Florida Senate - 2012                                     SB 576
       
       
       
       By Senator Bennett
       
       
       
       
       21-00626-12                                            2012576__
    1                        A bill to be entitled                      
    2         An act relating to public-private partnerships;
    3         creating s. 287.05712, F.S.; establishing the Florida
    4         Public-Private Partnership Act; providing definitions;
    5         providing legislative findings and intent; providing
    6         for private entities to develop and operate public
    7         purpose projects; requiring public entities to adopt
    8         and make publicly available specified guidelines for
    9         public-private agreements; providing requirements and
   10         procedures for procurement, consideration, and
   11         approval of projects; providing an exemption from the
   12         Consultant’s Competitive Negotiation Act and any
   13         interpretations, regulations, or guidelines of the
   14         Department of Management Services; providing
   15         requirements and procedures for interim and
   16         comprehensive agreements between private and public
   17         entities; providing for affected local governments to
   18         comment on proposed projects; providing powers and
   19         duties for private entities; providing for material
   20         default and remedies with respect to projects and
   21         agreements; providing for federal, state, and local
   22         financing; providing sovereign immunity for public
   23         entities with respect to specified project activities;
   24         providing for construction and effect of the act;
   25         establishing the Public-Private Partnership Advisory
   26         Commission; providing commission duties; providing for
   27         appointment and reimbursement of commission members;
   28         requiring the commission to submit annual reports to
   29         the Governor and the Legislature; providing an
   30         effective date.
   31  
   32  Be It Enacted by the Legislature of the State of Florida:
   33  
   34         Section 1. Section 287.05712, Florida Statutes, is created
   35  to read:
   36         287.05712 Florida Public-Private Partnership Act.-
   37         (1) DEFINITIONS.—As used in this section, the term:
   38         (a) “Affected local jurisdiction” means any county, city,
   39  or town in which all or a portion of a qualifying project is
   40  located.
   41         (b) “Appropriating body” means the body responsible for
   42  appropriating or authorizing funding to pay for a qualifying
   43  project.
   44         (c) “Comprehensive agreement” means the comprehensive
   45  agreement between the private entity and the responsible public
   46  entity.
   47         (d) “Develop” or “development” means to plan, design,
   48  develop, finance, lease, acquire, install, construct, or expand.
   49         (e) “Interim agreement” means an agreement between a
   50  private entity and a responsible public entity that provides for
   51  phasing of the development or operation of a qualifying project.
   52  Such phases may include, but are not limited to, design,
   53  planning, engineering, environmental analysis and mitigation,
   54  financial and revenue analysis, or any other phase of the
   55  project that constitutes activity on any part of the qualifying
   56  project.
   57         (f) “Lease payment” means any form of payment, including a
   58  land lease, by a public entity to the private entity for the use
   59  of a qualifying project.
   60         (g) “Material default” means any default by the private
   61  entity in the performance of its duties that jeopardizes
   62  adequate service to the public from a qualifying project.
   63         (h) “Operate” means to finance, maintain, improve, equip,
   64  modify, repair, or operate.
   65         (i) “Private entity” means any natural person, corporation,
   66  general partnership, limited liability company, limited
   67  partnership, joint venture, business trust, public benefit
   68  corporation, nonprofit entity, or other private business entity.
   69         (j) “Proposal” means a detailed proposal accepted by a
   70  responsible public entity beyond a conceptual level of review
   71  and at which time issues such as fixing costs, payment
   72  schedules, financing, deliverables, and project schedule are
   73  defined.
   74         (k) “Public entity” means the state and any agency or
   75  authority thereof; any county, city, or town and any other
   76  political subdivision of the state; any public body politic and
   77  corporate; or any regional entity that serves a public purpose.
   78         (l) “Qualifying project” means any:
   79         1. Public-purpose facility or project, including, but not
   80  limited to, a public school building and any functionally
   81  related and subordinate facility, including any stadium or other
   82  facility primarily used for school events.
