Senate Bill sb2580

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    Florida Senate - 2003                                  SB 2580

    By Senator Sebesta





    16-1555-03

  1                      A bill to be entitled

  2         An act relating to roads; amending s. 334.30,

  3         F.S.; providing for public-private

  4         transportation facilities; eliminating the

  5         requirement that the Legislature approve such

  6         facilities; providing requirements for the use

  7         of funds from the State Transportation Trust

  8         Fund; providing requirements with respect to

  9         proposals; providing a selection process;

10         providing for specific project approval by the

11         Legislature for certain projects; authorizing

12         the Department of Transportation to create

13         certain corporations; authorizing such

14         corporations to issue bonds; authorizing the

15         department to lend certain funds to such

16         corporations; authorizing the department to

17         adopt rules; repealing s. 348.0004(2)(m), F.S.,

18         relating to private entity proposals for

19         transportation projects; amending s. 348.0004,

20         F.S.; establishing a process enabling certain

21         expressway authorities to participate in

22         public-private partnerships to build, operate,

23         own, or finance certain transportation

24         facilities; specifying the expressway

25         authority's role in such projects and providing

26         rulemaking authority; providing for a selection

27         process; providing for the assessment of tolls;

28         providing for creation of certain tax-exempt,

29         public-purpose corporations; authorizing such

30         corporations to issue bonds; providing an

31         effective date.

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    Florida Senate - 2003                                  SB 2580
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 1  Be It Enacted by the Legislature of the State of Florida:

 2  

 3         Section 1.  Section 334.30, Florida Statutes, is

 4  amended to read:

 5         334.30  Public-private Private transportation

 6  facilities.--The Legislature hereby finds and declares that

 7  there is a public need for rapid construction of safe and

 8  efficient transportation facilities for the purpose of travel

 9  within the state, and that it is in the public's interest to

10  provide for public-private partnership agreements to

11  effectuate the construction of additional safe, convenient,

12  and economical transportation facilities.

13         (1)  The department may receive or solicit proposals

14  and, with legislative approval by a separate bill for each

15  facility, enter into agreements with private entities, or

16  consortia thereof, for the building, operation, ownership, or

17  financing of transportation facilities. The department may

18  adopt rules to implement this section and shall by rule

19  establish an application fee for the submission of proposals

20  under this section.  The fee must be sufficient to pay the

21  costs of evaluating the proposals.  The department may engage

22  the services of private consultants to assist in the

23  evaluation. Before seeking legislative approval, the

24  department must determine that the proposed project:

25         (a)  Is in the public's best interest.;

26         (b)  Would not require state funds to be used unless

27  there is an overriding state interest; however, the department

28  may use state resources for a transportation facility project

29  that is on the State Highway System or that provides for

30  increased mobility on the state's transportation system. and

31  

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    Florida Senate - 2003                                  SB 2580
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 1         (c)  Would have adequate safeguards in place to ensure

 2  that no additional costs or service disruptions would be

 3  realized by the traveling public and citizens of the state in

 4  the event of default or cancellation of the agreement by the

 5  department.

 6  

 7  The department shall ensure that all reasonable costs to the

 8  state related to transportation facilities that are not part

 9  of the State Highway System are borne by the public-private

10  entity. The department shall also ensure that all reasonable

11  costs to the state, and substantially affected local

12  governments, and utilities, related to the private

13  transportation facility, are borne by the public-private

14  private entity for transportation facilities that are owned by

15  private entities.

16         (2)  The use of funds from the State Transportation

17  Trust Fund is limited to advancing projects currently

18  programmed in the adopted 5-year work program or to a maximum

19  statewide total of $25 million in capital costs for all

20  projects not programmed in the adopted 5-year work program.

