HB 1027CS

CHAMBER ACTION




1The Committee on Transportation recommends the following:
2
3     Committee Substitute
4     Remove the entire bill and insert:
5
A bill to be entitled
6An act relating to transportation; amending s. 20.23,
7F.S.; authorizing the secretary of the Department of
8Transportation to appoint an additional assistant
9secretary and deputy assistant secretaries or directors;
10revising the organization of the department to specify
11areas of program responsibility; authorizing the secretary
12to reorganize offices within the department in
13consultation with the Executive Office of the Governor;
14amending s. 95.361, F.S.; providing that certain filed
15claims shall not affect rights of certain utilities;
16amending s. 110.205, F.S.; conforming provisions relating
17to career service to changes made by the act; amending s.
18334.30, F.S.; revising provisions for public-private
19construction of transportation facilities; providing
20procedures for requests for proposals and receipt of
21unsolicited proposals by the department; providing for use
22of certain funds under described conditions; amending s.
23337.401, F.S.; exempting certain electric utilities from
24the application of certain permit-delegation agreements
25between the department and other governmental entities;
26amending s. 348.0004, F.S.; revising purposes and powers
27of expressway authorities; providing legislative
28declaration of public need; removing an obsolete provision
29related to expressway authorities entering into public-
30private transportation partnerships; providing for
31expressway authorities to enter into partnerships with
32private entities; providing procedures for requests for
33proposals and receipt of unsolicited proposals;
34authorizing expressway authorities to adopt rules
35concerning public-private partnerships; specifying public
36notice requirements; providing criteria for project
37approval; requiring certain costs be borne by the private
38entity; authorizing the department to loan funds from the
39Toll Facilities Revolving Loan Trust Fund under certain
40conditions; authorizing public-private entities to impose
41tolls; providing for regulation of the amount and use of
42the tolls by the expressway authority; specifying project
43requirements; authorizing the expressway authority to
44facilitate partnership projects; providing legislative
45intent concerning existing laws and powers of expressway
46authorities; providing an effective date.
47
48Be It Enacted by the Legislature of the State of Florida:
49
50     Section 1.  Paragraph (d) of subsection (1), subsection
51(3), and paragraph (b) of subsection (4) of section 20.23,
52Florida Statutes, are amended to read:
53     20.23  Department of Transportation.--There is created a
54Department of Transportation which shall be a decentralized
55agency.
56     (1)
57     (d)  The secretary may shall appoint up to three two
58assistant secretaries who shall be directly responsible to the
59secretary and who shall perform such duties as are assigned by
60the secretary. The secretary may delegate to any assistant
61secretary the authority to act in the absence of the secretary.
62     (3)(a)  The central office shall establish departmental
63policies, rules, procedures, and standards and shall monitor the
64implementation of such policies, rules, procedures, and
65standards in order to ensure uniform compliance and quality
66performance by the districts and central office units that
67implement transportation programs.  Major transportation policy
68initiatives or revisions shall be submitted to the commission
69for review.
70     (b)  The secretary shall appoint an Assistant Secretary for
71Transportation Development and Operations and an Assistant
72Secretary for Transportation Support.
73     (b)(c)  The secretary may appoint positions at the level of
74deputy assistant secretary or director which the secretary deems
75necessary to accomplish the mission and goals of the department,
76including, but not limited to, the areas of program
77responsibility provided in this paragraph following offices are
78established and shall be headed by a manager, each of whom shall
79be appointed by and serve at the pleasure of the secretary. The
80secretary may combine, separate, or abolish offices as needed in
81consultation with the Executive Office of the Governor. The
82department's areas of program responsibility include, but are
83not limited to positions shall be classified at a level equal to
84a division director:
85     1.  The Office of Administration.;
86     2.  The Office of Planning. and Environmental Management;
87     3.  Public transportation.