   83         2. Building or facility that meets a public purpose and is
   84  developed or operated by or for any public entity.
   85         3. Improvements, including equipment, of buildings to be
   86  principally used by a public entity.
   87         4. Water or wastewater management facility and other
   88  related infrastructure.
   89         (m) “Responsible public entity” means an agency or
   90  institution of the state that has the authority to develop or
   91  operate a qualifying project.
   92         (n) “Revenues” means all revenues, income, earnings, user
   93  fees, lease payments, or other service payments relating to the
   94  development or operation of a qualifying project, including, but
   95  not limited to, money received as grants or otherwise from the
   96  Federal Government, from any public entity, or from any agency
   97  or instrumentality of the foregoing in aid of a qualifying
   98  project.
   99         (o) “Service contract” means a contract entered into
  100  between a public entity and the private entity.
  101         (p) “Service payments” means payments to the private entity
  102  of a qualifying project pursuant to a service contract.
  103         (q) “User fees” means the rates, tolls, fees, or other
  104  charges imposed by the private entity of a qualifying project
  105  for use of all or a portion of such qualifying project pursuant
  106  to a comprehensive agreement.
  107         (r) “Water or wastewater management facility” means a
  108  project for treatment, storage, disposal, or distribution of
  109  water or wastewater.
  110         (2) LEGISLATIVE FINDINGS AND INTENT.—
  111         (a) The Legislature finds that:
  112         1. There is a public need for timely and cost-effective
  113  acquisition, design, construction, improvement, renovation,
  114  expansion, equipping, maintenance, operation, implementation, or
  115  installation of public projects, including educational
  116  facilities, water or wastewater management facilities and
  117  infrastructure, technology infrastructure, and any other public
  118  infrastructure and government facilities within the state that
  119  serve a public need and purpose, and that such public need may
  120  not be wholly satisfied by existing methods of procurement.
  121         2. There are inadequate resources to develop new
  122  educational facilities, water or wastewater management
  123  facilities and infrastructure, technology infrastructure and
  124  other public infrastructure and government facilities for the
  125  benefit of citizens of the state, and it has been demonstrated
  126  that public-private partnerships can meet these needs by
  127  improving the schedule for delivery, lowering the cost, and
  128  providing other benefits to the public.
  129         3. There are state and federal tax incentives that promote
  130  partnerships between public and private entities to operate and
  131  develop qualifying projects.
  132         4. An action under subsection (4) serves the public purpose
  133  of this section if such action facilitates the timely
  134  development or operation of qualifying projects.
  135         (b) The Legislature declares it is the intent of this
  136  section to encourage investment in the state by private
  137  entities, to facilitate various bond financing mechanisms,
  138  private capital, and other funding sources for the development
  139  and operation of qualifying projects, including expansion and
  140  acceleration of such financing to meet the public need, and to
  141  provide the greatest possible flexibility to public and private
  142  entities to contract for the provision of public services.
  143         (3) ADOPTION OF GUIDELINES BY RESPONSIBLE PUBLIC ENTITIES.—
  144         (a) A responsible public entity shall, before requesting or
  145  considering a proposal for a qualifying project, adopt and make
  146  publicly available guidelines that are sufficient to enable the
  147  responsible public entity to comply with this section. Such
  148  guidelines shall be reasonable, encourage competition, and guide
  149  the selection of projects under the purview of the responsible
  150  public entity.
  151         (b) For a responsible public entity that is an agency or
  152  institution of the state, the guidelines shall include, but are
  153  not limited to:
  154         1. Opportunities for competition through public notice and
  155  availability of representatives of the responsible public entity
  156  to meet with private entities considering a proposal.
  157         2. Reasonable criteria for choosing among competing
  158  proposals.
  159         3. Suggested timelines for selecting proposals and
  160  negotiating an interim or comprehensive agreement.
  161         4. Authorization for accelerated selection and review and
  162  documentation timelines for proposals involving a qualifying
  163  project that the responsible public entity deems a priority.
