGISLATIVE FINDINGS AND INTENT.—The Legislature finds
113 that there is a public need for the construction or upgrade of
114 facilities that are used predominantly for public purposes and
115 that it is in the public’s interest to provide for the
116 construction or upgrade of such facilities.
117 (a) The Legislature also finds that:
118 1. There is a public need for timely and cost-effective
119 acquisition, design, construction, improvement, renovation,
120 expansion, equipping, maintenance, operation, implementation, or
121 installation of projects serving a public purpose, including
122 educational facilities, transportation facilities, water or
123 wastewater management facilities and infrastructure, technology
124 infrastructure, roads, highways, bridges, and other public
125 infrastructure and government facilities within the state which
126 serve a public need and purpose, and that such public need may
127 not be wholly satisfied by existing procurement methods.
128 2. There are inadequate resources to develop new
129 educational facilities, transportation facilities, water or
130 wastewater management facilities and infrastructure, technology
131 infrastructure, roads, highways, bridges, and other public
132 infrastructure and government facilities for the benefit of
133 residents of this state, and that a public-private partnership
134 has demonstrated that it can meet the needs by improving the
135 schedule for delivery, lowering the cost, and providing other
136 benefits to the public.
137 3. There may be state and federal tax incentives that
138 promote partnerships between public and private entities to
139 develop and operate qualifying projects.
140 4. A procurement under this section serves the public
141 purpose of this section if such procurement facilitates the
142 timely development or operation of a qualifying project.
143 (b) It is the intent of the Legislature to encourage
144 investment in the state by private entities; to facilitate
145 various bond financing mechanisms, private capital, and other
146 funding sources for the development and operation of qualifying
147 projects, including expansion and acceleration of such financing
148 to meet the public need; and to provide the greatest possible
149 flexibility to public and private entities contracting for the
150 provision of public services.
151 (3) PUBLIC-PRIVATE PARTNERSHIP GUIDELINES TASK FORCE.—
152 (a) There is created the Partnership for Public Facilities
153 and Infrastructure Act Guidelines Task Force for the purpose of
154 recommending guidelines for the Legislature to consider for
155 purposes of creating a uniform process for establishing public
156 private partnerships, including the types of factors responsible
157 public entities should review and consider when processing
158 requests for public-private partnership projects pursuant to
159 this section.
160 (b) The task force shall be composed of seven members, as
162 1. The Secretary of Management Services or his or her
163 designee, who shall serve as chair of the task force.
164 2. Six members appointed by the Governor, as follows:
165 a. One county government official.
166 b. One municipal government official.
167 c. One district school board member.
168 d. Three representatives of the business community.
169 (c) Task force members must be appointed by July 31, 2013.
170 By August 31, 2013, the task force shall meet to establish
171 procedures for the conduct of its business and to elect a vice
172 chair. The task force shall meet at the call of the chair. A
173 majority of the members of the task force constitutes a quorum,
174 and a quorum is necessary for the purpose of voting on any
175 action or recommendation of the task force. All meetings shall
176 be held in Tallahassee, unless otherwise decided by the task
177 force, and then no more than two such meetings may be held in
178 other locations for the purpose of taking public testimony.
179 Administrative and technical support shall be provided by the
180 department. Task force members shall serve without compensation
181 and are not entitled to reimbursement for per diem or travel
183 (d) In reviewing public-private partnerships and developing
184 recommendations, the task force must consider:
185 1. Opportunities for competition through public notice and
186 the availability of representatives of the responsible public
187 entity to meet with private entities considering a proposal.
188 2. Reasonable criteria for choosing among competing
190 3. Suggested timelines for selecting proposals and
191 negotiating an interim or comprehensive agreement.
192 4. If an accelerated selection and review and documentation
193 timelines should be considered for proposals involving a
194 qualifying project that the responsible public entity deems a
196 5. Procedures for financial review and analysis which, at a
197 minimum, include a cost-benefit analysis, an assessment of
198 opportunity cost, and consideration of the results of all
199 studies and analyses related to the proposed qualifying project.
200 6. The adequacy of the information released when seeking
201 competing proposals and providing for the enhancement of that
202 information, if deemed necessary, to encourage competition.
