HOUSE AMENDMENT Bill No. HB 1459E1
1	CHAMBER ACTION
2	Senate House
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12	Representatives Attkisson and Russell offered the following:
13	Amendment (with title amendment)
14	Remove lines 1175 and 1176, and insert:
15	Section 29. Paragraph (g) of subsection (7) of section
16	163.01, Florida Statutes, is amended to read:
17	163.01 Florida Interlocal Cooperation Act of 1969.--
18	(7)
19	(g)1. Notwithstanding any other provisions of this
20	section, any separate legal entity created under this section,
21	the membership of which is limited to municipalities and
22	counties of the state, may acquire, own, construct, improve,
23	operate, and manage public facilities, or finance facilities on
24	behalf of any person, relating to a governmental function or
25	purpose, including, but not limited to, wastewater facilities,
26	water or alternative water supply facilities, and water reuse
27	facilities, which may serve populations within or outside of the
28	members of the entity. Notwithstanding s. 367.171(7), any
29	separate legal entity created under this paragraph is not
30	subject to Public Service Commission jurisdiction, except when a
31	host government specifically requests binding arbitration
32	services through the commission under subparagraphs 4. and 5.
33	and as is otherwise provided for in general law. The separate
34	legal entityandmay not provide utility services within the
35	service area of an existing utility system unless it has
36	received the consent of the utility.
37	2. For purposes of this paragraph, the term "utility"
38	means a water or wastewater utility and includes every person,
39	separate legal entity, lessee, trustee, or receiver owning,
40	operating, managing, or controlling a system, or proposing
41	construction of a system, who is providing, or proposes to
42	provide, water or wastewater service to the public for
43	compensation. For purposes of this paragraph, the term "system"
44	means each separate water or wastewater facility providing
45	service. For purposes of this paragraph, the term "host
46	government" means either the governing body of the county, if
47	the largest number of equivalent residential connections
48	currently served by a system of the utility is located in the
49	unincorporated area, or the governing body of a municipality, if
50	the largest number of equivalent residential connections
51	currently served by a system of the utility is located within
52	that municipality's boundaries. For purposes of this paragraph,
53	the term "separate legal entity" may mean any entity created by
54	interlocal agreement the membership of which is limited to two
55	or more municipalities or counties of the state, but which
56	entity is legally separate and apart from any of its member
57	governments. A separate legal entity that seeks to acquire any
58	utility must notify the host government in writing by certified
59	mail about the contemplated acquisition not less than 90 days
60	before any proposed transfer of ownership, use, or possession of
61	any utility assets by such separate legal entity. The potential
62	acquisition notice must be provided to the legislative head of
63	the governing body of the host government and to its chief
64	administrative officer and must provide the name and address of
65	a contact person for the separate legal entity and information
66	identified in s. 367.071(4)(a) concerning the contemplated
67	acquisition.
68	3. Within 90 days following receipt of the notice, the
69	host government may adopt a resolution to become a member of the
70	separate legal entity; adopt a resolution to approve the utility
71	acquisition; adopt a resolution to prohibit the utility
72	acquisition by the separate legal entity if the host government
73	determines that the proposed acquisition is not in the public
74	interest; request in writing an automatic 45-day extension of
75	the 90-day period in order to allow sufficient time for the host
76	government to evaluate the proposed acquisition; or take no
77	action to agenda the proposed acquisition for discussion at a
78	public meeting, which shall be construed as denial of the
79	proposed acquisition. If a host government adopts a prohibition
80	resolution, the separate legal entity may not acquire the
81	utility within that host government's territory without specific
82	consent of the host government by future resolution. If a host
83	government adopts a membership resolution, the separate legal
84	entity must accept the host government as a member before any
85	transfer of ownership, use, or possession of the utility or the
86	utility facilities on the same basis as its existing members. If
87	a host government does not adopt a prohibition resolution or an
88	approval resolution, does not provide a written request for an
89	extension of the 90-day notice period, and takes no action to
90	initiate judicial proceedings regarding the proposed
91	acquisition, the separate legal entity may proceed to acquire
92	the utility after the 90-day notice period without further
93	notice, except as otherwise agreed upon by the separate legal
94	entity and the host government. In utility acquisitions
95	involving two or more host governments, the Public Service
96	Commission shall consider whether the sale, assignment, or
97	transfer of the utility is in the public interest pursuant to
98	the provisions of s. 367.071(1).
