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