  164         5. Financial review and analysis procedures that shall
  165  include, at a minimum, a cost-benefit analysis, an assessment of
  166  opportunity cost, and consideration of the results of all
  167  studies and analyses related to the proposed qualifying project.
  168  These procedures shall also include requirements for the
  169  disclosure of such analysis to the appropriating body for review
  170  prior to execution of an interim or comprehensive agreement.
  171         6. Consideration of the nonfinancial benefits of a proposed
  172  qualifying project.
  173         7. A mechanism for the appropriating body to review a
  174  proposed interim or comprehensive agreement prior to execution.
  175         8. Establishment of criteria for the creation of and the
  176  responsibilities of a public-private partnership oversight
  177  committee with members representing the responsible public
  178  entity and the appropriating body. Such criteria shall include
  179  the scope, costs, and duration of the qualifying project, as
  180  well as whether the project involves or impacts multiple public
  181  entities. The oversight committee, if formed, shall be an
  182  advisory committee to review the terms of any proposed interim
  183  or comprehensive agreement.
  184         9. Analysis of the adequacy of the information released
  185  when seeking competing proposals and providing for the
  186  enhancement of that information, if deemed necessary, to
  187  encourage competition.
  188         10. Establishment of criteria, key decision points, and
  189  approvals required to ensure that the responsible public entity
  190  considers the extent of competition before selecting proposals
  191  and negotiating an interim or comprehensive agreement.
  192         11. The posting and publishing of public notice of a
  193  private entity’s request for approval of a qualifying project,
  194  including:
  195         a. Specific information and documentation to be released
  196  regarding the nature, timing, and scope of the qualifying
  197  project.
  198         b. A reasonable time period as determined by the
  199  responsible public entity to encourage competition and public
  200  private partnerships in accordance with the goals of this
  201  section, such reasonable period to be at least 45 days, during
  202  which time the responsible public entity shall receive competing
  203  proposals.
  204         c. A requirement for advertising the public notice and
  205  posting a notice on the Internet.
  206         (c) For a responsible public entity that is not an agency
  207  or institution of the state, the guidelines may include the
  208  provisions set forth in this subsection at the discretion of the
  209  public entity. However, the guidelines shall include:
  210         1. A requirement that the responsible public entity engage
  211  the services of qualified professionals, which may include an
  212  architect, professional engineer, or certified public
  213  accountant, not otherwise employed by the responsible public
  214  entity, to provide an independent analysis regarding the
  215  specifics, advantages, disadvantages, and the long and short
  216  term costs of any request by a private entity for approval of a
  217  qualifying project unless the governing body of the responsible
  218  public entity determines that such analysis shall be performed
  219  by employees of the responsible public entity.
  220         2. A mechanism for the appropriating body to review a
  221  proposed interim or comprehensive agreement prior to execution.
  222         (4) PROCUREMENT PROCEDURES FOR RESPONSIBLE PUBLIC
  223  ENTITIES.—The Consultant’s Competitive Negotiation Act under s.
  224  287.055 and any interpretations, regulations, or guidelines of
  225  the Department of Management Services do not apply to this
  226  section. However, a responsible public entity may enter into an
  227  interim or comprehensive agreement as follows:
  228         (a) A responsible public entity shall not be required to
  229  select the proposal with the lowest bid offer, but may consider
  230  price as one factor in evaluating the proposals received. Other
  231  factors that may be considered include:
  232         1. The proposed costs of the qualifying facility.
  233         2. The general reputation, industry experience, and
  234  financial capacity of the private entity.
  235         3. The proposed design of the qualifying project.
  236         4. The eligibility of the facility for accelerated
  237  selection, review, and documentation timelines under the
  238  responsible public entity’s compliance with a minority business
  239  enterprise participation plan or good faith effort to comply
  240  with the goals of such plan.
  241         5. The private entity’s plans to employ local contractors
  242  and residents.
  243         6. Other criteria that the responsible public entity deems
  244  appropriate.