88     4.3.  The Office of Design.;
89     5.4.  The Office of Highway operations.;
90     6.5.  The Office of Right-of-way.;
91     7.6.  The Office of Toll operations.;
92     8.7.  The Office of Information systems.;
93     9.8.  The Office of Motor carrier compliance.;
94     10.9.  The Office of Management and budget.;
95     11.10.  The Office of Comptroller.;
96     12.11.  The Office of Construction.;
97     13.12.  The Office of Maintenance.; and
98     14.13.  The Office of Materials.
99     (c)(d)  Other offices may be established in accordance with
100s. 20.04(7). The heads of such offices are exempt from part II
101of chapter 110. No office or organization shall be created at a
102level equal to or higher than a division without specific
103legislative authority.
104     (d)(e)  The secretary shall appoint an inspector general
105pursuant to s. 20.055 who shall be directly responsible to the
106secretary and shall serve at the pleasure of the secretary.
107     (e)(f)  The secretary shall appoint a general counsel who
108shall be directly responsible to the secretary. The general
109counsel is responsible for all legal matters of the department.
110The department may employ as many attorneys as it deems
111necessary to advise and represent the department in all
112transportation matters.
113     (g)  The secretary shall appoint a state transportation
114development administrator. This position shall be classified at
115a level equal to a deputy assistant secretary.
116     (h)  The secretary shall appoint a state transportation
117operations administrator. This position shall be classified at a
118level equal to a deputy assistant secretary.
119     (i)  The secretary shall appoint a state public
120transportation and modal administrator. This position shall be
121classified at a level equal to a deputy assistant secretary.
122     (4)
123     (b)  Each district secretary may appoint up to three a
124district directors director for transportation development, a
125district director for transportation operations, and a district
126director for transportation support or, until July 1, 2005, each
127district secretary may appoint up to four a district directors
128director for planning and programming, a district director for
129production, a district director for operations, and a district
130director for administration. These positions are exempt from
131part II of chapter 110.
132     Section 2.  Section 95.361, Florida Statutes, is amended to
133read:
134     95.361  Roads presumed to be dedicated.--
135     (1)  When a road, constructed by a county, a municipality,
136or the Department of Transportation, has been maintained or
137repaired continuously and uninterruptedly for 4 years by the
138county, municipality, or the Department of Transportation,
139jointly or severally, the road shall be deemed to be dedicated
140to the public to the extent in width that has been actually
141maintained for the prescribed period, whether or not the road
142has been formally established as a public highway. The
143dedication shall vest all right, title, easement, and
144appurtenances in and to the road in:
145     (a)  The county, if it is a county road;
146     (b)  The municipality, if it is a municipal street or road;
147or
148     (c)  The state, if it is a road in the State Highway System
149or State Park Road System,
150
151whether or not there is a record of a conveyance, dedication, or
152appropriation to the public use.
153     (2)  In those instances where a road has been constructed
154by a nongovernmental entity, or where the road was not
155constructed by the entity currently maintaining or repairing it,
156or where it cannot be determined who constructed the road, and
157when such road has been regularly maintained or repaired for the
158immediate past 7 years by a county, a municipality, or the
159Department of Transportation, whether jointly or severally, such
160road shall be deemed to be dedicated to the public to the extent
161of the width that actually has been maintained or repaired for
162the prescribed period, whether or not the road has been formally
163established as a public highway. This subsection shall not apply
164to an electric utility, as defined in s. 366.02(2). The
165dedication shall vest all rights, title, easement, and
166appurtenances in and to the road in:
167     (a)  The county, if it is a county road;
168     (b)  The municipality, if it is a municipal street or road;
169or
170     (c)  The state, if it is a road in the State Highway System
171or State Park Road System, whether or not there is a record of
172conveyance, dedication, or appropriation to the public use.
173     (3)  The filing of a map in the office of the clerk of the
174circuit court of the county where the road is located showing
175the lands and reciting on it that the road has vested in the
176state, a county, or a municipality in accordance with subsection
177(1) or subsection (2) or by any other means of acquisition, duly
178certified by:
179     (a)  The secretary of the Department of Transportation, or
180the secretary's designee, if the road is a road in the State
181Highway System or State Park Road System;
182     (b)  The chair and clerk of the board of county
183commissioners of the county, if the road is a county road; or
184     (c)  The mayor and clerk of the municipality, if the road
185is a municipal road or street,
186
187shall be prima facie evidence of ownership of the land by the
188state, county, or municipality, as the case may be.