99	4. In addition to the host government's right to review as
100	fair and reasonable the rates, charges, customer
101	classifications, and terms of service that will be in place at
102	the time of acquisition, the host government has the right to
103	review and approve as fair and reasonable any later changes
104	proposed by the separate legal entity to the rates, charges,
105	customer classifications, and terms of service, before adoption
106	by the separate legal entity. In addition, the host government
107	has the right to review and approve any changes to the financing
108	of such facilities which may result in increased costs to
109	customers. Such right of review and approval by the host
110	government is subject to the obligation of the separate legal
111	entity to establish rates and charges that comply with the
112	requirements contained in any resolution or trust agreement
113	relating to the issuance of bonds to acquire and improve the
114	affected utility, and such right does not affect the obligation
115	of the separate legal entity to set rates at a level sufficient
116	to pay debt service on its obligations issued in relation to the
117	host government utility. In order to facilitate review of
118	proposed changes by such host government, the separate legal
119	entity must notify the host government in writing by certified
120	mail about the proposed changes not less than 90 days before it
121	implements any changes. The notice of proposed changes must be
122	provided to the legislative head of the governing body of each
123	host government and to its chief administrative officer and must
124	provide the name and address of a contact person for the
125	separate legal entity and information identified in s.
126	367.081(2)(a)1. as it applies to publicly owned utilities about
127	the proposed changes. If after review the host government
128	believes that the proposed changes are in the public interest,
129	the host government may pass a resolution approving the proposed
130	changes. If, after review, the host government believes that the
131	proposed changes are not in the public interest, the host
132	government may enter into negotiation with the separate legal
133	entity to resolve those concerns. If no agreement is reached
134	within 30 days after the host government's determination that
135	the proposed changes are not in the public interest, the host
136	government may request and, if requested, shall receive binding
137	arbitration services through the Public Service Commission to
138	resolve the dispute with the separate legal entity. The
139	commission shall develop and adopt administrative rules
140	governing the arbitration process and establishing fees for this
141	dispute-resolution service.
142	5. After the acquisition or construction of any utility
143	systems by a separate legal entity created under this
144	subsection, revenues or any other income may not be transferred
145	or paid to a member of a separate legal entity, or to any other
146	county or municipality, from user fees or other charges or
147	revenues generated from customers that are not physically
148	located within the jurisdictional or service delivery boundaries
149	of the member, county, or municipality receiving the transfer or
150	payment. Any transfer or payment to a member or other local
151	government must be solely from user fees or other charges or
152	revenues generated from customers that are physically located
153	within the jurisdictional or service delivery boundaries of the
154	member or local government receiving the transfer or payment.
155	6. The host government is guaranteed the right to acquire
156	any utility or utility system that it hosts owned by the
157	separate legal entity. In those instances when the separate
158	legal entity and the host government cannot agree on the terms
159	and conditions of the acquisition, the host government may
160	request and, if requested, shall receive binding arbitration
161	services through the Public Service Commission to resolve the
162	disputed acquisition terms. The commission shall develop and
163	adopt administrative rules governing the arbitration process and
164	establishing the fees for these services. In developing and
165	adopting its rules governing the acquisition price for a given
166	host government to acquire the utility or utility system located
167	within its jurisdiction, the Public Service Commission shall, to
168	the greatest extent possible, base the acquisition price on the
169	same percentage to the total bonded indebtedness of the separate
170	legal entity upon acquiring the utility as the acquired system's
171	rate base was to the utility's total rate base at the time
172	transferred from a regulated utility to the separate legal
173	entity. This paragraph is an alternative provision otherwise
174	provided by law as authorized in s. 4, Art. VIII of the State
175	Constitution for any transfer of power as a result of an
176	acquisition of a utility by a separate legal entity from a
177	municipality, county, or special district.