  245         (b) A responsible public entity shall proceed in accordance
  246  with the guidelines adopted under subsection (3) unless it
  247  determines that proceeding in accordance with the guidelines is
  248  likely to be advantageous to the responsible public entity and
  249  the public, based on:
  250         1. The probable scope, complexity, or priority of the
  251  project.
  252         2. Risk sharing, including guaranteed cost or completion
  253  guarantees, added value or debt, or equity investments proposed
  254  by the private entity.
  255         3. An increase in funding, dedicated revenue source, or
  256  other economic benefit that would not otherwise be available.
  257  
  258  When the responsible public entity determines to proceed
  259  according to the guidelines adopted by it pursuant to subsection
  260  (3), it shall state the reasons for its determination in
  261  writing.
  262         (c) A responsible public entity shall not proceed to
  263  consider any request by a private entity for approval of a
  264  qualifying project until the responsible public entity has
  265  adopted and made publicly available guidelines that are
  266  sufficient to enable the responsible public entity to comply
  267  with this section.
  268         (d) A responsible public entity that is a school board or a
  269  county, city, or town may enter into an interim or comprehensive
  270  agreement under this section only with the approval of the local
  271  governing body.
  272         (5) CONSIDERATION AND APPROVAL OF QUALIFYING PROJECTS.—
  273         (a) A responsible public entity may request proposals or
  274  invite bids from private entities for the development or
  275  operation of qualifying projects pursuant to the public notice
  276  and procurement provisions of this section. A private entity may
  277  request the approval of the responsible public entity for a
  278  qualifying project.
  279         (b) A request by a private entity for approval of a
  280  qualifying project shall be accompanied by the following
  281  material and information unless waived by the responsible public
  282  entity:
  283         1. A topographic map with a scale of 1:2,000 or other
  284  appropriate scale indicating the location of the qualifying
  285  project.
  286         2. A description of the qualifying project, including the
  287  conceptual design of such facility or facilities or a conceptual
  288  plan for the provision of services, and a schedule for the
  289  initiation of and completion of the qualifying project to
  290  include the proposed major responsibilities and timeline for
  291  activities to be performed by both the public and private
  292  entity.
  293         3. A statement setting forth the method by which the
  294  private entity proposes to secure any necessary property
  295  interests required for the qualifying project.
  296         4. Information relating to the current plans for
  297  development of facilities or technology infrastructure to be
  298  used by a public entity that is similar to the qualifying
  299  project being proposed by the private entity, if any, of each
  300  affected local jurisdiction.
  301         5. A list of all permits and approvals required for the
  302  qualifying project from local, state, or federal agencies and a
  303  projected schedule for obtaining such permits and approvals.
  304         6. A list of public water or wastewater management
  305  facilities, if any, that will be crossed by the qualifying
  306  project and a statement of the plans of the private entity to
  307  accommodate such crossings.
  308         7. A statement setting forth the private entity’s general
  309  plans for financing the qualifying project, including the
  310  sources of the private entity’s funds and identification of any
  311  dedicated revenue source or proposed debt or equity investment
  312  on the behalf of the private entity.
  313         8. The names and addresses of the persons who may be
  314  contacted for further information concerning the request.
  315         9. User fees, lease payments, and other service payment
  316  over the term of an interim or comprehensive agreement and the
  317  methodology and circumstances for changes to such user fees,
  318  lease payments, and other service payments over time.
  319         10. Additional material and information as the responsible
  320  public entity may reasonably request.
  321         (c) Upon receipt of a proposal to develop or operate a
  322  qualifying project, the responsible public entity shall
  323  determine whether to accept the proposal for consideration. The
  324  responsible public entity may reject any proposal initiated by a
  325  private entity at any time. If the responsible public entity
  326  determines not to accept the proposal for consideration, the
  327  responsible public entity shall return the proposal to the
  328  private entity, including all fees and accompanying
  329  documentation.
