Senate Bill sb2938

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    Florida Senate - 2004                                  SB 2938

    By Senator Saunders





    37-1583-04                                         See HB 1615

  1                      A bill to be entitled

  2         An act relating to Southwest Florida

  3         transportation; creating pt. X of ch. 348,

  4         F.S., consisting of ss. 348.993, 348.9931,

  5         348.9932, 348.9933, 348.9934, 348.9935,

  6         348.9936, 348.9937, 348.9938, 348.9939,

  7         348.994, 348.9941, 348.9942, 348.9943,

  8         348.9944, 348.9945, and 348.9946, F.S., titled

  9         "Southwest Florida Expressway Authority";

10         providing a popular name; providing

11         definitions; creating the Southwest Florida

12         Expressway Authority; providing for a governing

13         body of the authority; providing for

14         membership; providing purposes and powers;

15         providing for the Southwest Florida

16         Transportation System; providing for

17         procurement; providing bond financing authority

18         for improvements; providing for bonds of the

19         authority; providing for fiscal agents;

20         providing the State Board of Administration may

21         act as fiscal agent; providing for certain

22         financial agreements; providing for rights and

23         remedies of bondholders; providing for

24         lease-purchase agreement with the Department of

25         Transportation; providing the department may be

26         appointed agent of authority for construction;

27         providing for acquisition of lands and

28         property; providing for cooperation with other

29         units, boards, agencies, and individuals;

30         providing covenant of the state; providing for

31         exemption from taxation; providing for

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    Florida Senate - 2004                                  SB 2938
    37-1583-04                                         See HB 1615




 1         eligibility for investments and security;

 2         providing pledges shall be enforceable by

 3         bondholders; providing for construction and

 4         application; providing for future expiration of

 5         the act; providing for an appropriation;

 6         providing a contingent effective date.

 7  

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

 9  

10         Section 1.  Part X of chapter 348, Florida Statutes,

11  consisting of sections 348.993, 348.9931, 348.9932, 348.9933,

12  348.9934, 348.9935, 348.9936, 348.9937, 348.9938, 348.9939,

13  348.994, 348.9941, 348.9942, 348.9943, 348.9944, 348.9945, and

14  348.9946, is created to read:

15                              Part X

16              Southwest Florida Expressway Authority

17         348.993  Popular name.--This part may be referred to by

18  the popular name the "Southwest Florida Expressway Authority

19  Law."

20         348.9931  Definitions.--The following terms, whenever

21  used or referred to in this part, shall have the following

22  meanings, except in those instances where the context clearly

23  indicates otherwise:

24         (1)  "Agency of the state" means and includes the state

25  and any department of, or corporation, agency, or

26  instrumentality heretofore or hereafter created, designated,

27  or established by, the state.

28         (2)  "Authority" means the body politic and corporate,

29  and agency of the state, created by this part.

30         (3)  "Bonds" means and includes the notes, bonds,

31  refunding bonds, or other evidences of indebtedness or

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    Florida Senate - 2004                                  SB 2938
    37-1583-04                                         See HB 1615




 1  obligations, in either temporary or definitive form, which the

 2  authority is authorized to issue pursuant to this part.

 3         (4)  "County" means the Counties of Collier and Lee.

 4         (5)  "DBOM contract" means the document and all

 5  concomitant rights approved by the authority providing the

 6  selected person or entity the exclusive right to design,

 7  build, operate, and maintain the Southwest Florida

 8  Transportation System.

 9         (6)  "DBOMF contract" means the document and all

10  concomitant rights approved by the authority providing the

11  selected person or entity the exclusive right to design,

12  build, operate, maintain, and finance all or a portion of the

13  Southwest Florida Transportation System.

14         (7)  "Department" means the Department of

15  Transportation existing under chapters 334-339.

16         (8)  "Expressway" is the same as limited access

17  expressway.