189     (4)  Any person, firm, corporation, or entity having or
190claiming any interest in and to any of the property affected by
191subsection (2) shall have and is hereby allowed a period of 1
192year after the effective date of this subsection, or a period of
1937 years after the initial date of regular maintenance or repair
194of the road, whichever period is greater, to file a claim in
195equity or with a court of law against the particular governing
196authority assuming jurisdiction over such property to cause a
197cessation of the maintenance and occupation of the property.
198Such timely filed and adjudicated claim shall prevent the
199dedication of the road to the public pursuant to subsection (2).
200     (5)  Nothing in this section shall negate or affect the
201rights of a public utility with facilities on the property
202affected by this section.
203     Section 3.  Paragraphs (j) and (m) of subsection (2) of
204section 110.205, Florida Statutes, are amended to read:
205     110.205  Career service; exemptions.--
206     (2)  EXEMPT POSITIONS.--The exempt positions that are not
207covered by this part include the following:
208     (j)  The appointed secretaries, assistant secretaries,
209deputy secretaries, and deputy assistant secretaries of all
210departments; the executive directors, assistant executive
211directors, deputy executive directors, and deputy assistant
212executive directors of all departments; the directors of all
213divisions and those positions determined by the department to
214have managerial responsibilities comparable to such positions,
215which positions include, but are not limited to, program
216directors, assistant program directors, district administrators,
217deputy district administrators, the Director of Central
218Operations Services of the Department of Children and Family
219Services, the State Transportation Development Administrator,
220State Public Transportation and Modal Administrator, district
221secretaries, district directors of transportation development,
222transportation operations, transportation support, and the
223managers of the offices specified in s. 20.23(3)(b) s.
22420.23(3)(c), of the Department of Transportation. Unless
225otherwise fixed by law, the department shall set the salary and
226benefits of these positions in accordance with the rules of the
227Senior Management Service; and the county health department
228directors and county health department administrators of the
229Department of Health.
230     (m)  All assistant division director, deputy division
231director, and bureau chief positions in any department, and
232those positions determined by the department to have managerial
233responsibilities comparable to such positions, which positions
234include, but are not limited to:
235     1.  Positions in the Department of Health and the
236Department of Children and Family Services that are assigned
237primary duties of serving as the superintendent or assistant
238superintendent of an institution.
239     2.  Positions in the Department of Corrections that are
240assigned primary duties of serving as the warden, assistant
241warden, colonel, or major of an institution or that are assigned
242primary duties of serving as the circuit administrator or deputy
243circuit administrator.
244     3.  Positions in the Department of Transportation that are
245assigned primary duties of serving as regional toll managers and
246managers of offices as defined in s. 20.23(3)(b) s. 20.23(3)(c)
247and (4)(d), and captains and majors of the Office of Motor
248Carrier Compliance.
249     4.  Positions in the Department of Environmental Protection
250that are assigned the duty of an Environmental Administrator or
251program administrator.
252     5.  Positions in the Department of Health that are assigned
253the duties of Environmental Administrator, Assistant County
254Health Department Director, and County Health Department
255Financial Administrator.
256
257Unless otherwise fixed by law, the department shall set the
258salary and benefits of the positions listed in this paragraph in
259accordance with the rules established for the Selected Exempt
260Service.
261     Section 4.  Section 334.30, Florida Statutes, is amended to
262read:
263     334.30  Public-private Private transportation facilities.--
264The Legislature hereby finds and declares that there is a public
265need for rapid construction of safe and efficient transportation
266facilities for the purpose of travel within the state, and that
267it is in the public's interest to provide for the construction
268of additional safe, convenient, and economical transportation
269facilities.