  330         (d) The responsible public entity may approve the
  331  development or operation of an education facility, a water or
  332  wastewater management facility and related infrastructure,
  333  technology infrastructure or other public infrastructure, or a
  334  government facility needed by a public entity as a qualifying
  335  project, or the design or equipping of a qualifying project so
  336  developed or operated, if:
  337         1. There is a public need for or benefit derived from a
  338  project of the type the private entity proposes as a qualifying
  339  project.
  340         2. The estimated cost of the qualifying project is
  341  reasonable in relation to similar facilities.
  342         3. The private entity’s plans will result in the timely
  343  acquisition, design, construction, improvement, renovation,
  344  expansion, equipping, maintenance, or operation of the
  345  qualifying project.
  346         (e) In evaluating any request, the responsible public
  347  entity may rely upon internal staff reports prepared by
  348  personnel familiar with the operation of similar facilities or
  349  the advice of external advisors or consultants having relevant
  350  experience.
  351         (f) The responsible public entity may charge a reasonable
  352  fee to cover the costs of processing, reviewing, and evaluating
  353  the request, including, but not limited to, reasonable attorney
  354  fees and fees for financial, technical, and other necessary
  355  advisors or consultants.
  356         (g) Upon approval of a qualifying project, the responsible
  357  public entity shall establish a date for the commencement of
  358  activities related to the qualifying project. The responsible
  359  public entity may extend such date.
  360         (h) Approval of a qualifying project by the responsible
  361  public entity is subject to entering into a comprehensive
  362  agreement with the private entity.
  363         (6) INTERIM AGREEMENT.—Before or in connection with the
  364  negotiation of a comprehensive agreement, the responsible public
  365  entity may enter into an interim agreement with the private
  366  entity proposing the development or operation of the qualifying
  367  project. The interim agreement may:
  368         (a) Permit the private entity to commence activities for
  369  which it may be compensated related to the proposed qualifying
  370  project, including, but not limited to, project planning and
  371  development, design and engineering, environmental analysis and
  372  mitigation, survey, and ascertaining the availability of
  373  financing for the proposed facility or facilities.
  374         (b) Establish the process and timing of the negotiation of
  375  the comprehensive agreement.
  376         (c) Contain any other provisions related to any aspect of
  377  the development or operation of a qualifying project that the
  378  responsible public entity and the private entity deem
  379  appropriate.
  380         (7) COMPREHENSIVE AGREEMENT.—
  381         (a) Before developing or operating the qualifying project,
  382  the private entity shall enter into a comprehensive agreement
  383  with the responsible public entity. The comprehensive agreement
  384  shall provide for:
  385         1. Delivery of maintenance, performance, and payment bonds
  386  and letters of credit in connection with the development or
  387  operation of the qualifying project, in the forms and amounts
  388  satisfactory to the responsible public entity for those
  389  components of the qualifying project that involve construction.
  390         2. Review of plans and specifications for the qualifying
  391  project by the responsible public entity and approval by the
  392  responsible public entity if the plans and specifications
  393  conform to standards acceptable to the responsible public
  394  entity. This subparagraph does not require the private entity to
  395  complete the design of a qualifying project prior to the
  396  execution of a comprehensive agreement.
  397         3. Inspection of the qualifying project by the responsible
  398  public entity to ensure that the operator’s activities are
  399  acceptable to the responsible public entity in accordance with
  400  the provisions of the comprehensive agreement.
  401         4. Maintenance of a policy or policies of public liability
  402  insurance, copies of which shall be filed with the responsible
  403  public entity accompanied by proofs of coverage, and self
  404  insurance, each in the form and amount satisfactory to the
  405  responsible public entity and reasonably sufficient to insure
  406  coverage of tort liability to the public and employees and to
  407  enable the continued operation of the qualifying project.
  408         5. Monitoring the practices of the private entity by the
  409  responsible public entity to ensure that the qualifying project
  410  is properly maintained.
  411         6. Reimbursement to be paid to the responsible public
  412  entity for services provided by the responsible public entity.
  413         7. Filing of appropriate financial statements on a periodic
  414  basis.
