CS/HB 1291

1
A bill to be entitled
2An act relating to public-private partnership
3infrastructure projects; creating s. 287.09475, F.S.;
4providing legislative findings and intent; defining terms;
5providing for the Department of Management Services and a
6state agency or local government to receive or solicit
7proposals to enter into a public works infrastructure
8project agreement with a private entity, or a consortium
9of private entities, to build, operate, or finance a
10public works infrastructure project; providing criteria
11for the selection of the project and the private entity
12that will enter into a partnership agreement with the
13participating governmental unit to build or operate the
14project; requiring all reasonable costs to the state
15related to infrastructure project and not part of the
16governmental unit's work plan to be borne by the private
17entity; authorizing the private entity to impose user fees
18for the use of the infrastructure project by the public;
19setting forth financing and revenue criteria for the
20infrastructure project agreement; requiring that each
21infrastructure facility be in compliance with all
22applicable federal, state, and local laws, construction
23standards, and performance standards; authorizing each
24participating governmental unit to exercise any lawful
25power possessed by it to aid in the development and
26construction of the infrastructure project; providing
27procedures for requesting and considering proposals;
28authorizing the department and a participating
29governmental unit to use innovative financing techniques
30for the infrastructure project; requiring the department
31to compile a summary of new projects each year; limiting
32the term of the infrastructure project agreement to a
33specified number of years; providing that the head of the
34participating governmental unit may authorize an increase
35in the term of a project by 25 years; prohibiting public-
36private infrastructure project agreements with private
37entities that engage in or benefit from dealings with any
38terrorist state; providing an effective date.
39
40Be It Enacted by the Legislature of the State of Florida:
41
42     Section 1.  Section 287.09475, Florida Statutes, is created
43to read:
44     287.09475  Public-private partnership infrastructure
45projects.--
46     (1)  The Legislature finds and declares that there is a
47public need for the rapid construction of public works
48infrastructure projects for the purpose of improving the
49economic, environmental, social, and cultural infrastructure of
50this state, and that it is in the public interest to provide for
51the construction or expansion of public works infrastructure
52projects.
53     (2)  As used in this section, the term:
54     (a)  "Department" means the Department of Management
55Services.
56     (b)  "Government" means the state or a political
57subdivision of the state.
58     (c)  "Infrastructure project" or "public works
59infrastructure project" means a project to construct, operate,
60or maintain the basic public works of this state, including
61telecommunications, cable television, electricity, and broadband
62technology infrastructure, infrastructure for the transportation
63of gas, oil, or crude oil products; solid waste, waste water,
64and storm water infrastructure not connected with highway
65drainage; or other similar projects. The term does not include a
66transportation facility governed by s. 334.30.
67     (d)  "Maintain" includes ordinary repair, rehabilitation,
68capital maintenance, maintenance replacement, and any other
69categories of maintenance on an infrastructure project as
70designated by the government.
71     (e)  "Operate" or "operation" means an action to construct,
72maintain, rehabilitate, improve, equip, or modify an
73infrastructure project.
74     (f)  "Private entity" means a person who enters into a
75public-private infrastructure project agreement with a
76participating governmental unit.
77     (g)  "Participating governmental unit" means the
78governmental unit that enters into a public-private
79infrastructure project agreement with a private entity.
80     (h)  "Public-private infrastructure project agreement"
81means the document representing the agreement between a private
82entity and a participating governmental unit. The agreement must
83include:
84     1.  Acceptance by the participating governmental unit of a
85private contribution, including a money payment, in exchange for
86allowing the private entity to construct, operate, manage, or
87maintain a public works infrastructure project or services
88connected with an infrastructure project;
89     2.  The sharing of resources by the participating
90governmental unit with a private entity and the means of
91delivering a project or service to the public; and
92     3.  Cooperation in researching, developing, and
93implementing projects or services for an infrastructure project.
94     (i)  "User fee" means the rate, toll, fee, or other charges
95imposed on the public by a private entity for use of all or part
96of an infrastructure project.
97     (3)(a)  In cooperation with the participating government,
98the department and a participating governmental unit may receive
99or solicit proposals and enter into a public-private
100infrastructure project agreement with a private entity, or a
101consortium of private entities, to build, operate, manage,
102maintain, or finance a public works infrastructure project. The
103participating governmental unit may advance a project programmed
104in the governmental unit's adopted work program or its 10-year
105plan. The project may use funds provided by the private entity,
106which shall be reimbursed from user fees derived from the
107project as programmed in the adopted work program.
