House Bill hb0435e1

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                                        CS/HB 435, First Engrossed



  1                      A bill to be entitled

  2         An act relating to transportation; amending s.

  3         334.30, F.S.; providing for public-private

  4         transportation facilities; eliminating the

  5         requirement that the Legislature approve such

  6         facilities; providing requirements for the use

  7         of funds from the State Transportation Trust

  8         Fund; providing requirements with respect to

  9         proposals; providing for a selection process;

10         providing for specific project approval by the

11         Legislature for certain projects; authorizing

12         the Department of Transportation to create

13         certain corporations; authorizing such

14         corporations to issue bonds; authorizing the

15         department to lend certain funds to such

16         corporations; authorizing the department to

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

18         relating to private entity proposals for

19         transportation projects; amending s. 348.0004,

20         F.S.; establishing a process enabling certain

21         expressway authorities to participate in

22         public-private partnerships to build, operate,

23         own, or finance certain transportation

24         facilities; specifying the expressway

25         authority's role in such projects and providing

26         rulemaking authority; providing for a selection

27         process; providing for the assessment of tolls;

28         providing for creation of certain tax-exempt,

29         public-purpose corporations; authorizing such

30         corporations to issue bonds; providing an

31         effective date.


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                                        CS/HB 435, First Engrossed



  1  Be It Enacted by the Legislature of the State of Florida:

  2

  3         Section 1.  Section 334.30, Florida Statutes, is

  4  amended to read:

  5         334.30  Public-private Private transportation

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

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

  8  efficient transportation facilities for the purpose of travel

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

10  provide for public-private partnership agreements to

11  effectuate the construction of additional safe, convenient,

12  and economical transportation facilities.

13         (1)  The department may receive or solicit proposals

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

15  facility, enter into agreements with private entities, or

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

17  financing of transportation facilities.  The department is

18  authorized to adopt rules to implement this section and shall

19  by rule establish an application fee for the submission of

20  proposals under this section.  The fee must be sufficient to

21  pay the costs of evaluating the proposals.  The department may

22  engage the services of private consultants to assist in the

23  evaluation. Before seeking legislative approval, the

24  department must determine that the proposed project:

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

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

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

28  may use state resources for a transportation facility project

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

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

31


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                                        CS/HB 435, First Engrossed



  1         (c)  Would have adequate safeguards in place to ensure

  2  that no additional costs or service disruptions would be

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

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

  5  department.

  6

  7  The department shall ensure that all reasonable costs to the

  8  state related to transportation facilities that are not part

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

10  entity. The department shall also ensure that all reasonable

11  costs to the state, and substantially affected local

12  governments, and utilities, related to the private

13  transportation facility, are borne by the public-private

14  private entity for transportation facilities that are owned by

15  private entities.

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

17  Trust Fund is limited to advancing projects already programmed

18  in the adopted 5-year work program or to no more than a

19  statewide total of $50 million in capital costs for all

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

21         (3)  The department may request proposals for

22  public-private transportation projects or, if the department

23  receives an unsolicited proposal, shall publish a notice in

24  the Florida Administrative Weekly and a newspaper of general

25  circulation at least once a week for 2 weeks, stating that the

26  department has received the proposal and will accept, for 60

27  days after the initial date of publication, other proposals

28  for the same project purpose. A copy of the notice must be

29  mailed to each local government in the affected area. After

30  the public notification period has expired, the department

31  shall then rank the proposals in order of preference. In


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                                        CS/HB 435, First Engrossed



  1  ranking the proposals, the department may consider, but is not

  2  limited to considering, professional qualifications, general

  3  business terms, innovative engineering or cost-reduction

  4  terms, finance plans, and the need for state funds to deliver

  5  the proposal. The department shall negotiate with the

  6  top-ranked proposer in good faith, and if the department is

  7  not satisfied with the results of said negotiations, the

  8  department may, at its sole discretion, terminate negotiations

  9  with said proposer. If these negotiations are unsuccessful,

10  the department may go to the second and lower-ranked firms in

11  order using this same procedure. If only one proposal is

12  received, the department may negotiate in good faith, and if

13  the department is not satisfied with the results of said

14  negotiations, the department may, at its sole discretion,

15  terminate negotiations with the said proposers.

16  Notwithstanding any other provision of this subsection, the

17  department may, at its sole discretion, reject all proposals

18  at any point in the process up to completion of a contract

19  with the proposer.

20         (4)  The department shall not commit funds in excess of

21  the limitation in subsection (2) without specific project

22  approval by the Legislature.

23         (5)(2)  Agreements entered into pursuant to this

24  section may authorize the private entity to impose tolls or

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

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

27  department to avoid unreasonable costs to users of the

28  facility.