  415         8. Policies and procedures governing the rights and
  416  responsibilities of the responsible public entity and the
  417  private entity in the event the comprehensive agreement is
  418  terminated or there is a material default by the private entity.
  419  Such policies and guidelines shall include conditions governing
  420  assumption of the duties and responsibilities of the private
  421  entity by the responsible public entity and the transfer or
  422  purchase of property or other interests of the private entity by
  423  the responsible public entity.
  424         9. User fees, lease payments, or service payments as may be
  425  established by agreement of the parties. A copy of any service
  426  contract shall be filed with the responsible public entity. In
  427  negotiating user fees under this subsection, the parties shall
  428  establish payments or fees that are the same for persons using
  429  the facility under like conditions and that will not materially
  430  discourage use of the qualifying project. The execution of the
  431  comprehensive agreement or any amendment thereto shall
  432  constitute conclusive evidence that the user fees, lease
  433  payments, or service payments provided for comply with this
  434  section. User fees or lease payments established in the
  435  comprehensive agreement as a source of revenues may be in
  436  addition to, or in lieu of, service payments.
  437         10. Duties of the private entity, including terms and
  438  conditions that the responsible public entity determines serve
  439  the public purpose of this section.
  440         (b) The comprehensive agreement may include:
  441         1. An agreement by the responsible public entity to make
  442  grants or loans to the private entity from amounts received from
  443  the federal, state, or local government or any agency or
  444  instrumentality thereof.
  445         2. Provisions under which the responsible public entity
  446  agrees to provide notice of default and cure rights for the
  447  benefit of the private entity and the persons specified therein
  448  as providing financing for the qualifying project, including
  449  terms and conditions to which the private entity and the
  450  responsible public entity mutually agree, including but limited
  451  to, provisions regarding unavoidable delays or a loan of public
  452  funds to the private entity to develop or operate one or more
  453  qualifying projects.
  454         3. Provisions where the authority and duties of the private
  455  entity under this section shall cease, and the qualifying
  456  project is dedicated to the responsible public entity or, if the
  457  qualifying project was initially dedicated by an affected local
  458  jurisdiction, to such affected local jurisdiction for public
  459  use.
  460         (c) Any changes in the terms of the comprehensive
  461  agreement, as agreed upon by the responsible public entity and
  462  the private entity, shall be added to the comprehensive
  463  agreement by written amendment.
  464         (d) The comprehensive agreement may provide for the
  465  development or operation of phases or segments of the qualifying
  466  project.
  467         (8) AFFECTED LOCAL JURISDICTIONS.—
  468         (a) Any private entity requesting approval from, or
  469  submitting a proposal to, a responsible public entity shall
  470  notify each affected local jurisdiction by furnishing a copy of
  471  its request or proposal to each affected local jurisdiction.
  472         (b) Each affected local jurisdiction that is not a
  473  responsible public entity for the respective qualifying project
  474  shall, within 60 days after receiving such notice, submit any
  475  comments it may have in writing on the proposed qualifying
  476  project to the responsible public entity and indicate whether
  477  the facility is compatible with the local comprehensive plan,
  478  local infrastructure development plans, the capital improvements
  479  budget, or other government spending plan. Such comments shall
  480  be given consideration by the responsible public entity before
  481  entering a comprehensive agreement with a private entity.
  482         (9) POWERS AND DUTIES OF THE PRIVATE ENTITY.—
  483         (a) The private entity has all power allowed by law
  484  generally to a private entity having the same form of
  485  organization as the private entity and shall have the power to
  486  develop or operate the qualifying project and collect lease
  487  payments, impose user fees, or enter into service contracts in
  488  connection with use thereof.
  489         (b) The private entity may own, lease, or acquire any other
  490  right to use or operate the qualifying project.