270     (1)  The department may receive or solicit proposals and,
271with legislative approval by a separate bill for each facility,
272enter into agreements with private entities, or consortia
273thereof, for the building, operation, ownership, or financing of
274transportation facilities. The department may adopt rules
275pursuant to ss. 120.536(1) and 120.54 to implement this section
276and shall by rule establish an application fee for the
277submission of proposals under this section. The fee must be
278sufficient to pay the costs of evaluating the proposals. The
279department may engage the services of private consultants to
280assist in the evaluation. Before seeking legislative approval,
281the department must determine that the proposed project:
282     (a)  Is in the public's best interest;
283     (b)  Would not require state funds to be used unless the
284project is on the State Highway System there is an overriding
285state interest; and
286     (c)  Would have adequate safeguards in place to ensure that
287no additional costs or service disruptions would be realized by
288the traveling public and citizens of the state in the event of
289default or cancellation of the agreement by the department.
290
291The department shall ensure that all reasonable costs to the
292state and substantially affected local governments and
293utilities, related to the private transportation facilities that
294are not part of the State Highway System facility, are borne by
295the private entity. The department shall also ensure that all
296reasonable costs to the state and substantially affected local
297governments and utilities, related to the private transportation
298facility, are borne by the private entity for transportation
299facilities that are owned by private entities. For projects on
300the State Highway System, the department may use state resources
301to participate in funding and financing the project as provided
302for under the department's enabling legislation.
303     (2)  Agreements entered into pursuant to this section may
304authorize the private entity to impose tolls or fares for the
305use of the facility. However, the amount and use of toll or fare
306revenues may be regulated by the department to avoid
307unreasonable costs to users of the facility.
308     (3)  Each private transportation facility constructed
309pursuant to this section shall comply with all requirements of
310federal, state, and local laws; state, regional, and local
311comprehensive plans; department rules, policies, procedures, and
312standards for transportation facilities; and any other
313conditions which the department determines to be in the public's
314best interest.
315     (4)  The department may exercise any power possessed by it,
316including eminent domain, with respect to the development and
317construction of state transportation projects to facilitate the
318development and construction of transportation projects pursuant
319to this section. The department may provide services to the
320private entity. Agreements for maintenance, law enforcement, and
321other services entered into pursuant to this section shall
322provide for full reimbursement for services rendered for
323projects not on the State Highway System.
324     (5)  Except as herein provided, the provisions of this
325section are not intended to amend existing laws by granting
326additional powers to, or further restricting, local governmental
327entities from regulating and entering into cooperative
328arrangements with the private sector for the planning,
329construction, and operation of transportation facilities.
330     (6)  The department may request proposals from private
331entities for public-private transportation projects or, if the
332department receives an unsolicited proposal, the department
333shall publish a notice in the Florida Administrative Weekly and
334a newspaper of general circulation at least once a week for 2
335weeks stating that the department has received the proposal and
336will accept, for 60 days after the initial date of publication,
337other proposals for the same project purpose. A copy of the
338notice must be mailed to each local government in the affected
339area. The department shall employ the provisions of ss. 812.081
340and 815.045, as required and as appropriate to ensure a fair,
341competitive process during the public notification period. After
342the public notification period has expired, the department shall
343rank the proposals in order of preference. In ranking the
344proposals, the department may consider factors including, but
345not limited to, professional qualifications, general business
346terms, innovative engineering or cost-reduction terms, finance
347plans, and the need for state funds to deliver the project. If
348the department is not satisfied with the results of the
349negotiations, the department may, at its sole discretion,
350terminate negotiations with the proposer. If these negotiations
351are unsuccessful, the department may go to the second-ranked and
352lower-ranked firms, in order, using this same procedure. If only
353one proposal is received, the department may negotiate in good
354faith and, if the department is not satisfied with the results
355of the negotiations, the department may, at its sole discretion,
356terminate negotiations with the proposer. Notwithstanding this
357subsection, the department may, at its discretion, reject all
358proposals at any point in the process up to completion of a
359contract with the proposer.
360     (7)  The department may lend funds from the Toll Facilities
361Revolving Trust Fund as outlined in s. 338.251 or from the State
362Infrastructure Bank as provided in s. 215.617 to private
363entities that construct projects on the State Highway System
364containing toll facilities that are approved under this section.
