HB 7033

1	A bill to be entitled
2	An act relating to transportation; amending s. 334.30,
3	F.S.; revising legislative intent; authorizing the
4	Department of Transportation to advance certain projects
5	in the Strategic Intermodal System Plan using funds
6	provided by public-private partnerships or private
7	entities; authorizing the department to lease toll
8	facilities to private entities; providing criteria for
9	such leasing agreements; providing that procurements of
10	public-private partnerships are not subject to specified
11	provisions unless they are part of the procurement
12	agreement or the public-private agreement; extending the
13	unsolicited private proposal advertisement period;
14	providing criteria for qualification of public-private
15	partnerships as part of the procurement process; requiring
16	the department to perform cost-benefit, value-for-money
17	analyses of the proposed public-private partnership;
18	providing for certain innovative financing techniques for
19	public-private partnerships; authorizing the department to
20	enter into public-private partnership agreements that
21	include extended terms under certain conditions; requiring
22	certain projects to be prioritized for selection;
23	providing public-private partnership agreement term
24	limits; limiting the amount of certain funds that may be
25	obligated for public-private projects; providing for the
26	disposition of excess toll revenues; removing a provision
27	for the speed of a certain fixed-guideway transportation
28	system; amending s. 338.165, F.S.; providing for toll rate
29	increases that are tied to certain inflation indicators;
30	providing for increases beyond inflation amounts;
31	providing an effective date.
32
33	Be It Enacted by the Legislature of the State of Florida:
34
35	Section 1.  Section 334.30, Florida Statutes, is amended to
36	read:
37	334.30  Public-private transportation facilities.--The
38	Legislature hereby finds and declares that there is a public
39	need for rapid construction of safe and efficient transportation
40	facilities for the purpose of travel within the state. It is the
41	intent of the Legislature to strengthen the state's
42	transportation system by providing the department with
43	innovative financing techniques, including, but not limited to,
44	public-private partnerships, toll facility leases, and user
45	fees. In response to increased congestion, population, and
46	market demands, and that it is in the public's interest to
47	provide for the construction of additional safe, convenient, and
48	economical transportation facilities.
49	(1)  The department may receive or solicit proposals and,
50	with legislative approval as evidenced by approval of the
51	project in the department's work program, enter into agreements
52	with private entities, or consortia thereof, for the building,
53	operation, ownership, or financing of transportation facilities.
54	The department may advance projects programmed in the adopted 5-
55	year work program or projects greater than $500 million in the
56	10-year Strategic Intermodal System Plan using funds provided by
57	public-private partnerships or private entities to be reimbursed
58	from department funds for the project as programmed in the
59	adopted work program. The department shall by rule establish an
60	application fee for the submission of unsolicited proposals
61	under this section. The fee must be sufficient to pay the costs
62	of evaluating the proposals. The department may engage the
63	services of private consultants to assist in the evaluation.
64	Before approval, the department must determine that the proposed
65	project:
66	(a)  Is in the public's best interest;
67	(b)  Would not require state funds to be used unless the
68	project is on the State Highway System; and
69	(c)  Would have adequate safeguards in place to ensure that
70	no additional costs or service disruptions would be realized by
71	the traveling public and citizens of the state in the event of
72	default or cancellation of the agreement by the department.
73
74	The department shall ensure that all reasonable costs to the
75	state, related to transportation facilities that are not part of
76	the State Highway System, are borne by the private entity. The
77	department shall also ensure that all reasonable costs to the
78	state and substantially affected local governments and
79	utilities, related to the private transportation facility, are
80	borne by the private entity for transportation facilities that
81	are owned by private entities. For projects on the State Highway
82	System, the department may use state resources to participate in
83	funding and financing the project as provided for under the
84	department's enabling legislation.
85	(2)  Agreements entered into pursuant to this section may
86	authorize the private entity to impose tolls or fares for the
87	use of the facility. The following provisions shall apply to
88	such agreements: However, the amount and use of toll or fare
89	revenues shall be regulated by the department to avoid
90	unreasonable costs to users of the facility.
91	(a)  With the exception of the Florida Turnpike System, the
92	department may lease existing toll facilities through public-
93	private partnerships. If the agreement for leasing an existing
94	toll facility does not include provisions for additional
95	capacity, the project and the provisions of the agreement must
96	be approved by the Legislature. The public-private partnership
97	agreement must ensure that the toll facility is properly
98	operated, maintained, and renewed in accordance with department
99	standards.