  491         (c) Any financing of the qualifying project may be in such
  492  amounts and upon such terms and conditions as may be determined
  493  by the private entity. Without limiting the generality of the
  494  foregoing, the private entity may issue debt, equity, or other
  495  securities or obligations; enter into sale and leaseback
  496  transactions; and secure any financing with a pledge of,
  497  security interest in, or lien on any or all of its property,
  498  including all of its property interests in the qualifying
  499  project.
  500         (d) In operating the qualifying project, the private entity
  501  may make classifications according to reasonable categories for
  502  assessment of user fees and, with the consent of the responsible
  503  public entity, make and enforce reasonable rules to the same
  504  extent that the responsible public entity may make and enforce
  505  rules with respect to similar facilities.
  506         (e) The private entity shall:
  507         1. Develop or operate the qualifying project in a manner
  508  that is acceptable to the responsible public entity, all in
  509  accordance with the provisions of an interim or comprehensive
  510  agreement.
  511         2. Maintain, or provide by contract for the maintenance or
  512  upgrade of the qualifying project, if required by an interim or
  513  comprehensive agreement.
  514         3. Cooperate with the responsible public entity in making
  515  best efforts to establish any interconnection with the
  516  qualifying project requested by the responsible public entity.
  517         4. Comply with the provisions of an interim or
  518  comprehensive agreement and any lease or service contract.
  519         (f) A private entity of a qualifying project is not
  520  prohibited from providing additional services for the qualifying
  521  project to public or private entities other than the responsible
  522  public entity so long as the provision of additional service
  523  does not impair the private entity’s ability to meet its
  524  commitments to the responsible public entity pursuant to an
  525  interim or comprehensive agreement.
  526         (10) MATERIAL DEFAULT; REMEDIES.—
  527         (a) In the event of a material default by the private
  528  entity, the responsible public entity may elect to assume the
  529  responsibilities and duties of the private entity of the
  530  qualifying project, and in such case, it shall succeed to all of
  531  the right, title, and interest in such qualifying project,
  532  subject to any liens on revenues previously granted by the
  533  private entity to any person providing financing thereof.
  534         (b) Any responsible public entity having the power of
  535  condemnation under state law may exercise such power of
  536  condemnation to acquire the qualifying project in the event of a
  537  material default by the private entity. Any person who has
  538  provided financing for the qualifying project, and the private
  539  entity, to the extent of its capital investment, may participate
  540  in the condemnation proceedings with the standing of a property
  541  owner.
  542         (c) The responsible public entity may terminate, with
  543  cause, an interim or comprehensive agreement and exercise any
  544  other rights and remedies that may be available to it at law or
  545  in equity.
  546         (d) The responsible public entity may make or cause to be
  547  made any appropriate claims under the maintenance, performance,
  548  or payment bonds, or lines of credit.
  549         (e) In the event the responsible public entity elects to
  550  take over a qualifying project, the responsible public entity
  551  may develop or operate the qualifying project, impose user fees,
  552  impose and collect lease payments for the use thereof and comply
  553  with any service contracts as if it were the private entity. Any
  554  revenues that are subject to a lien shall be collected for the
  555  benefit of and paid to secured parties, as their interests may
  556  appear, to the extent necessary to satisfy the private entity’s
  557  obligations to secured parties, including the maintenance of
  558  reserves. Such liens shall be correspondingly reduced and, when
  559  paid off, released. Before any payments to, or for the benefit
  560  of, secured parties, the responsible public entity may use
  561  revenues to pay current operation and maintenance costs of the
  562  qualifying project, including compensation to the responsible
  563  public entity for its services in developing and operating the
  564  qualifying project. The right to receive such payment, if any,
  565  shall be considered just compensation for the qualifying
  566  project. The full faith and credit of the responsible public
  567  entity shall not be pledged to secure any financing of the
  568  private entity by the election to take over the qualifying
  569  project. Assumption of the development or operation of the
  570  qualifying project shall not obligate the responsible public
  571  entity to pay any obligation of the private entity from sources
  572  other than revenues.