365To be eligible, a private entity must comply with s. 338.251 and
366must provide an indication from a nationally recognized rating
367agency that the senior bonds for the project will be investment
368grade or provide credit support, such as a letter of credit or
369other means acceptable to the department, to ensure that the
370loans will be fully repaid. The state's liability for funding of
371a facility is limited to the amount approved for that specific
372facility in the department's 5-year work program adopted
373pursuant to s. 339.135.
374     (8)(6)  A fixed-guideway transportation system authorized
375by the department to be wholly or partially within the
376department's right-of-way pursuant to a lease granted under s.
377337.251 may operate at any safe speed.
378     Section 5.  Subsection (1) of section 337.401, Florida
379Statutes, is amended to read:
380     337.401  Use of right-of-way for utilities subject to
381regulation; permit; fees.--
382     (1)  The department and local governmental entities,
383referred to in ss. 337.401-337.404 as the "authority," that have
384jurisdiction and control of public roads or publicly owned rail
385corridors are authorized to prescribe and enforce reasonable
386rules or regulations with reference to the placing and
387maintaining along, across, or on any road or publicly owned rail
388corridors under their respective jurisdictions any electric
389transmission, telephone, telegraph, or other communications
390services lines; pole lines; poles; railways; ditches; sewers;
391water, heat, or gas mains; pipelines; fences; gasoline tanks and
392pumps; or other structures hereinafter referred to as the
393"utility." The department may enter into a permit-delegation
394agreement with a governmental entity if issuance of a permit is
395based on requirements that the department finds will ensure the
396safety and integrity of facilities of the Department of
397Transportation; however, such permit-delegation agreement shall
398not apply to facilities of electric utilities as defined in s.
399366.02(2).
400     Section 6.  Paragraph (m) of subsection (2) of section
401348.0004, Florida Statutes, is amended, and subsection (9) is
402added to said section, to read:
403     348.0004  Purposes and powers.--
404     (2)  Each authority may exercise all powers necessary,
405appurtenant, convenient, or incidental to the carrying out of
406its purposes, including, but not limited to, the following
407rights and powers:
408     (m)  An expressway authority in any county as defined in s.
409125.011(1) may consider any unsolicited proposals from private
410entities and all factors it deems important in evaluating such
411proposals. Such an expressway authority shall adopt rules or
412policies in compliance with s. 334.30 for the receipt,
413evaluation, and consideration of such proposals in order to
414enter into agreements for the planning design, engineering,
415construction, operation, ownership, or financing of additional
416expressways in that county. Such rules must require
417substantially similar technical information as is required by
418rule 14-107.0011(3)(a)-(e), Florida Administrative Code. In
419accepting a proposal and entering into such an agreement, the
420expressway authority and the private entity shall for all
421purposes be deemed to have complied with chapters 255 and 287.
422Similar proposals shall be reviewed and acted on by the
423authority in the order in which they were received. An
424additional expressway may not be constructed under this section
425without the prior express written consent of the board of county
426commissioners of each county located within the geographical
427boundaries of the authority. The powers granted by this section
428are in addition to all other powers of the authority granted by
429this chapter.
430     (9)  The Legislature declares that there is a public
431need for rapid construction of safe and efficient
432transportation facilities for travel within the state and that
433it is in the public interest to provide for public-private
434partnership agreements to effectuate the construction of
435additional safe, convenient, and economical transportation
436facilities.
437     (a)  Any expressway authority may receive or solicit
438proposals and enter into agreements with private entities, or
439consortia thereof, for the building, operation, ownership, or
440financing of expressway authority transportation facilities or
441new transportation facilities within the jurisdiction of the
442expressway authority. An expressway authority is authorized to
443adopt rules pursuant to ss. 120.536(1) and 120.54 to implement
444this subsection and shall, by rule, establish an application fee
445for the submission of unsolicited proposals under this
446subsection. The fee must be sufficient to pay the costs of
447evaluating the proposals. An expressway authority may engage
448private consultants to assist in the evaluation. Before
449approval, an expressway authority must determine that a proposed
450project:
451     1.  Is in the public's best interest.
