Florida Senate - 2007                        SENATOR AMENDMENT
    Bill No. CS/CS/HB 985, 2nd Eng.
                        Barcode 885916
                            CHAMBER ACTION
              Senate                               House
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 3         Floor: 1e/RE/3R         .                    
       05/04/2007 09:04 AM         .                    
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11  Senator Baker moved the following amendment to amendment
12  (671544):
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14         Senate Amendment 
15         On page 97, line 11 through page 102, line 14, delete
16  those lines
17  
18  and insert:  
19         (1)  The department may receive or solicit proposals
20  and, with legislative approval as evidenced by approval of the
21  project in the department's work program, enter into
22  agreements with private entities, or consortia thereof, for
23  the building, operation, ownership, or financing of
24  transportation facilities. The department may advance projects
25  programmed in the adopted 5-year work program or projects
26  increasing transportation capacity and greater than $500
27  million in the 10-year Strategic Intermodal Plan using funds
28  provided by public-private partnerships or private entities to
29  be reimbursed from department funds for the project as
30  programmed in the adopted work program. The department shall
31  by rule establish an application fee for the submission of
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Florida Senate - 2007 SENATOR AMENDMENT Bill No. CS/CS/HB 985, 2nd Eng. Barcode 885916 1 unsolicited proposals under this section. The fee must be 2 sufficient to pay the costs of evaluating the proposals. The 3 department may engage the services of private consultants to 4 assist in the evaluation. Before approval, the department must 5 determine that the proposed project: 6 (a) Is in the public's best interest; 7 (b) Would not require state funds to be used unless 8 the project is on the State Highway System; and 9 (c) Would have adequate safeguards in place to ensure 10 that no additional costs or service disruptions would be 11 realized by the traveling public and residents citizens of the 12 state in the event of default or cancellation of the agreement 13 by the department;. 14 (d) Would have adequate safeguards in place to ensure 15 that the department or the private entity has the opportunity 16 to add capacity to the proposed project and other 17 transportation facilities serving similar origins and 18 destinations; and 19 (e) Would be owned by the department upon completion 20 or termination of the agreement. 21 22 The department shall ensure that all reasonable costs to the 23 state, related to transportation facilities that are not part 24 of the State Highway System, are borne by the private entity. 25 The department shall also ensure that all reasonable costs to 26 the state and substantially affected local governments and 27 utilities, related to the private transportation facility, are 28 borne by the private entity for transportation facilities that 29 are owned by private entities. For projects on the State 30 Highway System, the department may use state resources to 31 participate in funding and financing the project as provided 2 2:18 PM 05/03/07 h0985.20tr.ppp
Florida Senate - 2007 SENATOR AMENDMENT Bill No. CS/CS/HB 985, 2nd Eng. Barcode 885916 1 for under the department's enabling legislation. 2 (2) Agreements entered into pursuant to this section 3 may authorize the private entity to impose tolls or fares for 4 the use of the facility. The following provisions shall apply 5 to such agreements: However, the amount and use of toll or 6 fare revenues shall be regulated by the department to avoid 7 unreasonable costs to users of the facility. 8 (a) With the exception of the Florida Turnpike System, 9 the department may lease existing toll facilities through 10 public-private partnerships. The public-private partnership 11 agreement must ensure that the transportation facility is 12 properly operated, maintained, and renewed in accordance with 13 department standards. 14 (b) The department may develop new toll facilities or 15 increase capacity on existing toll facilities through 16 public-private partnerships. The public-private partnership 17 agreement must ensure that the toll facility is properly 18 operated, maintained, and renewed in accordance with 19 department standards. 20 (c) Any toll revenues shall be regulated by the 21 department pursuant to s. 338.165(3). The regulations 22 governing the future increase of toll or fare revenues shall 23 be included in the public-private partnership agreement. 24 (d) The department shall provide the analysis required 25 in subsection (6)(e)2. of this section to the Legislative 26 Budget Commission created pursuant to s. 11.90 for review and 27 approval prior to awarding a contract on a lease of an 28 existing toll facility. 29 (e) The department shall include provisions in the 30 public-private partnership agreement that ensure a negotiated 31 portion of revenues from tolled or fare generating projects 3 2:18 PM 05/03/07 h0985.20tr.ppp