29         (6)(3)  Each private transportation facility

30  constructed pursuant to this section shall comply with all

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


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                                        CS/HB 435, First Engrossed



  1  regional, and local comprehensive plans; department rules,

  2  policies, procedures, and standards for transportation

  3  facilities; and any other conditions which the department

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

  5         (7)(4)  The department may exercise any power possessed

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

  7  development and construction of state transportation projects

  8  to facilitate the development and construction of

  9  transportation projects pursuant to this section. For

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

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

12  and maintaining the facility. For facilities not located on

13  the State Highway System, the department may provide services

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

15  enforcement, and other services entered into pursuant to this

16  section shall provide for full reimbursement for services

17  rendered.

18         (8)(5)  Except as herein provided, the provisions of

19  this section are not intended to amend existing laws by

20  granting additional powers to, or further restricting, local

21  governmental entities from regulating and entering into

22  cooperative arrangements with the private sector for the

23  planning, construction, and operation of transportation

24  facilities.

25         (9)  The department shall have the authority to create

26  or assist in the creation of tax-exempt, public-purpose

27  Internal Revenue Service Ruling 63-20 corporations as provided

28  for under the Internal Revenue Code. Any bonds issued by the

29  63-20 corporation shall be payable solely from and secured by

30  a lien upon and pledge of the revenues received by the 63-20

31  corporation. Any bonds issued by the 63-20 corporation shall


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                                        CS/HB 435, First Engrossed



  1  not be or constitute a general indebtedness of the State of

  2  Florida, any department or agency thereof, or any political

  3  subdivision thereof within the meaning of any constitutional

  4  or statutory provision or limitation. The full faith and

  5  credit of the State of Florida shall not be pledged to the

  6  payment of the principal of or interest on the bonds issued by

  7  the 63-20 corporation. No owner of any of the bonds shall ever

  8  have the right to require or compel the exercise of the taxing

  9  power of the State of Florida or any department or agency of

10  the state for payment thereof, and the bonds shall not

11  constitute a lien upon any property owned by the State of

12  Florida or any department or agency of the state. Bonds issued

13  by the 63-20 corporation shall be rated investment grade by a

14  nationally recognized credit rating agency. Nothing in this

15  subsection is intended to prohibit credit enhancement of such

16  bonds, whether provided by private or governmental sources

17  other than sources backed by the taxing power of the State of

18  Florida. Nothing in this subsection is intended to prohibit

19  the pledging of additional funds or revenues from private

20  sources to secure such bonds. Internal Revenue Service Ruling

21  63-20 corporations may receive State Transportation Trust Fund

22  grants and loans from the department. The department shall be

23  empowered to enter into public-private partnership agreements

24  with Internal Revenue Service Ruling 63-20 corporations for

25  projects under this section but shall not agree to expend any

26  funds not appropriated for this purpose. The provisions of s.

27  339.135(6) shall apply to such agreements.

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

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

30  Internal Revenue Service Ruling 63-20 corporations that

31  construct projects containing toll facilities approved under


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                                        CS/HB 435, First Engrossed



  1  this section. To be eligible, the Internal Revenue Service

  2  Ruling 63-20 corporation must meet the provisions of s.

  3  338.251 and must either provide an indication from a

  4  nationally recognized rating agency that the senior bonds of

  5  the 63-20 corporation will be investment grade or must provide

  6  credit support, such as a letter of credit or other means

  7  acceptable to the department, to ensure that the loans will be

  8  fully repaid as required by law. The state's liability for

  9  debt of a facility shall be limited to the amount approved for

10  that specific facility in the department's 5-year work program

11  adopted pursuant to s. 339.135.

12         (11)(6)  Notwithstanding s. 341.327, a fixed-guideway

13  transportation system authorized by the department to be

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

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

16  any safe speed.

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

18  348.0004, Florida Statutes, is repealed.

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

20  348.0004, Florida Statutes, to read:

21         348.0004  Purposes and powers.--

22         (9)  The Legislature hereby finds and declares that

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

24  efficient transportation facilities for the purpose of travel

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

26  provide for public-private partnership agreements to

27  effectuate the construction of additional safe, convenient,

28  and economical transportation facilities.

29         (a)  An expressway authority in any county as defined

30  in s. 125.011(1) may receive or solicit proposals and enter

31  into agreements with private entities, or consortia thereof,


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                                        CS/HB 435, First Engrossed



  1  for the building, operation, ownership, or financing or

  2  extensions or other improvements to existing expressway

  3  authority transportation facilities or new transportation

  4  facilities that are within the jurisdiction of such an

  5  expressway authority. Such an expressway authority is

  6  authorized to adopt rules to implement this subsection and

  7  shall by rule establish an application fee for the submission

  8  of unsolicited proposals under this subsection. The fee must

  9  be sufficient to pay the costs of evaluating the proposals.

10  Such an expressway authority may engage the services of

11  private consultants to assist in the evaluation. Before

12  approval, such an expressway authority must determine that the

13  proposed project:

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

15         2.  Would have adequate safeguards in place to ensure

16  that no additional costs or service disruptions would be

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

18  the event of default by the private entity or consortium or

19  cancellation of the agreement by such expressway authority.