203 7. Current exemptions from public records and public
204 meetings requirements, if any changes to those exemptions are
205 necessary, or if any new exemptions should be created in order
206 to maintain the confidentiality of financial and proprietary
207 information received as part of an unsolicited proposal.
208 8. Recommendations regarding the authority of the
209 responsible public entity to engage the services of qualified
210 professionals, which may include a Florida-registered
211 professional or a certified public accountant, not otherwise
212 employed by the responsible public entity, to provide an
213 independent analysis regarding the specifics, advantages,
214 disadvantages, and long-term and short-term costs of a request
215 by a private entity for approval of a qualifying project, unless
216 the governing body of the public entity determines that such
217 analysis should be performed by employees of the public entity.
218 (e) The task force must submit a final report of its
219 recommendations to the Governor, the President of the Senate,
220 and the Speaker of the House of Representatives by July 1, 2014.
221 (f) The task force is terminated December 31, 2014. The
222 establishment of guidelines pursuant to this section or the
223 adoption of such guidelines by a responsible public entity is
224 not required for such entity to request or receive proposals for
225 a qualifying project or to enter into a comprehensive agreement
226 for a qualifying project. A responsible public entity may adopt
227 guidelines so long as such guidelines are not inconsistent with
228 this section.
229 (3) (4) PROCUREMENT PROCEDURES.—A responsible public entity
230 may receive unsolicited proposals or may solicit proposals for
231 qualifying projects and may thereafter enter into a
232 comprehensive an agreement with a private entity, or a
233 consortium of private entities, for the building, upgrading,
234 operating, ownership, or financing of facilities.
235 (a)1. The responsible public entity may establish a
236 reasonable application fee for the submission of an unsolicited
237 proposal under this section.
238 2. A private entity that submits an unsolicited proposal to
239 the responsible public entity must concurrently pay an initial
240 application fee, as determined by the responsible public entity.
241 Payment must be made by cash, cashier’s check, or other
242 noncancelable instrument. Personal checks may not be accepted.
243 3. If the initial application fee does not cover the
244 responsible public entity’s costs to evaluate the unsolicited
245 proposal, the responsible public entity must request in writing
246 the additional amounts required. The private entity must pay the
247 requested additional amounts within 30 days after receipt of the
248 notice. The responsible public entity may stop its review of the
249 unsolicited proposal if the private entity fails to pay the
250 additional fee.
251 4. If the responsible public entity does not evaluate the
252 unsolicited proposal, the responsible public entity must return
253 the application fee The fee must be sufficient to pay the costs
254 of evaluating the proposal. The responsible public entity may
255 engage the services of a private consultant to assist in the
257 (b) The responsible public entity may request a proposal
258 from private entities for a qualifying public-private project
259 or, if the responsible public entity receives an unsolicited
260 proposal for a qualifying public-private project and the
261 responsible public entity intends to enter into a comprehensive
262 agreement for the project described in the such unsolicited
263 proposal, the responsible public entity shall publish notice in
264 the Florida Administrative Register and a newspaper of general
265 circulation at least once a week for 2 weeks stating that the
266 responsible public entity has received a proposal and will
267 accept other proposals for the same project. The timeframe
268 within which the responsible public entity may accept other
269 proposals shall be determined by the responsible public entity
270 on a project-by-project basis based upon the complexity of the
271 qualifying project and the public benefit to be gained by
272 allowing a longer or shorter period of time within which other
273 proposals may be received; however, the timeframe for allowing
274 other proposals must be at least 21 days, but no more than 120
275 days, after the initial date of publication. If approved by a
276 majority vote of the responsible public entity’s governing body,
277 the responsible public entity may alter the timeframe for
278 accepting proposals to more adequately suit the needs of the
279 qualifying project. A copy of the notice must be mailed to each
280 local government in the affected area.
281 (c) If the responsible public entity solicits proposals
282 under this section, the solicitation must include a design
283 criteria package prepared by an architect, an engineer, or a
284 landscape architect licensed in this state which is sufficient
285 to allow private entities to prepare a bid or a response. The
286 design criteria package must specify performance-based criteria
287 for the project, including the legal description of the site,
288 with survey information; interior space requirements; material
289 quality standards; schematic layouts and conceptual design
290 criteria for the project; cost or budget estimates; design and
291 construction schedules; and site development and utility
292 requirements A responsible public entity that is a school board
293 may enter into a comprehensive agreement only with the approval
294 of the local governing body.
