HB 0129 2003
1	CHAMBER ACTION
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6	The Committee on Business Regulation recommends the following:
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8	Committee Substitute
9	Remove the entire bill and insert:
10	A bill to be entitled
11	An act relating to the Florida Interlocal Cooperation Act
12	of 1969; amending s. 163.01, F.S.; providing procedures
13	for the approval of the transfer of powers between local
14	governments and a legal entity for the acquisition of
15	water or wastewater facilities serving residents outside
16	the jurisdiction of the members of the legal entity;
17	providing for alternative compliance with s. 4, Art. VIII
18	of the State Constitution; declaring a legal entity a
19	government authority under certain circumstances;
20	requiring a county to reserve the power to review and
21	approve rates under certain circumstances; prohibiting a
22	legal entity from receiving income generated from
23	customers under certain circumstances; granting a county
24	the right to acquire facilities of a legal entity serving
25	residents outside the jurisdiction of the members of the
26	legal entity under certain circumstances; providing for
27	retroactive application; providing an effective date.
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29	Be It Enacted by the Legislature of the State of Florida:
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31	Section 1. Paragraph (g) of subsection (7) of section
32	163.01, Florida Statutes, is amended to read:
33	163.01 Florida Interlocal Cooperation Act of 1969.--
34	(7)
35	(g)1. Notwithstanding any other provisions of this
36	section, any separate legal entity created under this section,
37	the membership of which is limited to municipalities and
38	counties of the state, may acquire, own, construct, improve,
39	operate, and manage public facilities, or finance facilities on
40	behalf of any person, relating to a governmental function or
41	purpose, including, but not limited to, wastewater facilities,
42	water or alternative water supply facilities, and water reuse
43	facilities, which may serve populations within or outside of the
44	members of the entity. Notwithstanding s. 367.171(7), any
45	separate legal entity created under this paragraph is not
46	subject to commission jurisdiction and may not provide utility
47	services within the service area of an existing utility system
48	unless it has received the consent of the utility. A separate
49	legal entity, other than a water supply authority created
50	pursuant to ss. 373.1962 and 373.1963, which seeks to acquire
51	any public facilities that serve populations outside of the
52	jurisdiction of members of the entity must notify in writing
53	each host government of the contemplated acquisition prior to
54	any transfer of ownership, use, or possession of any utility
55	assets to such separate legal entity. The potential acquisition
56	notice must be provided in writing to the legislative head of
57	the governing body of the host government and its chief
58	administrative officer and provide the name and address of a
59	contact person of the separate legal entity for the receipt of
60	information on the contemplated acquisition. Within 45 days
61	following receipt of the notice, the host government may adopt a
62	membership resolution indicating its intent to become a member
63	of the separate legal entity, a prohibition resolution to
64	prohibit the acquisition by the separate legal entity of public
65	facilities within its jurisdiction, an approval resolution
66	prescribing any restrictions on the proposed acquisition
67	required by the host local government, or take no action of any
68	kind. If a host government adopts a membership resolution, the
69	separate legal entity shall accept the host government as a
70	member prior to any transfer of ownership, use, or possession of
71	the public facilities on the same basis as its existing members.
72	If a host government adopts a prohibition resolution, the
73	separate legal entity may not acquire the public facilities
74	within such host government’s territory without specific consent
75	of the host government by future resolution. For purposes of
76	this paragraph, a “host government” is the governing body of the
77	county if a majority of the retail utility customers to be
78	served by the acquired public facilities within the county
79	reside in the unincorporated area or is the governing body of a
80	municipality if the majority of the retail utility customers to
81	be served by the acquired public facilities reside within the
82	municipal boundaries. A host government shall, in its adoption
83	of an approval resolution or a membership resolution or by a
84	resolution adopted subsequent to the closing of an acquisition,
85	reserve the right to review and approve as fair and reasonable
86	the rates, charges, and customer classifications adopted by the
87	separate legal entity for the use of the acquired public
88	facilities within the jurisdiction of the host local government.