178	7.The entity may finance or refinance the acquisition,
179	construction, expansion, and improvement of such facilities
180	relating to a governmental function or purpose through the
181	issuance of its bonds, notes, or other obligations under this
182	section or as otherwise authorized by law. Except as limited by
183	the terms and conditions of the utility acquisition agreement,
184	as approved by the applicable host government,the entity has
185	all the powers provided by the interlocal agreement under which
186	it is created or which are necessary to finance, own, operate,
187	or manage the public facility, including, without limitation,
188	the power to establish rates, charges, and fees for products or
189	services provided by it, the power to levy special assessments,
190	the power to sell or finance all or a portion of such facility,
191	and the power to contract with a public or private entity to
192	manage and operate such facilities or to provide or receive
193	facilities, services, or products. Except as may be limited by
194	the interlocal agreement under which the entity is created, all
195	of the privileges, benefits, powers, and terms of s. 125.01,
196	relating to counties, and s. 166.021, relating to
197	municipalities, are fully applicable to the entity. However,
198	neither the entity nor any of its members on behalf of the
199	entity may exercise the power of eminent domain over the
200	facilities or property of any existing water or wastewater plant
201	utility system, nor may the entity acquire title to any water or
202	wastewater plant utility facilities, other facilities, or
203	property which was acquired by the use of eminent domain after
204	the effective date of this act. Bonds, notes, and other
205	obligations issued by the entity are issued on behalf of the
206	public agencies that are members of the entity.
207	8.2.Except as limited by the terms and conditions of the
208	utility acquisition agreement, as approved by the applicable
209	host government,any entity created under this section may also
210	issue bond anticipation notes in connection with the
211	authorization, issuance, and sale of bonds. The bonds may be
212	issued as serial bonds or as term bonds or both. Any entity may
213	issue capital appreciation bonds or variable rate bonds. Any
214	bonds, notes, or other obligations must be authorized by
215	resolution of the governing body of the entity and bear the date
216	or dates; mature at the time or times, not exceeding 40 years
217	from their respective dates; bear interest at the rate or rates;
218	be payable at the time or times; be in the denomination; be in
219	the form; carry the registration privileges; be executed in the
220	manner; be payable from the sources and in the medium or payment
221	and at the place; and be subject to the terms of redemption,
222	including redemption prior to maturity, as the resolution may
223	provide. If any officer whose signature, or a facsimile of whose
224	signature, appears on any bonds, notes, or other obligations
225	ceases to be an officer before the delivery of the bonds, notes,
226	or other obligations, the signature or facsimile is valid and
227	sufficient for all purposes as if he or she had remained in
228	office until the delivery. The bonds, notes, or other
229	obligations may be sold at public or private sale for such price
230	as the governing body of the entity shall determine. Pending
231	preparation of the definitive bonds, the entity may issue
232	interim certificates, which shall be exchanged for the
233	definitive bonds. The bonds may be secured by a form of credit
234	enhancement, if any, as the entity deems appropriate. The bonds
235	may be secured by an indenture of trust or trust agreement. In
236	addition, the governing body of the legal entity may delegate,
237	to an officer, official, or agent of the legal entity as the
238	governing body of the legal entity may select, the power to
239	determine the time; manner of sale, public or private;
240	maturities; rate of interest, which may be fixed or may vary at
241	the time and in accordance with a specified formula or method of
242	determination; and other terms and conditions as may be deemed
243	appropriate by the officer, official, or agent so designated by
244	the governing body of the legal entity. However, the amount and
245	maturity of the bonds, notes, or other obligations and the
246	interest rate of the bonds, notes, or other obligations must be
247	within the limits prescribed by the governing body of the legal
248	entity and its resolution delegating to an officer, official, or
249	agent the power to authorize the issuance and sale of the bonds,
250	notes, or other obligations.
251	9.3. Bonds, notes, or other obligations issued under this
252	paragraphsubparagraph 1.may be validated as provided in
253	chapter 75. The complaint in any action to validate the bonds,
254	notes, or other obligations must be filed only in the Circuit
255	Court for Leon County. The notice required to be published by s.
256	75.06 must be published in Leon County and in each county that
257	is a member of the entity issuing the bonds, notes, or other
258	obligations, or in which a member of the entity is located, and
259	the complaint and order of the circuit court must be served only
260	on the State Attorney of the Second Judicial Circuit and on the
261	state attorney of each circuit in each county that is a member
262	of the entity issuing the bonds, notes, or other obligations or
263	in which a member of the entity is located. Section 75.04(2)
264	does not apply to a complaint for validation brought by the
265	legal entity.