100	(b)  The department may develop new toll facilities or
101	increase capacity on existing toll facilities through public-
102	private partnerships. The public-private partnership agreement
103	must ensure that the toll facility is properly operated,
104	maintained, and renewed in accordance with department standards.
105	(c)  The amount of toll or fare revenues shall be regulated
106	by the department pursuant to s. 338.165(3). The regulations
107	governing the future increase of toll or fare revenues shall be
108	included in the public-private partnership agreement.
109	(d)  The department shall include provisions in the public-
110	private partnership agreement that ensure a portion of excess
111	revenues from tolled projects are returned to the department
112	over the life of the public-private partnership agreement. In
113	the case of a lease of an existing toll facility, the department
114	shall receive a portion of funds upon closing on the agreements
115	and shall also include provisions in the agreement to receive
116	payment of a portion of excess revenues over the life of the
117	public-private partnership.
118	(e)  The private entity shall provide an investment grade
119	traffic and revenue study prepared by an internationally
120	recognized traffic and revenue expert that is accepted by the
121	national bond rating agencies. The private entity shall also
122	provide a finance plan that identifies the project cost,
123	revenues by source, financing, major assumptions, internal rate
124	of return on private investments, and whether any government
125	funds are assumed to deliver a cost feasible project, and a
126	total cash flow analysis beginning with implementation of the
127	project and extending for the term of the agreement. The amount
128	of the toll or fares included in the provisions of agreements
129	under this section shall be consistent with projections included
130	in the study, plan, and analysis provided under this paragraph.
131	Specific elements to be described shall include, but are not
132	limited to, the following:
133	1.  The estimate of ridership and a forecast of annual toll
134	revenues. The method of producing the estimates shall be
135	described in sufficient detail to allow the projections to be
136	verified. Assumptions used in the process shall be clearly
137	indicated.
138	2.  Forecasts shall be provided of any additional sources
139	of revenue anticipated from the proposed facility with clearly
140	stated assumptions and data and methods used to develop the
141	forecasts. Sources for revenue might include the receipts from
142	advertising, station concessions, royalties, and licenses.
143	3.  The amount of associated real estate development and
144	supplemental revenue sources that will be used to supplement
145	operations.
146	4.  If subsidies will be required in the early years of a
147	facility's operation, the source, amount, how they are to be
148	used, and the years in which they will be needed shall be
149	specified. Appropriate contact information and supporting
150	documentation must be provided for each type of fund source for
151	analysis and review by the department.
152	(3)  Each private transportation facility constructed
153	pursuant to this section shall comply with all requirements of
154	federal, state, and local laws; state, regional, and local
155	comprehensive plans; department rules, policies, procedures, and
156	standards for transportation facilities; and any other
157	conditions which the department determines to be in the public's
158	best interest.
159	(4)  The department may exercise any power possessed by it,
160	including eminent domain, with respect to the development and
161	construction of state transportation projects to facilitate the
162	development and construction of transportation projects pursuant
163	to this section. The department may provide services to the
164	private entity. Agreements for maintenance, law enforcement, and
165	other services entered into pursuant to this section shall
166	provide for full reimbursement for services rendered for
167	projects not on the State Highway System.
168	(5)  Except as herein provided, the provisions of this
169	section are not intended to amend existing laws by granting
170	additional powers to, or further restricting, local governmental
171	entities from regulating and entering into cooperative
172	arrangements with the private sector for the planning,
173	construction, and operation of transportation facilities.
174	(6)  The procurement of public-private partnerships by the
175	department shall follow the provisions of this section. Sections
176	337.025, 337.11, 337.14, 337.141, 337.145, 337.175, 337.18,
177	337.185, 337.19, 337.221, and 337.251 shall not apply to
178	procurements under this section unless a provision is included
179	in the procurement documents. The department shall ensure that
180	generally accepted business practices for exemptions provided by
181	this subsection are part of the procurement process or are
182	included in the public-private partnership agreement.
183	(a)  The department may request proposals from private
184	entities for public-private transportation projects or, if the
185	department receives an unsolicited proposal, the department
186	shall publish a notice in the Florida Administrative Weekly and
187	a newspaper of general circulation at least once a week for 2
188	weeks stating that the department has received the proposal and
189	will accept, for 120 60 days after the initial date of
190	publication, other proposals for the same project purpose. A
191	copy of the notice must be mailed to each local government in
192	the affected area.