295 (d) Before approving a comprehensive agreement approval,
296 the responsible public entity must determine that the proposed
298 1. Is in the public’s best interest.
299 2. Is for a facility that is owned by the responsible
300 public entity or for a facility for which ownership will be
301 conveyed to the responsible public entity.
302 3. Has adequate safeguards in place to ensure that
303 additional costs or service disruptions are not imposed on the
304 public in the event of material default or cancellation of the
305 comprehensive agreement by the responsible public entity.
306 4. Has adequate safeguards in place to ensure that the
307 responsible public entity or private entity has the opportunity
308 to add capacity to the proposed project or other facilities
309 serving similar predominantly public purposes.
310 5. Will be owned by the responsible public entity upon
311 completion, expiration, or termination of the comprehensive
312 agreement and upon payment of the amounts financed.
313 (e) Before signing a comprehensive agreement, the
314 responsible public entity must consider a reasonable finance
315 plan that is consistent with subsection (9) (11); the qualifying
316 project cost; revenues by source; available financing; major
317 assumptions; internal rate of return on private investments, if
318 governmental funds are assumed in order to deliver a cost
319 feasible project; and a total cash-flow analysis beginning with
320 the implementation of the project and extending for the term of
321 the comprehensive agreement.
322 (f) In considering an unsolicited proposal, the responsible
323 public entity may require from the private entity a technical
324 study prepared by a nationally recognized expert with experience
325 in preparing analyses analysis for bond rating agencies. In
326 evaluating the technical study, the responsible public entity
327 may rely upon internal staff reports prepared by personnel
328 familiar with the operation of similar facilities or the advice
329 of external advisors or consultants who have relevant
331 (4) (5) PROJECT APPROVAL REQUIREMENTS.—An unsolicited
332 proposal from a private entity for approval of a qualifying
333 project must be accompanied by the following material and
334 information, unless waived by the responsible public entity:
335 (a) A description of the qualifying project, including the
336 conceptual design of the facilities or a conceptual plan for the
337 provision of services, and a schedule for the initiation and
338 completion of the qualifying project.
339 (b) A description of the method by which the private entity
340 proposes to secure the necessary property interests that are
341 required for the qualifying project.
342 (c) A description of the private entity’s general plans for
343 financing the qualifying project, including the sources of the
344 private entity’s funds and the identity of any dedicated revenue
345 source or proposed debt or equity investment on behalf of the
346 private entity.
347 (d) The name and address of a person who may be contacted
348 for additional information concerning the proposal.
349 (e) The proposed user fees, lease payments, or other
350 service payments over the term of a comprehensive agreement, and
351 the methodology for and circumstances that would allow changes
352 to the user fees, lease payments, and other service payments
353 over time.
354 (f) Additional material or information that the responsible
355 public entity reasonably requests.
357 Any pricing or financial terms included in an unsolicited
358 proposal must be specific as to when the pricing or terms
360 (5) (6) PROJECT QUALIFICATION AND PROCESS.—
361 (a) The private entity, or the applicable party or parties
362 of the private entity’s team, must meet the minimum standards
363 contained in the responsible public entity’s guidelines for
364 qualifying professional services and contracts for traditional
365 procurement projects.
366 (b) The responsible public entity must:
367 1. Ensure that provision is made for the private entity’s
368 performance and payment of subcontractors, including, but not
369 limited to, surety bonds, letters of credit, parent company
370 guarantees, and lender and equity partner guarantees. For the
371 components of the qualifying project which involve construction
372 performance and payment, bonds are required and are subject to
373 the recordation, notice, suit limitation, and other requirements
374 of s. 255.05.
375 2. Ensure the most efficient pricing of the security
376 package that provides for the performance and payment of
378 3. Ensure that provision is made for the transfer of the
379 private entity’s obligations if the comprehensive agreement
380 addresses termination upon is terminated or a material default
381 of the comprehensive agreement occurs.
382 (c) After the public notification period has expired in the
383 case of an unsolicited proposal, the responsible public entity
384 shall rank the proposals received in order of preference. In
385 ranking the proposals, the responsible public entity may
386 consider factors that include, but are not limited to,
387 professional qualifications, general business terms, innovative
388 design techniques or cost-reduction terms, and finance plans.