18         (9)  "Federal agency" means and includes the United

19  States, the President of the United States, or any department

20  of, or corporation, agency, or instrumentality heretofore or

21  hereafter created, designated, or established by, the United

22  States.

23         (10)  "Lease-purchase agreement" means the

24  lease-purchase agreements which the authority is authorized

25  pursuant to this part to enter into with the Department of

26  Transportation.

27         (11)  "Limited access expressway" means a street or

28  highway especially designed for through traffic and over,

29  from, or to which no person shall have the right of easement,

30  use, or access except in accordance with the rules and

31  regulations promulgated and established by the authority for

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    Florida Senate - 2004                                  SB 2938
    37-1583-04                                         See HB 1615




 1  the use of such facility. Such highways or streets may be

 2  parkways, from which trucks, buses, and other commercial

 3  vehicles shall be excluded, or they may be freeways open to

 4  use by all customary forms of street and highway traffic.

 5         (12)  "Members" means the governing body of the

 6  authority, and the term "member" means one of the individuals

 7  constituting such governing body.

 8         (13)  "Proposed project" means a facility which, if

 9  constructed, will become part of the Southwest Florida

10  Transportation System, and it shall identify the general

11  corridor and alignment of the facility and its limits.

12  Further, it shall mean a project or projects which are in the

13  long-range transportation plan of Lee County or Collier

14  County, or both plans if the proposed project is to be located

15  in both counties.

16         (14)  "Southwest Florida Transportation System" means

17  any and all expressways and appurtenant facilities thereto,

18  including, but not limited to, all approaches, roads, bridges,

19  and avenues of access for said expressway or expressways,

20  whether tolled or nontolled, or such other facility as the

21  authority determines or designates.

22         (15)  "State Board of Administration" means the body

23  corporate existing under the provisions of s. 9, Art. XII of

24  the State Constitution, or any successor thereto.

25         (16)  "System" means the Southwest Florida

26  Transportation System.

27  

28  Words importing singular number include the plural number in

29  each case and vice versa, and words importing persons include

30  firms and corporations.

31         348.9932  Southwest Florida Expressway Authority.--

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    Florida Senate - 2004                                  SB 2938
    37-1583-04                                         See HB 1615




 1         (1)  There is hereby created and established a body

 2  politic and corporate, an agency of the state, encompassing

 3  Collier and Lee Counties, to be known as the Southwest Florida

 4  Expressway Authority, hereinafter referred to as the

 5  "authority."

 6         (2)  The governing body of the authority shall consist

 7  of seven voting members and one nonvoting member, as set forth

 8  in this subsection.

 9         (a)1.a.  One member who is a permanent resident of

10  Collier County and one member who is a permanent resident of

11  Lee County shall be appointed by the Governor to serve a term

12  of 4 years each. The Governor shall select his appointees from

13  a list submitted by the board of county commissioners of each

14  county, with each list recommending five candidates from their

15  respective county.

16         b.  One member who is a permanent resident of Collier

17  County shall be appointed by the Board of County Commissioners

18  of Collier County and one member who is a permanent resident

19  of Lee County shall be appointed by the Board of County

20  Commissioners of Lee County, to serve a term of 4 years each.

21         2.  Each member appointed under this paragraph shall be

22  a person of outstanding reputation for integrity,

23  responsibility, and business ability and shall have an

24  interest in ground transportation. No elected official and no

25  person who is an employee, in any capacity, of Collier County

26  or Lee County or of any municipality within Collier County or

27  Lee County shall be an appointed member of the authority

28  except as set forth in this section.

29         3.  Each appointed member shall be a resident of his or

30  her respective county during his or her entire term.

31  

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    Florida Senate - 2004                                  SB 2938
    37-1583-04                                         See HB 1615




 1         4.  Each appointed member shall be a voting member and

 2  shall hold office until his or her successor has been

 3  appointed and has qualified. A vacancy occurring during a term

 4  shall be filled only for the remainder of the unexpired term.