266	10.4.The accomplishment of the authorized purposes of a
267	legal entity created under this paragraph is in all respects for
268	the benefit of the people of the state, for the increase of
269	their commerce and prosperity, and for the improvement of their
270	health and living conditions. Since the legal entity will
271	perform essential governmental functions in accomplishing its
272	purposes, the legal entity is not required to pay any taxes or
273	assessments of any kind whatsoever upon any property acquired or
274	used by it for such purposes or upon any revenues at any time
275	received by it. The bonds, notes, and other obligations of an
276	entity, their transfer and the income therefrom, including any
277	profits made on the sale thereof, are at all times free from
278	taxation of any kind by the state or by any political
279	subdivision or other agency or instrumentality thereof. The
280	exemption granted in this subparagraph is not applicable to any
281	tax imposed by chapter 220 on interest, income, or profits on
282	debt obligations owned by corporations.
283	Section 30. Subsection (1) of section 120.52, Florida
284	Statutes, is amended to read:
285	120.52 Definitions.--As used in this act:
286	(1) "Agency" means:
287	(a) The Governor in the exercise of all executive powers
288	other than those derived from the constitution.
289	(b) Each:
290	1. State officer and state department, and each
291	departmental unit described in s. 20.04.
292	2. Authority, including a regional water supply authority.
293	3. Board.
294	4. Commission, including the Commission on Ethics and the
295	Fish and Wildlife Conservation Commission when acting pursuant
296	to statutory authority derived from the Legislature.
297	5. Regional planning agency.
298	6. Multicounty special district with a majority of its
299	governing board comprised of nonelected persons.
300	7. Educational units.
301	8. Entity described in chapters 163, 373, 380, and 582 and
302	s. 186.504.
303	(c) Each other unit of government in the state, including
304	counties and municipalities, to the extent they are expressly
305	made subject to this act by general or special law or existing
306	judicial decisions.
307
308
309	This definition does not include any legal entity or agency
310	created in whole or in part pursuant to chapter 361, part II, an
311	expressway authority pursuant to chapter 348, any legal or
312	administrative entity created by an interlocal agreement
313	pursuant to s. 163.01(7), except those created pursuant to s.
314	163.01(7)(g)1.,unless any party to such agreement is otherwise
315	an agency as defined in this subsection, or any multicounty
316	special district with a majority of its governing board
317	comprised of elected persons; however, this definition shall
318	include a regional water supply authority.
319	Section 31. Subsection (7) of section 367.021, Florida
320	Statutes, is amended to read:
321	367.021 Definitions.--As used in this chapter, the
322	following words or terms shall have the meanings indicated:
323	(7) "Governmental authority" means a political
324	subdivision, as defined by s. 1.01(8), a regional water supply
325	authority created pursuant to s. 373.1962, or a nonprofit
326	corporation formed for the purpose of acting on behalf of a
327	political subdivision with respect to a water or wastewater
328	facility; however, this definition shall exclude a separate
329	legal entity created pursuant to s. 163.01(7)(g)1.
330	Section 32. Subsections (1) and (4) of section 367.071,
331	Florida Statutes, are amended to read:
332	367.071 Sale, assignment, or transfer of certificate of
333	authorization, facilities, or control.--
334	(1) ANo utility may notshallsell, assign, or transfer
335	its certificate of authorization, facilities or any portion
336	thereof, or majority organizational control without
337	determination and approval of the commission that the proposed
338	sale, assignment, or transfer is in the public interest and that
339	the buyer, assignee, or transferee will fulfill the commitments,
340	obligations, and representations of the utility. However, a
341	sale, assignment, or transfer of its certificate of
342	authorization, facilities or any portion thereof, or majority
343	organizational control may occur prior to commission approval if
344	the contract for sale, assignment, or transfer is made
345	contingent upon commission approval.
346	(4) An application shall be disposed of as provided in s.