108     (b)  The department shall establish an application fee for
109the submission of unsolicited proposals under this section. The
110fee may not exceed the cost of evaluating the proposal.
111     (c)  The department and a participating governmental unit
112may engage the services of private consultants to assist in the
113evaluation.
114     (d)  Before approving a project, the department and the
115participating governmental unit must determine whether the
116proposed infrastructure project:
117     1.  Is in the public interest;
118     2.  Would have adequate safeguards in place to ensure that
119no additional costs or service disruptions would affect the
120public and residents of the state if the private entity defaults
121or if the participating governmental unit cancels the project;
122     3.  Would have adequate safeguards in place to ensure that
123the participating governmental unit or the private entity has
124the opportunity to add capacity to the proposed project and
125other infrastructure projects serving similar goals and
126objectives; and
127     4.  Would be owned by the participating governmental unit
128upon completion or termination of the public-private
129infrastructure project agreement.
130
131The department and participating governmental unit shall ensure
132that all reasonable costs to the state related to infrastructure
133projects that are not part of a participating governmental
134unit's work plan are borne by the private entity. The department
135and the participating governmental unit shall also ensure that
136all reasonable costs to the state and substantially affected
137local governments and utilities related to the infrastructure
138project are borne by the private entity for infrastructure
139projects that are owned by private entities.
140     (4)  If a public-private infrastructure project agreement
141authorizes the private entity to impose user fees:
142     (a)  The participating governmental unit may lease an
143existing public works facility to a private entity through a
144public-private partnership. The public-private partnership
145infrastructure project agreement must ensure that the
146infrastructure facility is properly operated, maintained, and
147renewed in accordance with the participating governmental unit's
148standards.
149     (b)  The participating governmental unit may develop new
150infrastructure projects or increase capacity of existing
151projects through public-private partnerships. The public-private
152partnership infrastructure project agreement must ensure that
153the public works infrastructure project is properly operated and
154maintained in accordance with applicable standards.
155     (c)  Revenue from user fees must be regulated by the
156participating governmental unit. The regulations governing
157future increases in fees or rates must be included in the
158public-private partnership infrastructure project agreement.
159     (d)  The public-private partnership infrastructure project
160agreement must include provisions that ensure that a portion of
161revenue from projects that generate revenue is returned to the
162participating governmental unit over the term of the agreement.
163If an infrastructure project agreement includes the lease of an
164existing public works facility, the participating governmental
165unit must receive a portion of the funds upon closing the
166agreement, with the remainder paid from excess revenue that
167accrues during the term of the public-private infrastructure
168project agreement.
169     (e)  The private entity must provide to the department an
170investment grade usage and revenue study prepared by an
171internationally recognized public works revenue expert who is
172recognized by the national bond rating agencies. The private
173entity must also provide a financing plan that identifies the
174project costs; lists the projected revenue by source, financing,
175major assumptions, and internal rate of return on private
176investments; specifies whether any government funds are
177necessary in order to deliver a cost-feasible project; and
178provides a total cash flow analysis beginning with
179implementation of the project and extending for the term of the
180public-private infrastructure project agreement.
181     (5)  Each infrastructure project constructed pursuant to
182this section shall be constructed in compliance with all
183requirements of federal, state, and local laws; state, regional,
184and local comprehensive plans; department rules, policies,
185procedures, and standards for infrastructure public works
186projects; and any other conditions that a participating
187governmental unit determines to be in the public interest.
188     (6)  The participating governmental unit may exercise its
189powers with respect to the development and construction of state
190and local public works infrastructure projects, including
191eminent domain, to facilitate the development and construction
192of infrastructure projects under this section. The department
193and a participating governmental unit may provide services to
194the private entity, but the public-private infrastructure
195project agreement must provide for full reimbursement for these
196services.
197     (7)  Except as otherwise provided in this section, this
198section does not grant additional powers to, or further
199restrict, local governmental entities from regulating and
200entering into cooperative arrangements with private entities for
201the planning, construction, and operation of infrastructure
202projects.
203     (8)  Procurement conducted by the private entity, the
204department, and participating governmental units shall adhere to
205the requirements of this subsection. Generally accepted business
206practices must be part of the procurement process or included in
207the public-private partnership infrastructure project agreement.