21         (3)  The department may request proposals for

22  public-private transportation projects or, if the department

23  receives an unsolicited proposal, shall publish a notice

24  within 30 days in the Florida Administrative Weekly and a

25  newspaper of general circulation at least once a week for 2

26  weeks, stating that the department has received the proposal

27  and will accept, for 60 days after the initial date of

28  publication, other proposals for the same project purpose. A

29  copy of the notice must be mailed to each local government in

30  the affected area. After the public notification period has

31  expired, the department shall rank the proposals in order of

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    Florida Senate - 2003                                  SB 2580
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 1  preference. In ranking the proposals, the department may

 2  consider, but is not limited to considering, professional

 3  qualifications, general business terms, innovative engineering

 4  or cost-reduction terms, finance plans, and the need for state

 5  funds to deliver the proposal. The department shall negotiate

 6  with the top-ranked proposer in good faith. If the department

 7  is not satisfied with the results of the negotiations, it may

 8  terminate negotiations with that proposer and negotiate with

 9  the second and lower-ranked firms, in order, using the same

10  procedure. If only one proposal is received, the department

11  may negotiate in good faith, and if it is not satisfied with

12  the results, it may terminate negotiations with the proposer.

13  Notwithstanding any other provision of this subsection, the

14  department may reject all proposals at any time prior to

15  completion of a contract.

16         (4)  The department may not commit funds in excess of

17  the limitation in subsection (2) without specific project

18  approval by the Legislature.

19         (5)(2)  Agreements entered into pursuant to this

20  section may authorize the private entity to impose tolls or

21  fares for the use of the facility.  However, the amount and

22  use of toll or fare revenues may be regulated by the

23  department to avoid unreasonable costs to users of the

24  facility.

25         (6)(3)  Each private transportation facility

26  constructed pursuant to this section shall comply with all

27  requirements of federal, state, and local laws; state,

28  regional, and local comprehensive plans; department rules,

29  policies, procedures, and standards for transportation

30  facilities; and any other conditions which the department

31  determines to be in the public's best interest.

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    Florida Senate - 2003                                  SB 2580
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 1         (7)(4)  The department may exercise any power possessed

 2  by it, including eminent domain, with respect to the

 3  development and construction of state transportation projects

 4  to facilitate the development and construction of

 5  transportation projects pursuant to this section. For

 6  public-private facilities located on the State Highway System,

 7  the department may pay all or part of the cost of operating

 8  and maintaining the facility. For facilities not located on

 9  the State Highway System, the department may provide services

10  to the private entity and. agreements for maintenance, law

11  enforcement, and other services entered into pursuant to this

12  section shall provide for full reimbursement for services

13  rendered.

14         (8)(5)  Except as herein provided, the provisions of

15  this section are not intended to amend existing laws by

16  granting additional powers to, or further restricting, local

17  governmental entities from regulating and entering into

18  cooperative arrangements with the private sector for the

19  planning, construction, and operation of transportation

20  facilities.

21         (9)  The department may create or assist in the

22  creation of tax-exempt, public-purpose Internal Revenue

23  Service Ruling 63-20 corporations. Bonds issued by a 63-20

24  corporation are payable solely from and secured by a lien upon

25  and pledge of the revenues received by the corporation, and do

26  not constitute a general indebtedness of this state, any

27  department or agency thereof, or any political subdivision,

28  within the meaning of any constitutional or statutory

29  provision or limitation. The full faith and credit of this

30  state may not be pledged to the payment of principal or

31  interest of bonds issued by the 63-20 corporation. A bond

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    Florida Senate - 2003                                  SB 2580
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 1  owner may not require or compel the exercise of the taxing

 2  power of the state or any department or agency thereof for

 3  payment, and the bonds are not a lien on any property owned by

 4  the state or any department or state agency. Bonds issued by

 5  the corporation shall be rated investment grade by a

 6  nationally recognized credit rating agency. Any bonds issued

 7  by a 63-20 corporation to finance a project requiring the use

 8  of state money, directly or indirectly, shall be reviewed and

 9  approved by the Secretary of Transportation. This subsection

10  does not prohibit credit enhancement of such bonds, whether by

11  private or governmental sources other than sources backed by

12  the taxing power of this state, nor does it prohibit the

13  pledging of additional funds or revenues from private sources

14  to secure such bonds. Internal Revenue Service Ruling 63-20

15  corporations may receive State Transportation Trust Fund

16  grants and loans from the department. The department may enter

17  into public-private partnership agreements with 63-20

18  corporations for projects under this section but may not agree

19  to expend any funds not appropriated for this purpose. Section

20  339.135(6) applies to such agreements.