347	367.045, except that:
348	(a) The sale of facilities, in whole or part, to a
349	governmental authority, as defined in s. 367.021(7),shall be
350	approved as a matter of right; however, the governmental
351	authority shall, prior to taking any official action, obtain
352	from the utility or commission with respect to the facilities to
353	be sold the most recent available income and expense statement,
354	balance sheet, and statement of rate base for regulatory
355	purposes and contributions-in-aid-of-construction. Any request
356	for rate relief pending before the commission at the time of
357	sale is deemed to have been withdrawn. Interim rates, if
358	previously approved by the commission, must be discontinued, and
359	any money collected pursuant to interim rate relief must be
360	refunded to the customers of the utility with interest.
361	(b) When paragraph (a) does not apply, the commission
362	shall amend the certificate of authorization as necessary to
363	reflect the change resulting from the sale, assignment, or
364	transfer.
365	Section 33. If any provision of this act or the
366	application thereof to any person or circumstance is held
367	invalid, the invalidity does not affect other provisions or
368	applications of this act which can be given effect without the
369	invalid provision or application, and to this end the provisions
370	of this act are declared severable.
371	Section 34. Private property rights and regional
372	reservoirs.--
373	(1) The Legislature finds that construction of a regional
374	reservoir designed to store more than 10 billion gallons of
375	water may inordinately burden nearby real property because of
376	the proximity of the reservoir and may result in a loss of value
377	for the property owner. Therefore, a regional water supply
378	authority, serving three or fewer counties, that is authorized
379	to construct, operate, and maintain such a regional reservoir
380	shall be deemed a governmental entity under section 70.001,
381	Florida Statutes, the Bert J. Harris, Jr., Private Property
382	Rights Protection Act, for purposes of this section.
383	(2) This section provides a cause of action for the
384	actions of a regional water supply authority, in siting and
385	constructing a reservoir as described in subsection (1), that
386	may not rise to the level of a taking under the State
387	Constitution or the United States Constitution. This section may
388	not necessarily be construed under the case law regarding
389	takings if the action of a regional water supply authority does
390	not rise to the level of a taking. The provisions of this
391	section are cumulative and do not abrogate any other remedy
392	lawfully available, including any remedy lawfully available for
393	the actions of a regional water supply authority that rise to
394	the level of a taking. However, a regional water supply
395	authority may not be liable more than once for compensation due
396	to an action of the regional water supply authority that results
397	in a loss of value for a subject real property.
398	(3) Each owner of real property located within 10,000 feet
399	of the the center of the footprint of a regional reservoir, as
400	described in subsection(1), or 5,500 feet from the exterior of
401	the berm of such reservoir, may present a claim for compensation
402	in writing to the head of the regional water supply authority on
403	or before December 31, 2004, for a loss in property value
404	resulting from the proximity of the reservoir. For each claim
405	presented under this section, section 70.001, Florida Statutes,
406	applies, except when there is conflict with this section, the
407	provisions of this section shall govern.
408	(a) The property owner must submit along with the claim a
409	bona fide, valid appraisal that supports the claim and
410	demonstrates the loss in fair market value to the real property.
411	(b) A claim under this section shall be presented only to
412	the regional water supply authority that is authorized to
413	construct, operate, and maintain the reservoir.
414	(4) The Legislature recognizes that construction and
415	maintenance of a regional reservoir may not necessarily
416	interfere with allowable uses of real property near the
417	reservoir. However, the siting and construction of the reservoir
418	may result in an actual loss to the fair market value of real
419	property located within 10,000 feet of the center of the
420	footprint of the reservoir, or 5,500 feet from the exterior of
421	the berm, because of the proximity of the reservoir. Therefore,
422	any offer of compensation by the regional water supply authority
423	shall be based solely on the loss of value for the property
424	owner as a result of the proximity of the reservoir and not on
425	the effects the reservoir has on existing uses or on a vested
426	right to a specific use of real property.
427	(a) Notwithstanding section 70.001, Florida Statutes, the
428	regional water supply authority to whom a claim is presented
429	shall, not later than 180 days after receiving such claim:
430	1. Make a written offer to purchase the real property if
431	there is more than a 50-percent loss in value to the real
432	property as a result of the proximity of the reservoir and if
433	the property owner is a willing seller;
434	2. Make a written offer to purchase an interest in rights
435	of use which may become transferable development rights to be
436	held, sold, or otherwise disposed of by the regional water
437	supply authority; or
438	3. Terminate negotiations.