452     2.  Would not require state funds to be used unless the
453project is on or provides increased mobility on the State
454Highway System.
455     3.  Would have adequate safeguards to ensure that no
456additional costs or service disruptions would be realized by the
457traveling public and citizens of the state in the event of
458default or the cancellation of the agreement by the expressway
459authority.
460     (b)  The expressway authority shall ensure that all
461reasonable costs to the state, related to transportation
462facilities that are not part of the State Highway System, are
463borne by the private entity. The expressway authority shall also
464ensure that all reasonable costs to the state and substantially
465affected local governments and utilities, related to the private
466transportation facility, are borne by the private entity for
467transportation facilities that are owned by private entities.
468For projects on the State Highway System, the department may use
469state resources to participate in funding and financing the
470project as provided for under the department's enabling
471legislation.
472     (c)  The expressway authority may request proposals for
473public-private transportation projects or, if it receives an
474unsolicited proposal, it must publish a notice in the Florida
475Administrative Weekly and a newspaper of general circulation in
476the county in which it is located at least once a week for 2
477weeks stating that it has received the proposal and will accept,
478for 60 days after the initial date of publication, other
479proposals for the same project purpose. A copy of the notice
480must be mailed to each local government in the affected areas.
481The expressway authority shall employ the provisions of ss.
482812.081 and 815.045 as required and as appropriate to ensure a
483fair, competitive process during the public notification period.
484After the public notification period has expired, the expressway
485authority shall rank the proposals in order of preference. In
486ranking the proposals, the expressway authority shall consider
487professional qualifications, general business terms, innovative
488engineering or cost-reduction terms, finance plans, and the need
489for state funds to deliver the proposal. If the expressway
490authority is not satisfied with the results of the negotiations,
491it may, at its sole discretion, terminate negotiations with the
492proposer. If these negotiations are unsuccessful, the expressway
493authority may go the second and lower-ranked firms, in order,
494using the same procedure. If only one proposal is received, the
495expressway authority may negotiate in good faith and, if it is
496not satisfied with the results, it may, at its sole discretion,
497terminate negotiations with the proposer. Notwithstanding this
498paragraph, the expressway authority may, at its discretion,
499reject all proposals at any point in the process up to
500completion of a contract with the proposer.
501     (d)  The department may lend funds from the Toll Facilities
502Revolving Trust Fund, as outlined in s. 338.251, to public-
503private partnerships. To be eligible, a private entity must
504comply with s. 338.251 and must provide an indication from a
505nationally recognized rating agency that the senior bonds for
506the project will be investment grade or provide credit support,
507such as a letter of credit or other means acceptable to the
508department, to ensure that the loans will be fully repaid.
509     (e)  Agreements entered into pursuant to this subsection
510may authorize the public-private entity to impose tolls or fares
511for the use of the facility; however, the amount and use of toll
512or fare revenues may be regulated by the expressway authority to
513avoid unreasonable costs to users of the facility.
514     (f)  Each public-private transportation facility
515constructed pursuant to this subsection shall comply with all
516requirements of federal, state, and local laws; state, regional,
517and local comprehensive plans; the expressway authority's rules,
518policies, procedures, and standards for transportation
519facilities; and any other conditions that the expressway
520authority determines to be in the public's best interest.
521     (g)  An expressway authority may exercise any power
522possessed by it, including eminent domain, to facilitate the
523development and construction of transportation projects pursuant
524to this subsection. An expressway authority may pay all or part
525of the cost of operating and maintaining the facility or may
526provide services to the private entity for which it receives
527full or partial reimbursement for services rendered.
528     (h)  Except as otherwise provided in this subsection, this
529subsection is not intended to amend existing laws by granting
530additional powers to governmental entities for or further
531restrict governmental entities from regulating transportation
532facilities and entering into cooperative arrangements with the
533private sector for the planning, construction, and operation of
534transportation facilities.
535     Section 7.  This act shall take effect upon becoming a law.


CODING: Words stricken are deletions; words underlined are additions.