 5         (b)  One member from Collier County and one member from

 6  Lee County shall be selected by the members of the respective

 7  county commission from among its members to serve as a voting

 8  member for a term of 2 years each. Each commissioner must be a

 9  member of the county commission when selected and for the full

10  extent of the term of this selection.

11         (c)  The executive director of the Southwest Florida

12  Regional Planning Council shall serve as the seventh voting

13  member.

14         (d)  The district secretary of the Department of

15  Transportation serving in the district that contains Collier

16  County and Lee County shall serve as a nonvoting member.

17         (e)  Any member of the authority shall be eligible for

18  reappointment.

19         (3)(a)  The authority shall elect one of its members as

20  chair of the authority. The authority shall also elect a

21  secretary and a treasurer who may or may not be members of the

22  authority. The chair, secretary, and treasurer shall hold such

23  offices at the will of the authority. Four members of the

24  authority shall constitute a quorum, and a vote of the

25  majority of those present shall be necessary for any action

26  taken by the authority. No vacancy in the authority shall

27  impair the right of a quorum of the authority to exercise all

28  of the rights and perform all of the duties of the authority.

29         (b)  Upon the effective date of his or her appointment,

30  or as soon thereafter as practicable, each appointed member of

31  the authority shall enter upon his or her duties.

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    Florida Senate - 2004                                  SB 2938
    37-1583-04                                         See HB 1615




 1         (4)(a)  The authority may employ an executive director,

 2  its own counsel and legal staff, technical experts, engineers,

 3  and such employees, permanent or temporary, as it may require;

 4  may determine the qualifications and fix the compensation of

 5  such persons, firms, or corporations; and may employ a fiscal

 6  agent or agents. The authority may delegate to one or more of

 7  its agents or employees such of its power as it shall deem

 8  necessary to carry out the purposes of this part, subject

 9  always to the supervision and control of the authority.

10  Members of the authority may be removed from office by the

11  Governor for misconduct, malfeasance, misfeasance, or

12  nonfeasance in office.

13         (b)  Members of the authority shall be entitled to

14  receive from the authority their travel and other necessary

15  expenses incurred in connection with the business of the

16  authority as provided in s. 112.061, but they shall draw no

17  salaries or other compensation.

18         348.9933  Purposes and powers.--

19         (1)(a)  The authority created and established by the

20  provisions of this part is hereby granted and shall have the

21  right to acquire, hold, construct, improve, maintain, operate,

22  own, and lease, in the capacity of lessor, the Southwest

23  Florida Transportation System, hereinafter referred to as the

24  "system."

25         (b)  It is the express intention of this part that said

26  authority, in the construction of said Southwest Florida

27  Transportation System, within the geographic boundaries of

28  Collier and Lee Counties, is limited to the pursuit of tolled

29  expressway lanes on Interstate Highway 75 within these

30  counties. Further, the authority shall be authorized to

31  construct any extensions, additions, or improvements to said

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    Florida Senate - 2004                                  SB 2938
    37-1583-04                                         See HB 1615




 1  system or appurtenant facilities, including all necessary

 2  approaches, roads, bridges, and avenues of access, with such

 3  changes, modifications, or revisions of said project as shall

 4  be deemed desirable and proper with the concurrence of the

 5  respective county commissions. The responsibilities of the

 6  authority will not be expanded to cover any other projects

 7  beyond Interstate 75 toll lanes and appurtenant facilities

 8  unless resolutions in support of such expansion or other

 9  project are adopted by the Boards of County Commissioners of

10  Lee and Collier Counties.

11         (2)  The authority is hereby granted and shall have and

12  may exercise all powers necessary, appurtenant, convenient, or

13  incidental to the carrying out of the aforesaid purposes,

14  including, but not limited to, the following rights and

15  powers:

16         (a)  To sue and be sued, implead and be impleaded,

17  complain, and defend in all courts.

18         (b)  To adopt, use, and alter at will a corporate seal.