20         (b)  Such an expressway authority may request proposals

21  for public-private transportation projects or, if such an

22  expressway authority receives an unsolicited proposal that it

23  has an interest in evaluating, it shall publish a notice in

24  the Florida Administrative Weekly and a newspaper of general

25  circulation in the county in which such expressway authority

26  is located at least once a week for 2 weeks stating that such

27  expressway authority has received the proposal and will

28  accept, for 60 days after the initial date of publication,

29  other proposals for the same project purpose. A copy of the

30  notice must be mailed to each local government in the affected

31  areas. After the public notification period has expired, the


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                                        CS/HB 435, First Engrossed



  1  expressway authority shall then rank the proposals in order of

  2  preference. In ranking the proposals, the expressway authority

  3  may consider, but is not limited to considering, professional

  4  qualifications, general business terms, innovative engineering

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

  6  funds to deliver the proposal. The expressway authority shall

  7  negotiate with the top-ranked proposer in good faith, and if

  8  the expressway authority is not satisfied with the results of

  9  said negotiations, the expressway authority may, at its sole

10  discretion, terminate negotiations with said proposer. If

11  these negotiations are unsuccessful, the expressway authority

12  may go to the second and lower-ranked firms in order using

13  this same procedure. If only one proposal is received, the

14  expressway authority may negotiate in good faith, and if the

15  expressway authority is not satisfied with the results of said

16  negotiations, the expressway authority may, at its sole

17  discretion, terminate negotiations with the said proposers.

18  Notwithstanding any other provision of this paragraph, the

19  expressway authority may, at its sole discretion, reject all

20  proposals at any point in the process up to completion of a

21  contract with the proposer.

22         (c)  Agreements entered into pursuant to this

23  subsection may authorize the private entity to impose tolls or

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

25  use of toll or fare revenues may be regulated by such an

26  expressway authority to avoid unreasonable costs to users of

27  the facility.

28         (d)  Each transportation facility constructed pursuant

29  to this subsection shall comply with all requirements of

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

31  comprehensive plans; such expressway authority's rules,


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                                        CS/HB 435, First Engrossed



  1  policies, procedures, and standards for transportation

  2  facilities; and any other conditions such expressway authority

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

  4         (e)  Such an expressway authority may exercise any

  5  power possessed by it, including eminent domain, with respect

  6  to the development and construction of transportation projects

  7  to facilitate the development and construction of

  8  transportation projects pursuant to this subsection.  Such an

  9  expressway authority may pay all or part of the cost of

10  operating and maintaining the facility or may provide services

11  to the private entity for which it shall be entitled to

12  receive full or partial reimbursement for services rendered.

13         (f)  Except as herein provided, the provisions of this

14  subsection are not intended to amend existing laws by further

15  expanding or further restricting the authority of local

16  governmental entities to regulate and enter into cooperative

17  arrangements with the private sector for the planning,

18  construction, and operation of transportation facilities.

19         (g)  Such an expressway authority shall have the

20  authority to create or assist in the creation of tax-exempt,

21  public-purpose Internal Revenue Service Ruling 63-20

22  corporations as provided for under the Internal Revenue Code.

23  Any bonds issued by the 63-20 corporation shall be payable

24  solely from and secured by a lien upon and pledge of the

25  revenues received by the 63-20 corporation. Any bonds issued

26  by the 63-20 corporation shall not be or constitute a general

27  indebtedness of the State of Florida, any department or agency

28  thereof, or any political subdivision thereof within the

29  meaning of any constitutional or statutory provision or

30  limitation. The full faith and credit of the State of Florida

31  shall not be pledged to the payment of the principal of or


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                                        CS/HB 435, First Engrossed



  1  interest on the bonds issued by the 63-20 corporation. No

  2  owner of any of the bonds shall ever have the right to require

  3  or compel the exercise of the taxing power of the State of

  4  Florida or any department or agency of the state for payment

  5  thereof, and the bonds shall not constitute a lien upon any

  6  property owned by the State of Florida or any department or

  7  agency of the state. Bonds issued by the 63-20 corporation

  8  shall be rated investment grade by a nationally recognized

  9  credit rating agency. Nothing in this paragraph is intended to

10  prohibit credit enhancement of such bonds, whether provided by

11  private or governmental sources other than sources backed by

12  the taxing power of the State of Florida. Nothing in this

13  paragraph is intended to prohibit the pledging of additional

14  funds or revenues from private sources to secure such bonds.

15  Such an expressway authority shall be empowered to enter into

16  public-private partnership agreements with Internal Revenue

17  Service Ruling 63-20 corporations for projects under this

18  subsection.

19         (h)  Such an expressway authority or Internal Revenue

20  Service Ruling 63-20 corporation created under this subsection

21  shall be entitled to apply for grants and loans from the

22  department for projects under this subsection, subject to the

23  same eligibility criteria and other terms and conditions as

24  would apply to projects of such an expressway authority

25  undertaken without private participation.

26         Section 4.  This act shall take effect upon becoming a

27  law.

28

29

30

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