389 The responsible public entity may then begin negotiations for a
390 comprehensive agreement with the highest-ranked firm. If the
391 responsible public entity is not satisfied with the results of
392 the negotiations, the responsible public entity may terminate
393 negotiations with the proposer and negotiate with the second
394 ranked or subsequent-ranked firms, in the order consistent with
395 this procedure. If only one proposal is received, the
396 responsible public entity may negotiate in good faith, and if
397 the responsible public entity is not satisfied with the results
398 of the negotiations, the responsible public entity may terminate
399 negotiations with the proposer. Notwithstanding this paragraph,
400 the responsible public entity may reject all proposals at any
401 point in the process until a contract with the proposer is
403 (d) The responsible public entity shall perform an
404 independent analysis of the proposed public-private partnership
405 which demonstrates the cost-effectiveness and overall public
406 benefit before the procurement process is initiated or before
407 the contract is awarded.
408 (e) The responsible public entity may approve the
409 development or operation of an educational facility, a
410 transportation facility, a water or wastewater management
411 facility or related infrastructure, a technology infrastructure
412 or other public infrastructure, or a government facility needed
413 by the responsible public entity as a qualifying project, or the
414 design or equipping of a qualifying project that is developed or
415 operated, if:
416 1. There is a public need for or benefit derived from a
417 project of the type that the private entity proposes as the
418 qualifying project.
419 2. The estimated cost of the qualifying project is
420 reasonable in relation to similar facilities.
421 3. The private entity’s plans will result in the timely
422 acquisition, design, construction, improvement, renovation,
423 expansion, equipping, maintenance, or operation of the
424 qualifying project.
425 (f) The responsible public entity may charge a reasonable
426 fee to cover the costs of processing, reviewing, and evaluating
427 the request, including, but not limited to, reasonable attorney
428 fees and fees for financial and technical advisors or
429 consultants and for other necessary advisors or consultants.
430 (g) Upon approval of a qualifying project, the responsible
431 public entity shall establish a date for the commencement of
432 activities related to the qualifying project. The responsible
433 public entity may extend the commencement date.
434 (h) Approval of a qualifying project by the responsible
435 public entity is subject to entering into a comprehensive
436 agreement with the private entity.
437 (7) NOTICE TO AFFECTED LOCAL JURISDICTIONS.—
438 (a) The responsible public entity must notify each affected
439 local jurisdiction by furnishing a copy of the proposal to each
440 affected local jurisdiction when considering a proposal for a
441 qualifying project.
442 (b) Each affected local jurisdiction that is not a
443 responsible public entity for the respective qualifying project
444 may, within 60 days after receiving the notice, submit in
445 writing any comments to the responsible public entity and
446 indicate whether the facility is incompatible with the local
447 comprehensive plan, the local infrastructure development plan,
448 the capital improvements budget, any development of regional
449 impact processes or timelines, or other governmental spending
450 plan. The responsible public entity shall consider the comments
451 of the affected local jurisdiction before entering into a
452 comprehensive agreement with a private entity. If an affected
453 local jurisdiction fails to respond to the responsible public
454 entity within the time provided in this paragraph, the
455 nonresponse is deemed an acknowledgment by the affected local
456 jurisdiction that the qualifying project is compatible with the
457 local comprehensive plan, the local infrastructure development
458 plan, the capital improvements budget, or other governmental
459 spending plan.
460 (6) (8) INTERIM AGREEMENT.—Before or in connection with the
461 negotiation of a comprehensive agreement, the responsible public
462 entity may enter into an interim agreement with the private
463 entity proposing the development or operation of the qualifying
464 project. An interim agreement does not obligate the responsible
465 public entity to enter into a comprehensive agreement. The
466 interim agreement is discretionary with the parties and is not
467 required on a qualifying project for which the parties may
468 proceed directly to a comprehensive agreement without the need
469 for an interim agreement. An interim agreement must be limited
470 to provisions that:
471 (a) Authorize the private entity to commence activities for
472 which it may be compensated related to the proposed qualifying
473 project, including, but not limited to, project planning and
474 development, design, environmental analysis and mitigation,
475 survey, other activities concerning any part of the proposed
476 qualifying project, and ascertaining the availability of
477 financing for the proposed facility or facilities.