439	(b) An offer by the regional water supply authority to
440	purchase the property in fee or purchase an interest in rights
441	of use under this section shall cover the cost of the appraisal
442	required in subsection (3).
443	(5) During the 180-day period, unless the property owner
444	accepts a written offer for purchase pursuant to subparagraph
445	(4)(a)1. or 2., the regional water supply authority shall issue
446	a final decision stating that:
447	(a) The real property has a loss in value due to an
448	inordinate burden on the property resulting from the proximity
449	of the reservoir and the regional water supply authority and
450	property owner cannot reach agreement on the amount of
451	compensation; or
452	(b) The property owner has failed to establish a basis for
453	relief under the provisions of this section and section 70.001,
454	Florida Statutes.
455
456
457	Failure of the regional water supply authority to issue a final
458	decision as required by this subsection shall cause the written
459	offer or termination of negotiations required in subsection (4)
460	to operate as a final decision. As a matter of law, this final
461	decision constitutes the last prerequisite to judicial review of
462	the merits for the purposes of the judicial proceeding provided
463	for in section 70.001, Florida Statutes.
464	(6) The circuit court, for purposes of this section, shall
465	determine whether, considering the written offer and final
466	decision, the regional water supply authority has inordinately
467	burdened the subject real property. Following a determination
468	that the regional water supply authority has inordinately
469	burdened the real property, the court shall impanel a jury to
470	determine the total amount of compensation to the property owner
471	for the loss in value due to the inordinate burden to the
472	subject real property.
473	(7) Pursuant to section 70.001, Florida Statutes, the
474	court may award reasonable costs and attorney's fees and the
475	court shall determine the amount. If the court awards the
476	property owner reasonable costs and attorney's fees, the costs
477	shall include the cost of the appraisal required in
478	subsection(3).
479	(8) This section shall take effect July 1, 2003, and is
480	repealed effective January 1, 2005. However, the repeal of this
481	section shall not affect a claim filed on or before December 31,
482	2004.
483	Section 35. Except as otherwise expressly provided in this
484	act, this act shall take effect upon becoming a law and shall
485	apply to all contracts pending on that date.
486
487
488	================= T I T L E A M E N D M E N T =================
489	Remove line(s) 109, and insert:
490	certain fees; amending s. 163.01, F.S.; providing applicability
491	of provisions relating to ownership and operation of utilities
492	by entities composed of municipalities and counties; prescribing
493	powers of counties and specified municipalities with respect to
494	acquisition of water utilities and wastewater utilities by
495	separate legal entities composed of municipalities and counties;
496	authorizing the Public Service Commission to review the
497	acquisition of a utility by two or more host governments;
498	providing for a binding arbitration process under the Public
499	Service Commission to resolve certain disputes relating to
500	utility acquisition; authorizing the commission to adopt rules;
501	requiring the Public Service Commission to establish rules that
502	base the acquisition price for a host government to acquire a
503	utility on certain information; amending s. 120.52, F.S.;
504	deleting an exception from the requirements of ch. 120, F.S.,
505	for an entity created under s. 163.01(7)(g)1., F.S.; amending s.
506	367.021, F.S.; excluding an entity created under s.
507	163.01(7)(g)1., F.S., from the definition of "governmental
508	authority"; amending s. 367.071, F.S.; deleting a provision
509	authorizing a utility to be sold or transferred prior to
510	approval of the Public Service Commission with a contingency
511	clause in the contract; providing severability; providing
512	legislative findings with respect to loss of property values due
513	to the proximity of a regional water reservoir; authorizing a
514	cause of action for a property owner; specifying a period during
515	which a property owner may present a claim for compensation to
516	the regional water supply authority that constructs, operates,
517	and maintains the reservoir; providing requirements for the
518	offer of compensation by a regional water supply authority;
519	providing for judicial review under the Bert J. Harris, Jr.,
520	Private Property Rights Protection Act; providing for an award
521	of costs and attorney's fees; providing for future repeal of the
522	section; providing for applicability; providing effective dates.
523