  573         (11) FEDERAL, STATE, AND LOCAL FINANCING.—
  574         (a) Any financing of a qualifying project may be in such
  575  amounts and upon such terms and conditions as determined by an
  576  interim or comprehensive agreement between the responsible
  577  public entity and the private entity. Without limiting the
  578  generality of the terms and conditions of the financing, the
  579  private entity and the responsible public entity may propose to
  580  use any and all funding resources that may be available and may,
  581  to the fullest extent permitted by applicable law, issue debt,
  582  equity, or other securities or obligations; enter into leases;
  583  access any designed trust funds; borrow or accept grants from
  584  any state infrastructure bank; and secure any financing with a
  585  pledge of, security interest in, or lien on, any or all of its
  586  property, including all of its property interests in the
  587  qualifying facility.
  588         (b) The responsible public entity may take any action to
  589  obtain federal, state, or local assistance for a qualifying
  590  project that serves the public purpose of this section and may
  591  enter into any contracts required to receive such assistance. If
  592  the responsible public entity is a state agency, any funds
  593  received from the state or federal government or any agency or
  594  instrumentality thereof shall be subject to appropriation by the
  595  Legislature. The responsible public entity may determine that it
  596  serves the public purpose of this section for all or any portion
  597  of the costs of a qualifying project to be paid, directly or
  598  indirectly, from the proceeds of a grant or loan made by the
  599  local, state, or federal government or any agency or
  600  instrumentality thereof.
  601         (12) SOVEREIGN IMMUNITY.—This section does not waive the
  602  sovereign immunity of the state, any responsible public entity,
  603  any affected local jurisdiction, or any officer or employee
  604  thereof with respect to the participation in, or approval of all
  605  or any part of the qualifying project or its operation,
  606  including, but not limited to, interconnection of the qualifying
  607  project with any other infrastructure or project. Counties,
  608  cities, and towns in which a qualifying project is located
  609  possess sovereign immunity with respect to the project’s design,
  610  construction, and operation.
  611         (13) CONSTRUCTION AND EFFECT.—This section shall be
  612  liberally construed to effectuate the purposes thereof. This
  613  section does not affect the authority of the responsible public
  614  entity to take action that would impact the debt capacity of the
  615  state.
  616         (14) PUBLIC-PRIVATE PARTNERSHIP ADVISORY COMMISSION.—
  617         (a) The Public-Private Partnership Advisory Commission is
  618  established to review the implementation of this section and to
  619  provide recommendations for any revisions necessary to further
  620  support public-private partnership opportunities in the state.
  621         (b) The commission shall consist of 12 members, as follows:
  622         1. Two members of the House of Representatives, appointed
  623  by the Speaker of the House of Representatives.
  624         2. Two members of the Senate, appointed by the President of
  625  the Senate.
  626         3. Eight members appointed by the Governor, as follows:
  627         a. Four local government officials.
  628         b. Two state agency representatives.
  629         c. Two representatives of the private sector.
  630  
  631  All terms are for 4 years, except those members of the House of
  632  Representatives and Senate, who shall serve on the commission
  633  until the expiration of their terms of office or until their
  634  successors qualify.
  635         (c) The members of the commission shall elect a chairperson
  636  and a vice chairperson. The commission shall hold public
  637  meetings at least quarterly or upon the call of the chairperson.
  638  A majority of the commission constitutes a quorum.
  639         (d) Members of the commission are entitled to receive per
  640  diem and travel expenses as provided in s. 112.061.
  641         (e) Administrative staff support shall be provided by the
  642  Executive Office of the Governor, as appropriate.
  643         (f) A copy of the minutes from each commission meeting
  644  shall be provided to and maintained by the Governor, the
  645  President of Senate, and the Speaker of the House of
  646  Representatives.
  647         (g) Beginning on December 13, 2013, and each year
  648  thereafter, the commission shall submit a report providing
  649  comments on the implementation of this section and
  650  recommendations for future revisions to the Governor, the
  651  President of the Senate, and the Speaker of the House of
  652  Representatives.
  653         Section 2. This act shall take effect July 1, 2012.