478 (b) Establish the process and timing of the negotiation of
479 the comprehensive agreement.
480 (c) Contain such other provisions related to an aspect of
481 the development or operation of a qualifying project that the
482 responsible public entity and the private entity deem
484 (7) (9) COMPREHENSIVE AGREEMENT.—
485 (a) Before developing or operating the qualifying project,
486 the private entity must enter into a comprehensive agreement
487 with the responsible public entity. The comprehensive agreement
488 must provide for:
489 1. Delivery of performance and payment bonds, letters of
490 credit, or other security acceptable to the responsible public
491 entity in connection with the development or operation of the
492 qualifying project in the form and amount satisfactory to the
493 responsible public entity. For the components of the qualifying
494 project which involve construction, the form and amount of the
495 bonds must comply with s. 255.05.
496 2. Review of the design for the qualifying project by the
497 responsible public entity and, if the design conforms to
498 standards acceptable to the responsible public entity, the
499 approval of the responsible public entity. This subparagraph
500 does not require the private entity to complete the design of
501 the qualifying project before the execution of the comprehensive
503 3. Inspection of the qualifying project by the responsible
504 public entity to ensure that the private entity’s activities are
505 acceptable to the responsible public entity in accordance with
506 the comprehensive agreement.
507 4. Maintenance of a policy of public liability insurance, a
508 copy of which must be filed with the responsible public entity
509 and accompanied by proofs of coverage, or self-insurance, each
510 in the form and amount satisfactory to the responsible public
511 entity and reasonably sufficient to ensure coverage of tort
512 liability to the public and employees and to enable the
513 continued operation of the qualifying project.
514 5. Monitoring by the responsible public entity of the
515 maintenance practices to be performed by the private entity to
516 ensure that the qualifying project is properly maintained.
517 6. Periodic filing by the private entity of the appropriate
518 financial statements that pertain to the qualifying project.
519 7. Procedures that govern the rights and responsibilities
520 of the responsible public entity and the private entity in the
521 course of the construction and operation of the qualifying
522 project and in the event of the termination of the comprehensive
523 agreement or a material default by the private entity. The
524 procedures must include conditions that govern the assumption of
525 the duties and responsibilities of the private entity by an
526 entity that funded, in whole or in part, the qualifying project
527 or by the responsible public entity, and must provide for the
528 transfer or purchase of property or other interests of the
529 private entity by the responsible public entity.
530 8. Fees, lease payments, or service payments. In
531 negotiating user fees, the fees must be the same for persons
532 using the facility under like conditions and must not materially
533 discourage use of the qualifying project. The execution of the
534 comprehensive agreement or a subsequent amendment is conclusive
535 evidence that the fees, lease payments, or service payments
536 provided for in the comprehensive agreement comply with this
537 section. Fees or lease payments established in the comprehensive
538 agreement as a source of revenue may be in addition to, or in
539 lieu of, service payments.
540 9. Duties of the private entity, including the terms and
541 conditions that the responsible public entity determines serve
542 the public purpose of this section.
543 (b) The comprehensive agreement may include:
544 1. An agreement by the responsible public entity to make
545 grants or loans to the private entity from amounts received from
546 the federal, state, or local government or an agency or
547 instrumentality thereof.
548 2. A provision under which each entity agrees to provide
549 notice of default and cure rights for the benefit of the other
550 entity, including, but not limited to, a provision regarding
551 unavoidable delays.
552 3. A provision that terminates the authority and duties of
553 the private entity under this section and dedicates the
554 qualifying project to the responsible public entity or, if the
555 qualifying project was initially dedicated by an affected local
556 jurisdiction, to the affected local jurisdiction for public use.
557 (8) (10) FEES.—A comprehensive An agreement entered into
558 pursuant to this section may authorize the private entity to
559 impose fees on to members of the public for the use of the
560 facility. The following provisions apply to the comprehensive
562 (a) The responsible public entity may develop new
563 facilities or increase capacity in existing facilities through a
564 comprehensive agreement with a private entity agreements with
565 public-private partnerships.
566 (b) The comprehensive public-private partnership agreement
567 must ensure that the facility is properly operated, maintained,
568 or improved in accordance with standards set forth in the
569 comprehensive agreement.
570 (c) The responsible public entity may lease existing fee
571 for-use facilities through a comprehensive public-private
572 partnership agreement.