208     (a)  The department and participating governmental unit may
209request proposals from private entities for infrastructure
210projects or, if the department receives an unsolicited proposal,
211the department shall publish a notice in the Florida
212Administrative Weekly and a newspaper of general circulation at
213least once a week for 2 weeks stating that the department has
214received the proposal and will accept, for 120 days after the
215initial date of publication, other proposals for the same
216project purpose. A copy of the notice must be mailed to each
217local government in the affected area.
218     (b)  A private entity must be qualified by the department
219as part of the procurement process, which must ensure that the
220private entity meets at least the minimum qualifying standards
221of the participating governmental unit for providing
222professional services and constructing infrastructure projects.
223     (c)  Procurement documents for construction under an
224infrastructure project must include provisions for surety bonds
225as required in s. 255.05.
226     (d)  After the public notification period has expired, the
227department and participating governmental unit shall rank the
228proposals in order of preference. In ranking the proposals, the
229department and participating governmental unit may consider
230factors that include, but are not limited to, professional
231qualifications, general business terms, innovative engineering
232or cost-reduction terms, financing plans, and the need for state
233funds to deliver the infrastructure project. If the department
234and participating governmental unit are not satisfied with the
235results of the negotiations, the department and participating
236governmental unit may terminate negotiations with the highest-
237ranked proposal and may consider the second-ranked and lower-
238ranked proposals, in order, using the same procedure. If only
239one proposal is received, the department and participating
240governmental unit may negotiate in good faith and, if the
241department and participating governmental unit are not satisfied
242with the results of the negotiations, the department and
243participating governmental unit may terminate negotiations with
244the proposer. Notwithstanding this subsection, the department
245and a participating governmental unit may reject all proposals
246at any point in the process up to completion of a contract with
247the proposer.
248     (e)  The department and a participating governmental unit
249must provide an independent analysis of the proposed public-
250private infrastructure project agreement which demonstrates its
251cost-effectiveness and overall public benefit before moving
252forward with procurement and, if the procurement moves forward,
253before awarding the contract.
254     (9)  The department and a participating governmental unit
255may use innovative finance techniques associated with a public-
256private partnership under this section, including, but not
257limited to, federal loans as provided in 23 and 49 C.F.R.,
258commercial bank loans, and hedges against inflation from
259commercial banks or other private sources.
260     (10)  The department and a participating governmental unit
261may enter into a public-private infrastructure project agreement
262that includes extended terms providing annual payments for
263performance based on the availability of services or the opening
264of a facility to the public. In addition to other provisions in
265this section, the following apply:
266     (a)  The annual payments under a public works
267infrastructure project agreement must be included in the
268department's and participating governmental unit's tentative
269work program and the long-range infrastructure plan for the
270applicable metropolitan planning organization. The department
271and participating governmental unit shall ensure that annual
272payments on multiyear public-private infrastructure project
273agreements are prioritized ahead of new capacity projects in the
274development and updating of the tentative work infrastructure
275project.
276     (b)  The annual payments must be subject to annual
277appropriation by the Legislature as specified in the General
278Appropriations Act which provides the initial funding support
279for the program.
280     (11)  The department shall compile a summary of new public
281works infrastructure projects each year. This summary shall
282include identification of planned funding beyond a 5-year
283tentative work program and the public involvement process for
284the project, including discussion of the use of future funds to
285deliver the project.
286     (12)  A public-private infrastructure project agreement
287under this section is limited to a term not exceeding 50 years.
288Upon making written findings that a public-private
289infrastructure project agreement requires a term in excess of 50
290years, the head of the participating governmental unit may
291authorize a term of up to 75 years. Infrastructure project
292agreements under this section may not have a term in excess of
29375 years unless specifically approved by the Legislature. The
294department and the participating governmental unit shall
295identify new projects having a term exceeding 75 years in the
296transmittal letter that accompanies the submission of the
297tentative work program to the Governor and the Legislature.
298     (13)  The department or a participating governmental unit
299may not receive or solicit proposals from, nor enter into a
300public-private infrastructure project agreement with, any
301private entity or consortium of private entities to build,
302operate, manage, maintain, or finance a public works
303infrastructure project under this section if the private entity
304or consortium of private entities engages in or in any way
305benefits from dealings with, or activities related to or
306involving, a terrorist state. For the purposes of this section,
307"terrorist state" is defined as any state, country, or nation
308designated by the United States Department of State as a state
309sponsor of terrorism.
310     Section 2.  This act shall take effect July 1, 2009.


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