193	(b)  Public-private partnerships shall be qualified by the
194	department as part of the procurement process as outlined in the
195	procurement documents, provided such process ensures that the
196	private firm meets at least the minimum department standards for
197	qualification in department rule for professional engineering
198	services and road and bridge contracting prior to submitting a
199	proposal under the procurement.
200	(c)  The department shall ensure that procurement documents
201	include provisions for performance of the private entity and
202	payment of subcontractors, including, but not limited to, surety
203	bonds, letters of credit, parent company guarantees, and lender
204	and equity partner guarantees. The department shall balance the
205	structure of the security package for the public-private
206	partnership that ensures performance and payment of
207	subcontractors with the cost of the security to ensure the most
208	efficient pricing.
209	(d)  After the public notification period has expired, the
210	department shall rank the proposals in order of preference. In
211	ranking the proposals, the department may consider factors that
212	include, including, but are not limited to, professional
213	qualifications, general business terms, innovative engineering
214	or cost-reduction terms, finance plans, and the need for state
215	funds to deliver the project. If the department is not satisfied
216	with the results of the negotiations, the department may, at its
217	sole discretion, terminate negotiations with the proposer. If
218	these negotiations are unsuccessful, the department may go to
219	the second-ranked and lower-ranked firms, in order, using this
220	same procedure. If only one proposal is received, the department
221	may negotiate in good faith and, if the department is not
222	satisfied with the results of the negotiations, the department
223	may, at its sole discretion, terminate negotiations with the
224	proposer. Notwithstanding this subsection, the department may,
225	at its discretion, reject all proposals at any point in the
226	process up to completion of a contract with the proposer.
227	(e)  The department shall perform a cost-benefit, value-
228	for-money analysis of the proposed public-private partnership
229	that demonstrates the cost-effectiveness and overall public
230	benefit at the following times:
231	1.  Prior to moving forward with the procurement; and
232	2.  If the procurement moves forward, prior to awarding the
233	contract.
234	(7)  The department may lend funds from the Toll Facilities
235	Revolving Trust Fund, as outlined in s. 338.251, to private
236	entities that construct projects on the State Highway System
237	containing toll facilities that are approved under this section.
238	To be eligible, a private entity must comply with s. 338.251 and
239	must provide an indication from a nationally recognized rating
240	agency that the senior bonds for the project will be investment
241	grade, or must provide credit support such as a letter of credit
242	or other means acceptable to the department, to ensure that the
243	loans will be fully repaid. The state's liability for the
244	funding of a facility is limited to the amount approved for that
245	specific facility in the department's 5-year work program
246	adopted pursuant to s. 339.135.
247	(8)  The department may use innovative finance techniques
248	associated with a public-private partnership under this section,
249	including, but not limited to, federal loans as provided in
250	Title 23 and Title 49 of the Code of Federal Regulations,
251	commercial bank loans, and hedges against inflation from
252	commercial banks or other private sources.
253	(9)  The department may enter into public-private
254	partnership agreements that include extended terms providing
255	annual payments for performance based on the availability of
256	service or the facility being open to traffic or based on the
257	level of traffic using the facility. In addition to other
258	provisions in this section, the following provisions shall
259	apply:
260	(a)  The annual payments under such agreement shall be
261	included in the department's tentative work program developed
262	under s. 339.135 and the long-range transportation plan for the
263	applicable metropolitan planning organization developed under s.
264	339.175. The department shall ensure that annual payments on
265	multiyear public-private partnership agreements are prioritized
266	ahead of new capacity projects in the development and updating
267	of the tentative work program.
268	(b)  The annual payments are subject to annual
269	appropriation by the Legislature as provided in the General
270	Appropriations Act in support of the first year of the tentative
271	work program.
272	(10)  Prior to entering such agreement where funds are
273	committed from the State Transportation Trust Fund, the project
274	must be prioritized as follows:
275	(a)  The department, in coordination with the local
276	metropolitan planning organization, shall prioritize projects
277	included in the Strategic Intermodal System 10-year and long-
278	range cost feasible plans.
279	(b)  The department, in coordination with the local
280	metropolitan planning organization or local government where
281	there is no metropolitan planning organization, shall prioritize
282	projects, for facilities not on the Strategic Intermodal System,
283	included in the metropolitan planning organization cost feasible
284	transportation improvement plan and long-range transportation
285	plan.