573 (d) Any revenues must be authorized by and applied in the
574 manner set forth in regulated by the responsible public entity
575 pursuant to the comprehensive agreement.
576 (e) A negotiated portion of revenues from fee-generating
577 uses may must be returned to the responsible public entity over
578 the life of the comprehensive agreement.
579 (9) (11) FINANCING.—
580 (a) A private entity may enter into a private-source
581 financing agreement between financing sources and the private
582 entity. A financing agreement and any liens on the property or
583 facility must be paid in full at the applicable closing that
584 transfers ownership or operation of the facility to the
585 responsible public entity at the conclusion of the term of the
586 comprehensive agreement.
587 (b) The responsible public entity may lend funds to private
588 entities that construct projects containing facilities that are
589 approved under this section.
590 (c) The responsible public entity may use innovative
591 finance techniques associated with a public-private partnership
592 under this section, including, but not limited to, federal loans
593 as provided in Titles 23 and 49 C.F.R., commercial bank loans,
594 and hedges against inflation from commercial banks or other
595 private sources. In addition, the responsible public entity may
596 provide its own capital or operating budget to support a
597 qualifying project. The budget may be from any legally
598 permissible funding sources of the responsible public entity,
599 including the proceeds of debt issuances. A responsible public
600 entity may use the model financing agreement provided in s.
601 489.145(6) for its financing of a facility owned by a
602 responsible public entity. A financing agreement may not require
603 the responsible public entity to indemnify the financing source,
604 subject the responsible public entity’s facility to liens in
605 violation of s. 11.066(5), or secure financing of by the
606 responsible public entity by a mortgage on, or security interest
607 in, the real or tangible personal property of the responsible
608 public entity in a manner that could result in the loss of the
609 fee ownership of the property by the responsible public entity
610 with a pledge of security interest, and any such provision is
612 (d) A responsible public entity shall appropriate on a
613 priority basis as required by the comprehensive agreement a
614 contractual payment obligation, annual or otherwise, from the
615 enterprise or other government fund from which the qualifying
616 projects will be funded. This required payment obligation must
617 be appropriated before other noncontractual obligations payable
618 from the same enterprise or other government fund.
619 (10) (12) POWERS AND DUTIES OF THE PRIVATE ENTITY.—
620 (a) The private entity shall:
621 1. Develop or operate the qualifying project in a manner
622 that is acceptable to the responsible public entity in
623 accordance with the provisions of the comprehensive agreement.
624 2. Maintain, or provide by contract for the maintenance or
625 improvement of, the qualifying project if required by the
626 comprehensive agreement.
627 3. Cooperate with the responsible public entity in making
628 best efforts to establish interconnection between the qualifying
629 project and any other facility or infrastructure as requested by
630 the responsible public entity in accordance with the provisions
631 of the comprehensive agreement.
632 4. Comply with the comprehensive agreement and any lease or
633 service contract.
634 (b) Each private facility that is constructed pursuant to
635 this section must comply with the requirements of federal,
636 state, and local laws; state, regional, and local comprehensive
637 plans; the responsible public entity’s rules, procedures, and
638 standards for facilities; and such other conditions that the
639 responsible public entity determines to be in the public’s best
640 interest and that are included in the comprehensive agreement.
641 (c) The responsible public entity may provide services to
642 the private entity. An agreement for maintenance and other
643 services entered into pursuant to this section must provide for
644 full reimbursement for services rendered for qualifying
646 (d) A private entity of a qualifying project may provide
647 additional services for the qualifying project to the public or
648 to other private entities if the provision of additional
649 services does not impair the private entity’s ability to meet
650 its commitments to the responsible public entity pursuant to the
651 comprehensive agreement.