89	Such right of rate review and approval by the host local
90	government is subject to the obligation of the separate legal
91	entity to establish rates and charges that comply with the
92	requirements contained in any resolution or trust agreement
93	relating to the issuance of bonds to acquire and improve the
94	affected public facilities and such right does not affect the
95	obligation of the separate legal entity to set rates at a level
96	sufficient to pay debt service on its obligations issued in
97	relation to the affected public facilities. A separate legal
98	entity created under this section shall be a governmental
99	authority for purposes of chapter 367. This paragraph is an
100	alternative provision otherwise provided by law as authorized in
101	s. 4, Art. VIII of the State Constitution for any transfer of
102	power as a result of an acquisition of public facilities by a
103	separate legal entity from a municipality, county, or special
104	district.The entity may finance or refinance the acquisition,
105	construction, expansion, and improvement of such facilities
106	relating to a governmental function or purpose through the
107	issuance of its bonds, notes, or other obligations under this
108	section or as otherwise authorized by law. The entity has all
109	the powers provided by the interlocal agreement under which it
110	is created or which are necessary to finance, own, operate, or
111	manage the public facility, including, without limitation, the
112	power to establish rates, charges, and fees for products or
113	services provided by it, the power to levy special assessments,
114	the power to sell or finance all or a portion of such facility,
115	and the power to contract with a public or private entity to
116	manage and operate such facilities or to provide or receive
117	facilities, services, or products. Except as may be limited by
118	the interlocal agreement under which the entity is created, all
119	of the privileges, benefits, powers, and terms of s. 125.01,
120	relating to counties, and s. 166.021, relating to
121	municipalities, are fully applicable to the entity. However,
122	neither the entity nor any of its members on behalf of the
123	entity may exercise the power of eminent domain over the
124	facilities or property of any existing water or wastewater plant
125	utility system, nor may the entity acquire title to any water or
126	wastewater plant utility facilities, other facilities, or
127	property which was acquired by the use of eminent domain after
128	the effective date of this act. Bonds, notes, and other
129	obligations issued by the entity are issued on behalf of the
130	public agencies that are members of the entity.
131	2. Any entity created under this section may also issue
132	bond anticipation notes in connection with the authorization,
133	issuance, and sale of bonds. The bonds may be issued as serial
134	bonds or as term bonds or both. Any entity may issue capital
135	appreciation bonds or variable rate bonds. Any bonds, notes, or
136	other obligations must be authorized by resolution of the
137	governing body of the entity and bear the date or dates; mature
138	at the time or times, not exceeding 40 years from their
139	respective dates; bear interest at the rate or rates; be payable
140	at the time or times; be in the denomination; be in the form;
141	carry the registration privileges; be executed in the manner; be
142	payable from the sources and in the medium or payment and at the
143	place; and be subject to the terms of redemption, including
144	redemption prior to maturity, as the resolution may provide. If
145	any officer whose signature, or a facsimile of whose signature,
146	appears on any bonds, notes, or other obligations ceases to be
147	an officer before the delivery of the bonds, notes, or other
148	obligations, the signature or facsimile is valid and sufficient
149	for all purposes as if he or she had remained in office until
150	the delivery. The bonds, notes, or other obligations may be sold
151	at public or private sale for such price as the governing body
152	of the entity shall determine. Pending preparation of the
153	definitive bonds, the entity may issue interim certificates,
154	which shall be exchanged for the definitive bonds. The bonds may
155	be secured by a form of credit enhancement, if any, as the
156	entity deems appropriate. The bonds may be secured by an
157	indenture of trust or trust agreement. In addition, the
158	governing body of the legal entity may delegate, to an officer,
159	official, or agent of the legal entity as the governing body of
160	the legal entity may select, the power to determine the time;
161	manner of sale, public or private; maturities; rate of interest,
162	which may be fixed or may vary at the time and in accordance
163	with a specified formula or method of determination; and other
164	terms and conditions as may be deemed appropriate by the
165	officer, official, or agent so designated by the governing body
166	of the legal entity. However, the amount and maturity of the
167	bonds, notes, or other obligations and the interest rate of the
168	bonds, notes, or other obligations must be within the limits
169	prescribed by the governing body of the legal entity and its
170	resolution delegating to an officer, official, or agent the
171	power to authorize the issuance and sale of the bonds, notes, or
172	other obligations.