286	(11)  Public-private partnership agreements under this
287	section shall be limited to a term not exceeding 50 years. Upon
288	making written findings that an agreement under this section
289	requires a term in excess of 50 years, the secretary of the
290	department may authorize a term of up to 75 years. Agreements
291	under this section shall not have a term in excess of 75 years
292	unless specifically approved by the Legislature. The department
293	shall identify each new project under this section with a term
294	exceeding 75 years in the transmittal letter that accompanies
295	the submittal of the tentative work program to the Governor and
296	the Legislature in accordance with s. 339.135.
297	(12)  The department shall ensure that no more than 25
298	percent of total federal and state funding in any given year for
299	the State Transportation Trust Fund shall be obligated
300	collectively for all projects under this section.
301	(13)  Notwithstanding s. 338.165, excess tolls from
302	projects under this section shall be used for capacity projects
303	as follows:
304	(a)  If the revenue-producing project is on the State
305	Highway System, notwithstanding s. 339.135(4)(a), any excess
306	toll revenue shall be used for capacity improvements of the
307	State Highway System or up to 50 percent of the project cost on
308	public transit capital improvements authorized under Title 49 of
309	the United States Code and specified in s. 341.051.
310	(b)  If the revenue-producing project is on the county road
311	system, any excess toll revenue shall be used for capacity
312	improvements of state or county roads or transit facilities
313	within the county or counties in which the revenue-producing
314	project is located.
315	(8)  A fixed-guideway transportation system authorized by
316	the department to be wholly or partially within the department's
317	right-of-way pursuant to a lease granted under s. 337.251 may
318	operate at any safe speed.
319	Section 2.  Section 338.165, Florida Statutes, is amended
320	to read:
321	338.165  Continuation of tolls.--
322	(1)  The department, any transportation or expressway
323	authority or, in the absence of an authority, a county or
324	counties may continue to collect the toll on a revenue-producing
325	project after the discharge of any bond indebtedness related to
326	such project and may increase such toll. All tolls so collected
327	shall first be used to pay the annual cost of the operation,
328	maintenance, and improvement of the toll project.
329	(2)  If the revenue-producing project is on the State
330	Highway System, any remaining toll revenue shall be used for the
331	construction, maintenance, or improvement of any road on the
332	State Highway System within the county or counties in which the
333	revenue-producing project is located, except as provided in s.
334	348.0004.
335	(3)  Notwithstanding any other provision of law, the
336	department or any transportation or expressway authority shall,
337	at a minimum, index toll rates on existing toll facilities to
338	the annual Consumer Price Index or similar inflation indicators.
339	Toll rate adjustments for inflation under this subsection may be
340	made no more frequently than once a year and must be made no
341	less frequently than once every 5 years as necessary to
342	accommodate cash toll rate schedules. Toll rates may be
343	increased beyond these limits as directed by bond documents,
344	covenants, or governing body authorization or pursuant to
345	department administrative rule.
346	(4)(3)  Notwithstanding any other law to the contrary,
347	pursuant to s. 11, Art. VII of the State Constitution, and
348	subject to the requirements of subsection (2), the Department of
349	Transportation may request the Division of Bond Finance to issue
350	bonds secured by toll revenues collected on the Alligator Alley,
351	the Sunshine Skyway Bridge, the Beeline-East Expressway, the
352	Navarre Bridge, and the Pinellas Bayway to fund transportation
353	projects located within the county or counties in which the
354	project is located and contained in the adopted work program of
355	the department.
356	(5)(4)  If the revenue-producing project is on the county
357	road system, any remaining toll revenue shall be used for the
358	construction, maintenance, or improvement of any other state or
359	county road within the county or counties in which the revenue-
360	producing project is located, except as provided in s. 348.0004.
361	(6)(5)  Selection of projects on the State Highway System
362	for construction, maintenance, or improvement with toll revenues
363	shall be, with the concurrence of the department, consistent
364	with the Florida Transportation Plan.
365	(7)(6)  Notwithstanding the provisions of subsection (1),
366	and not including high occupancy toll lanes or express lanes, no
367	tolls may be charged for use of an interstate highway where
368	tolls were not charged as of July 1, 1997.
369	(8)(7)  This section does not apply to the turnpike system
370	as defined under the Florida Turnpike Enterprise Law.
371	Section 3.  This act shall take effect July 1, 2007.

CODING: Words stricken are deletions; words underlined are additions.