Florida Senate - 2007 SENATOR AMENDMENT Bill No. CS/CS/HB 985, 2nd Eng. Barcode 885916 1 are returned to the department over the life of the 2 public-private partnership agreement. In the case of a lease 3 of an existing toll facility, the department shall receive a 4 portion of funds upon closing on the agreements and shall also 5 include provisions in the agreement to receive payment of a 6 portion of excess revenues over the life of the public-private 7 partnership. 8 (f) The private entity shall provide an investment 9 grade traffic and revenue study prepared by an internationally 10 recognized traffic and revenue expert that is accepted by the 11 national bond rating agencies. The private entity shall also 12 provide a finance plan that identifies the project cost, 13 revenues by source, financing, major assumptions, internal 14 rate of return on private investments, and whether any 15 government funds are assumed to deliver a cost feasible 16 project, and a total cash flow analysis beginning with 17 implementation of the project and extending for the term of 18 the agreement. 19 (3) Each private transportation facility constructed 20 pursuant to this section shall comply with all requirements of 21 federal, state, and local laws; state, regional, and local 22 comprehensive plans; department rules, policies, procedures, 23 and standards for transportation facilities; and any other 24 conditions which the department determines to be in the 25 public's best interest. 26 (4) The department may exercise any power possessed by 27 it, including eminent domain, with respect to the development 28 and construction of state transportation projects to 29 facilitate the development and construction of transportation 30 projects pursuant to this section. The department may provide 31 services to the private entity. Agreements for maintenance, 4 2:18 PM 05/03/07 h0985.20tr.ppp
Florida Senate - 2007 SENATOR AMENDMENT Bill No. CS/CS/HB 985, 2nd Eng. Barcode 885916 1 law enforcement, and other services entered into pursuant to 2 this section shall provide for full reimbursement for services 3 rendered for projects not on the State Highway System. 4 (5) Except as herein provided, the provisions of this 5 section are not intended to amend existing laws by granting 6 additional powers to, or further restricting, local 7 governmental entities from regulating and entering into 8 cooperative arrangements with the private sector for the 9 planning, construction, and operation of transportation 10 facilities. 11 (6) The procurement of public-private partnerships by 12 the department shall follow the provisions of this section. 13 Sections 337.025, 337.11, 337.14, 337.141, 337.145, 337.175, 14 337.18, 337.185, 337.19, 337.221, and 337.251 shall not apply 15 to procurements under this section unless a provision is 16 included in the procurement documents. The department shall 17 ensure that generally accepted business practices for 18 exemptions provided by this subsection are part of the 19 procurement process or are included in the public-private 20 partnership agreement. 21 (a) The department may request proposals from private 22 entities for public-private transportation projects or, if the 23 department receives an unsolicited proposal, the department 24 shall publish a notice in the Florida Administrative Weekly 25 and a newspaper of general circulation at least once a week 26 for 2 weeks stating that the department has received the 27 proposal and will accept, for 120 60 days after the initial 28 date of publication, other proposals for the same project 29 purpose. A copy of the notice must be mailed to each local 30 government in the affected area. 31 (b) Public-private partnerships shall be qualified by 5 2:18 PM 05/03/07 h0985.20tr.ppp
Florida Senate - 2007 SENATOR AMENDMENT Bill No. CS/CS/HB 985, 2nd Eng. Barcode 885916 1 the department as part of the procurement process as outlined 2 in the procurement documents, provided such process ensures 3 that the private firm meets at least the minimum department 4 standards for qualification in department rule for 5 professional engineering services and road and bridge 6 contracting prior to submitting a proposal under the 7 procurement. 8 (c) The department shall ensure that procurement 9 documents include provisions for performance of the private 10 entity and payment of subcontractors, including, but not 11 limited to, surety bonds, letters of credit, parent company 12 guarantees, and lender and equity partner guarantees. The 13 department shall balance the structure of the security package 14 for the public-private partnership that ensures performance 15 and payment of subcontractors with the cost of the security to 16 ensure the most efficient pricing. 17 (d) After the public notification period has expired, 18 the department shall rank the proposals in order of 19 preference. In ranking the proposals, the department may 20 consider factors that include, including, but are not limited 21 to, professional qualifications, general business terms, 22 innovative engineering or cost-reduction terms, finance plans, 23 and the need for state funds to deliver the project. If the 24 department is not satisfied with the results of the 25 negotiations, the department may, at its sole discretion, 26 terminate negotiations with the proposer. If these 27 negotiations are unsuccessful, the department may go to the 28 second-ranked and lower-ranked firms, in order, using this 29 same procedure. If only one proposal is received, the 30 department may negotiate in good faith and, if the department 31 is not satisfied with the results of the negotiations, the 6 2:18 PM 05/03/07 h0985.20tr.ppp
Florida Senate - 2007 SENATOR AMENDMENT Bill No. CS/CS/HB 985, 2nd Eng. Barcode 885916 1 department may, at its sole discretion, terminate negotiations 2 with the proposer. Notwithstanding this subsection, the 3 department may, at its discretion, reject all proposals at any 4 point in the process up to completion of a contract with the 5 proposer. 6 (e) The department shall provide an independent 7 analysis of the proposed public-private partnership that 8 demonstrates the cost-effectiveness and overall public benefit 9 at the following times: 10 1. Prior to moving forward with the procurement; and 11 2. If the procurement moves forward, prior to awarding 12 the contract. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 7 2:18 PM 05/03/07 h0985.20tr.ppp