652 (11) (13) EXPIRATION OR TERMINATION OF AGREEMENTS.—Upon the
653 expiration or termination of a comprehensive agreement, the
654 responsible public entity may use revenues from the qualifying
655 project to pay current operation and maintenance costs of the
656 qualifying project. If the private entity materially defaults
657 under the comprehensive agreement, the compensation that is
658 otherwise due to the private entity is payable to satisfy all
659 financial obligations to investors and lenders on the qualifying
660 project in the same way that is provided in the comprehensive
661 agreement or any other agreement involving the qualifying
662 project, if the costs of operating and maintaining the
663 qualifying project are paid in the normal course. Revenues in
664 excess of the costs for operation and maintenance costs may be
665 paid to the investors and lenders to satisfy payment obligations
666 under their respective agreements. A responsible public entity
667 may terminate with cause and without prejudice a comprehensive
668 agreement and may exercise any other rights or remedies that may
669 be available to it in accordance with the provisions of the
670 comprehensive agreement. The full faith and credit of the
671 responsible public entity may not be pledged to secure the
672 financing of the private entity. The assumption of the
673 development or operation of the qualifying project does not
674 obligate the responsible public entity to pay any obligation of
675 the private entity from sources other than revenues from the
676 qualifying project unless stated otherwise in the comprehensive
678 (12) (14) SOVEREIGN IMMUNITY.—This section does not waive
679 the sovereign immunity of a responsible public entity, an
680 affected local jurisdiction, or an officer or employee thereof
681 with respect to participation in, or approval of, any part of a
682 qualifying project or its operation, including, but not limited
683 to, interconnection of the qualifying project with any other
684 infrastructure or project. A county or municipality in which a
685 qualifying project is located possesses sovereign immunity with
686 respect to the project, including, but not limited to, its
687 design, construction, and operation.
688 (13) DEPARTMENT OF MANAGEMENT SERVICES.—
689 (a) A responsible public entity may provide a copy of its
690 comprehensive agreement to the Department of Management
691 Services. A responsible public entity must redact any
692 confidential or exempt information from the copy of the
693 comprehensive agreement before providing it to the Department of
694 Management Services.
695 (b) The Department of Management Services may accept and
696 maintain copies of comprehensive agreements received from
697 responsible public entities for the purpose of sharing
698 comprehensive agreements with other responsible public entities.
699 (c) This subsection does not require a responsible public
700 entity to provide a copy of its comprehensive agreement to the
701 Department of Management Services.
702 (14) (15) CONSTRUCTION.—
703 (a) This section shall be liberally construed to effectuate
704 the purposes of this section.
705 (b) This section shall be construed as cumulative and
706 supplemental to any other authority or power vested in or
707 exercised by the governing body board of a county, municipality,
708 special district, or municipal hospital or health care system
709 including those contained in acts of the Legislature
710 establishing such public hospital boards or s. 155.40.
711 (c) This section does not affect any agreement or existing
712 relationship with a supporting organization involving such
713 governing body board or system in effect as of January 1, 2013.
714 (d) (a) This section provides an alternative method and does
715 not limit a county, municipality, special district, or other
716 political subdivision of the state in the procurement or
717 operation of a qualifying project acquisition, design, or
718 construction of a public project pursuant to other statutory or
719 constitutional authority.
720 (e) (b) Except as otherwise provided in this section, this
721 section does not amend existing laws by granting additional
722 powers to, or further restricting, a local governmental entity
723 from regulating and entering into cooperative arrangements with
724 the private sector for the planning, construction, or operation
725 of a facility.
726 (f) (c) This section does not waive any requirement of s.
728 Section 2. Section 287.0935, Florida Statutes, is amended
729 to read:
730 287.0935 Surety bond insurers.—When the contract amount of
731 a project that uses public funds does not exceed $5 million
732 $500,000 and when public funds are utilized for the project, a
733 person, the state, or a political subdivision may shall not
734 refuse , as surety for the project, bid bonds, performance bonds,
735 labor and materials payment bonds, or any other surety bonds as
736 surety for the project if such bonds which are issued by a
737 surety company that meets all which fulfills each of the
738 following requirements provisions:
739 (1) The surety company is licensed to do business in this
740 state. the State of Florida;
741 (2) The surety company holds a certificate of authority
742 authorizing it to write surety bonds in this state. ;
743 (3) The surety company has twice the minimum surplus and
744 capital required by the Florida Insurance Code at the time the
745 invitation to bid is issued, or is currently rated “A-” or
746 higher by A.M. Best Company. ;
747 (4) The surety company is otherwise in compliance with the
748 provisions of the Florida Insurance Code. ; and
749 (5) The surety company holds a currently valid certificate
750 of authority issued by the United States Department of the
751 Treasury under 31 U.S.C. ss. 9304-9308.
752 Section 3. This act shall take effect July 1, 2016.