19         (c)  To acquire by donation or otherwise, purchase,

20  hold, lease as lessee, and use any franchise or property,

21  real, personal, or mixed, tangible or intangible, or any

22  options thereof in its own name or in conjunction with others,

23  or interest therein, necessary or desirable for carrying out

24  the purposes of the authority, and to sell, lease as lessor,

25  transfer, and dispose of any property or interest therein at

26  any time acquired by it.

27         (d)  To enter into and make leases for terms it deems

28  necessary, as either lessee or lessor, in order to carry out

29  the right to lease as set forth in this part.

30         (e)  To enter into and make lease-purchase agreements

31  with the department for terms it deems necessary or until any

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    Florida Senate - 2004                                  SB 2938
    37-1583-04                                         See HB 1615




 1  bonds secured by a pledge of rentals thereunder, and any

 2  refundings thereof, are fully paid as to both principal and

 3  interest, whichever is longer.

 4         (f)  To fix, alter, charge, establish, and collect

 5  rates, fees, rentals, and other charges for the services and

 6  facilities of the Southwest Florida Transportation System,

 7  which rates, fees, rentals, and other charges shall always be

 8  sufficient to comply with any covenants made with the holders

 9  of any bonds issued pursuant to this part; provided, however,

10  that such right and power may be assigned or delegated, by the

11  authority, to the department.

12         (g)  To borrow money and make and issue negotiable

13  notes, bonds, refunding bonds, and other evidences of

14  indebtedness or obligations, either in temporary or definitive

15  form, hereinafter in this part sometimes called "bonds" of the

16  authority, for the purpose of financing all or part of the

17  improvement or extension of the Southwest Florida

18  Transportation System and appurtenant facilities, including

19  all approaches, streets, roads, bridges, and avenues of access

20  for said Southwest Florida Transportation System, and for any

21  other purpose authorized by this part; to secure the payment

22  of such bonds or any part thereof by a pledge of any or all of

23  its revenues, rates, fees, rentals, or other charges; and in

24  general to provide for the security of said bonds and the

25  rights and remedies of the holders thereof. The authority may

26  enter into an agreement between the authority and one or more

27  counties for the pledge of county gasoline tax funds, county

28  sales tax, or other county revenues to secure any bonds issued

29  for an authority project as authorized hereunder. In the event

30  the authority shall determine to fund or refund any bonds

31  theretofore issued by said authority, prior to the maturity

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    Florida Senate - 2004                                  SB 2938
    37-1583-04                                         See HB 1615




 1  thereof, the proceeds of such funding or refunding bonds

 2  shall, pending the prior redemption of the bonds to be funded

 3  or refunded, be invested in direct obligations of the United

 4  States, and it is the express intention of this part that such

 5  outstanding bonds may be funded or refunded by the issuance of

 6  bonds pursuant to this part.

 7         (h)  To make contracts of every name and nature,

 8  including, but not limited to, partnerships providing for

 9  participation in ownership and revenues, and to execute all

10  instruments necessary or convenient for the carrying on of its

11  business.

12         (i)  Without limitation of the foregoing, to borrow

13  money and accept grants from, and to enter into contracts,

14  leases, or other transactions with, any federal agency, the

15  state, any agency of the state, Collier County, Lee County,

16  and any municipality within these two counties or with any

17  other public body of the state.

18         (j)  To have the power of eminent domain, including the

19  procedural powers granted under chapters 73 and 74.

20         (k)  To pledge, hypothecate, or otherwise encumber all

21  or any part of the revenues, rates, fees, rentals, or other

22  charges or receipts of the authority as security for all or

23  any of the obligations of the authority.

24         (l)  To do all acts and things necessary or convenient

25  for the conduct of its business and the general welfare of the

26  authority in order to carry out the powers granted to it by

27  this part or any other law.

28         (m)  With the consent of the county within whose

29  jurisdiction the following activities occur, to construct,

30  operate, and maintain roads, bridges, avenues of access,

31  thoroughfares, and boulevards outside the jurisdictional

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    Florida Senate - 2004                                  SB 2938
    37-1583-04                                         See HB 1615




 1  boundaries of Collier and Lee Counties, together with the

 2  right to construct, repair, replace, operate, install, and

 3  maintain toll payment systems thereon, with all necessary and

 4  incidental powers to accomplish the foregoing.