173	3. Bonds, notes, or other obligations issued under
174	subparagraph 1. may be validated as provided in chapter 75. The
175	complaint in any action to validate the bonds, notes, or other
176	obligations must be filed only in the Circuit Court for Leon
177	County. The notice required to be published by s. 75.06 must be
178	published in Leon County and in each county that is a member of
179	the entity issuing the bonds, notes, or other obligations, or in
180	which a member of the entity is located, and the complaint and
181	order of the circuit court must be served only on the State
182	Attorney of the Second Judicial Circuit and on the state
183	attorney of each circuit in each county that is a member of the
184	entity issuing the bonds, notes, or other obligations or in
185	which a member of the entity is located. Section 75.04(2) does
186	not apply to a complaint for validation brought by the legal
187	entity.
188	4. The accomplishment of the authorized purposes of a
189	legal entity created under this paragraph is in all respects for
190	the benefit of the people of the state, for the increase of
191	their commerce and prosperity, and for the improvement of their
192	health and living conditions. Since the legal entity will
193	perform essential governmental functions in accomplishing its
194	purposes, the legal entity is not required to pay any taxes or
195	assessments of any kind whatsoever upon any property acquired or
196	used by it for such purposes or upon any revenues at any time
197	received by it. The bonds, notes, and other obligations of an
198	entity, their transfer and the income therefrom, including any
199	profits made on the sale thereof, are at all times free from
200	taxation of any kind by the state or by any political
201	subdivision or other agency or instrumentality thereof. The
202	exemption granted in this subparagraph is not applicable to any
203	tax imposed by chapter 220 on interest, income, or profits on
204	debt obligations owned by corporations.
205	5. Subsequent to the acquisition or construction of any
206	wastewater facilities, water or alternative water supply
207	facilities, or water reuse facilities by a separate legal entity
208	created pursuant to this subsection, revenues or other income of
209	any description may not be transferred or paid to a member of a
210	separate legal entity or to any other county or municipality
211	from user fees or other charges or revenues generated from
212	customers not physically located within the jurisdictional or
213	service delivery boundaries of the member or the county or
214	municipality receiving the transfer or payment. Any transfer or
215	payment to a member or other local government shall be solely
216	from user fees or other charges or revenue generated from
217	customers physically located within the jurisdictional or
218	service delivery boundaries of the member or the local
219	government receiving the transfer or payment.
220	6. The host government is guaranteed the right to acquire
221	any utility within its boundaries owned by the separate legal
222	entity. The separate legal entity shall sell and transfer a
223	utility to a host government for an amount equal to any
224	outstanding indebtedness associated with the utility to be sold
225	and transferred or an amount determined pursuant to any
226	resolution, trust agreement, or other financing document plus
227	the reasonable transaction costs incurred by the separate legal
228	entity to complete the sale and transfer.
229	Section 2. The acquisition requirements contained in the
230	amendment to s. 163.01(7)(g)1., Florida Statutes, provided in
231	this act which condition the acquisition by a separate legal
232	entity of public facilities that serve populations outside of
233	the members of the entity on the provision by such separate
234	legal entity of a potential acquisition notice to all host
235	governments, as defined in s. 163.01(7)(g)1., Florida Statutes,
236	and on the granting to a host government the opportunity to
237	adopt a membership resolution, a prohibition resolution, or an
238	approval resolution shall be retroactively applied and
239	substantial compliance with such acquisition requirements shall
240	be a specific condition of any acquisition subsequent to
241	September 1, 2002, of public facilities by a separate legal
242	entity created by interlocal agreement pursuant to s.
243	163.01(7)(g)1., Florida Statutes, pursuant to an acquisition
244	agreement entered into prior or subsequent to September 1, 2002.
245	Section 3. This act shall take effect upon becoming a law
246	and shall apply retroactively to September 1, 2002.