21         (10)  The department may lend funds from the Toll

22  Facilities Revolving Trust Fund, as outlined in s. 338.251, to

23  63-20 corporations that construct projects containing toll

24  facilities approved under this section. To be eligible, a

25  63-20 corporation must comply with s. 338.251 and must provide

26  an indication from a nationally recognized rating agency that

27  the senior bonds of the corporation will be investment grade

28  or must provide credit support, such as a letter of credit or

29  other means acceptable to the department, to ensure that the

30  loans will be fully repaid. The state's liability for debt of

31  a facility is limited to the amount approved for that specific

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    Florida Senate - 2003                                  SB 2580
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 1  facility in the department's 5-year work program adopted

 2  pursuant to s. 339.135.

 3         (11)(6)  Notwithstanding s. 341.327, a fixed-guideway

 4  transportation system authorized by the department to be

 5  wholly or partially within the department's right-of-way

 6  pursuant to a lease granted under s. 337.251 may operate at

 7  any safe speed.

 8         Section 2.  Paragraph (m) of subsection (2) of section

 9  348.0004, Florida Statutes, is repealed.

10         Section 3.  Subsection (9) is added to section

11  348.0004, Florida Statutes, to read:

12         348.0004  Purposes and powers.--

13         (9)  The Legislature declares that there is a public

14  need for rapid construction of safe and efficient

15  transportation facilities for travel within the state and that

16  it is in the public's interest to provide for public-private

17  partnership agreements to construct additional safe,

18  convenient, and economical transportation facilities.

19         (a)  Any expressway authority as defined in s.

20  125.011(1) may receive or solicit proposals and enter into

21  agreements with private entities, or consortia thereof, for

22  the building, operation, ownership, or financing or extensions

23  or other improvements to existing expressway authority

24  transportation facilities or new transportation facilities

25  that are within the jurisdiction of the expressway authority.

26  An expressway authority may adopt rules to implement this

27  subsection and shall, by rule, establish an application fee

28  for the submission of unsolicited proposals under this

29  subsection. The fee must be sufficient to pay the costs of

30  evaluating the proposals. An expressway authority may engage

31  private consultants to assist in the evaluation. Before

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    Florida Senate - 2003                                  SB 2580
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 1  approval, an expressway authority must determine that a

 2  proposed project:

 3         1.  Is in the public's best interest.

 4         2.  Has adequate safeguards to ensure that additional

 5  costs or service disruptions will not be realized by the

 6  public if the private entity or consortium defaults or the

 7  expressway authority cancels the agreement.

 8         (b)  The expressway authority may request proposals for

 9  public-private transportation projects or, if it receives an

10  unsolicited proposal that it wants to evaluate, it shall

11  publish a notice in the Florida Administrative Weekly and a

12  newspaper of general circulation in the county in which it is

13  located at least once a week for 2 weeks, stating that it has

14  received the proposal and will accept, for 60 days after the

15  initial date of publication, other proposals for the same

16  project purpose. A copy of the notice must be mailed to each

17  local government in the affected areas. After the public

18  notification period has expired, the expressway authority

19  shall rank the proposals in order of preference. In ranking

20  the proposals, the expressway authority may consider

21  professional qualifications, general business terms,

22  innovative engineering or cost-reduction terms, finance plans,

23  and the need for state funds to deliver the proposal. The

24  expressway authority shall negotiate with the top-ranked

25  proposer in good faith, and if the expressway authority is not

26  satisfied with the results of the negotiations, it may

27  terminate negotiations with the proposer and negotiate with

28  the second and lower-ranked firms, in order, using the same

29  procedure. If only one proposal is received, the expressway

30  authority may negotiate in good faith, and if it is not

31  satisfied with the results, it may terminate negotiations with

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    Florida Senate - 2003                                  SB 2580
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 1  the proposer. Notwithstanding any other provision of this

 2  paragraph, the expressway authority may reject all proposals

 3  at any point prior to completion of a contract.

