Florida Senate - 2016                                     SB 124
       By Senator Evers
       2-00110-16                                             2016124__
    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:
   46         255.065 287.05712 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
   86  sector;
   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.
  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
  161  follows:
  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
  182  expenses.
  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
  189  proposals.
  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
  195  priority.
  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
  256  evaluation.
  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
  297  project:
  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
  330  experience.
  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
  359  expire.
  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
  377  subcontractors.
  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
  402  executed.
  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.
  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
  483  appropriate.
  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
  502  agreement.
  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
  561  agreement:
  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
  611  void.
  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.
  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
  645  projects.
  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
  677  agreement.
  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.
  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.
  727  287.055.
  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.