 4         (c)  Agreements entered into pursuant to this

 5  subsection may authorize the private entity to impose tolls or

 6  fares for the use of the facility. However, the amount and use

 7  of toll or fare revenues may be regulated by the expressway

 8  authority to avoid unreasonable costs to users of the

 9  facility.

10         (d)  Each transportation facility constructed pursuant

11  to this subsection shall comply with all requirements of

12  federal, state, and local laws; state, regional, and local

13  comprehensive plans; the expressway authority's rules,

14  policies, procedures, and standards for transportation

15  facilities; and any other conditions that the expressway

16  authority determines to be in the public's best interest.

17         (e)  An expressway authority may exercise any power

18  possessed by it, including eminent domain, to facilitate the

19  development and construction of transportation projects

20  pursuant to this subsection. An expressway authority may pay

21  all or part of the cost of operating and maintaining the

22  facility or may provide services to the private entity for

23  which it receives full or partial reimbursement for services

24  rendered.

25         (f)  Except as herein provided, this subsection does

26  not amend existing laws by expanding or restricting the

27  authority of local governmental entities to regulate and enter

28  into cooperative arrangements with private entities for the

29  planning, construction, and operation of transportation

30  facilities.

31  

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    Florida Senate - 2003                                  SB 2580
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 1         (g)  An expressway authority may create or assist in

 2  the creation of tax-exempt, public-purpose Internal Revenue

 3  Service Ruling 63-20 corporations. Bonds issued by 63-20

 4  corporations are payable solely from and secured by liens upon

 5  and pledge of the revenues received by the 63-20 corporations

 6  and are not a general indebtedness of this state, any

 7  department or agency thereof, or any political subdivision

 8  thereof within the meaning of any constitutional or statutory

 9  provision or limitation. The full faith and credit of the

10  state may not be pledged to the payment of principal or

11  interest on the bonds issued by the 63-20 corporation. A bond

12  owner may not require or compel the exercise of the taxing

13  power of the state or any department or agency of the state

14  for payment thereof, and the bonds are not a lien upon any

15  property owned by the state or any department or state agency.

16  Bonds issued by 63-20 corporations shall be rated investment

17  grade by a nationally recognized credit rating agency. This

18  paragraph does not prohibit credit enhancement of such bonds

19  by private or governmental sources other than sources backed

20  by the taxing power of the state, nor does it prohibit the

21  pledging of additional funds or revenues from private sources

22  to secure such bonds. An expressway authority may enter into

23  public-private partnership agreements with 63-20 corporations

24  for projects under this subsection.

25         (h)  An expressway authority or 63-20 corporation

26  created under this subsection may apply for grants and loans

27  from the department for projects under this subsection,

28  subject to the eligibility criteria and terms and conditions

29  that would apply to projects of an expressway authority

30  undertaken without private participation.

31         Section 4.  This act shall take effect July 1, 2003.

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    Florida Senate - 2003                                  SB 2580
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 1            *****************************************

 2                          SENATE SUMMARY

 3    Revises provisions relating to public-private
      transportation facilities. Provides procedures and
 4    guidelines for the creation of public-private
      transportation projects by the Department of
 5    Transportation or expressway authorities. Provides for
      the creation of Internal Revenue Service Ruling 63-20
 6    corporations to issue bonds to finance certain projects.
      Provides limitations on such entities. (See bill for
 7    details.)

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