 5         (3)  The authority shall have no power at any time or

 6  in any manner to pledge the credit or taxing power of the

 7  state or any political subdivision or agency thereof,

 8  including Collier and Lee Counties or any municipality within

 9  these counties, nor shall any of the authority's obligations

10  be deemed to be obligations of the state or of any political

11  subdivision or agency thereof, nor shall the state or any

12  political subdivision or agency thereof, except the authority,

13  be liable for the payment of the principal of or interest on

14  such obligations unless agreed to by such entity.

15         (4)  Notwithstanding powers conferred herein, before

16  the authority proceeds with a proposed project either the Lee

17  County Commission or Collier County Commission must approve

18  any proposed project for the system which may be located

19  within the geographical boundaries of that commission's

20  jurisdiction. A quorum must be present for a vote on approval

21  to take place. Such approval, by a majority vote of those

22  members present, must be obtained before the authority can

23  proceed with the preliminary design and environmental study.

24         (5)  The authority is precluded from involvement with

25  any future development of County Road 951.

26         348.9934  Procurement.--The authority is authorized to

27  procure commodities and the services of a qualified person or

28  entity to design, build, finance, operate, maintain, and

29  implement the Southwest Florida Transportation System,

30  including the use of a DBOM or DBOMF method using a request

31  

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    Florida Senate - 2004                                  SB 2938
    37-1583-04                                         See HB 1615




 1  for proposal, a request for qualifications, or an invitation

 2  to negotiate.

 3         348.9935  Bond financing authority for

 4  improvements.--Pursuant to s. 11(f), Art. VII of the State

 5  Constitution, the Legislature hereby approves for bond

 6  financing by the Southwest Florida Expressway Authority

 7  improvements to toll collection facilities, interchanges to

 8  the legislatively approved regional transportation system, and

 9  any other facility appurtenant, necessary, or incidental to

10  the approved system. Subject to terms and conditions of

11  applicable revenue bond resolutions and covenants, such costs

12  may be financed in whole or in part by revenue bonds issued

13  pursuant to s. 348.9936(1)(a) or (b) whether currently issued

14  or issued in the future, or by a combination of such bonds.

15         348.9936  Bonds of the authority.--

16         (1)(a)  Bonds may be issued on behalf of the authority

17  pursuant to the State Bond Act.

18         (b)  Alternatively, the authority may issue its own

19  bonds pursuant to this part at such times and in such

20  principal amount as, in the opinion of the authority, is

21  necessary to provide sufficient moneys for achieving its

22  purposes; however, such bonds may not pledge the full faith

23  and credit of the state. Bonds issued by the authority

24  pursuant to this paragraph or paragraph (a), whether on

25  original issuance or on refunding, shall be authorized by

26  resolution of the members thereof and may be either term or

27  serial bonds and shall bear such date or dates, mature at such

28  time or times, bear interest at such rate or rates, payable

29  semiannually, be in such denominations, be in such form,

30  either coupon or fully registered, carry such registration,

31  exchangeability, and interchangeability privileges, be payable

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    Florida Senate - 2004                                  SB 2938
    37-1583-04                                         See HB 1615




 1  in such medium of payment and at such place or places, be

 2  subject to such terms of redemption, and be entitled to such

 3  priorities on the revenues, rates, fees, rentals, or other

 4  charges or receipts of the authority, including any other

 5  funds received by the authority pursuant to the terms of any

 6  lease-purchase agreement between the authority and the

 7  department, as such resolution or any resolution subsequent

 8  thereto may provide. The bonds shall be executed either by

 9  manual or facsimile signature by such officers as the

10  authority shall determine, provided that such bonds shall bear

11  at least one signature which is manually executed thereon, and

12  the coupons attached to such bonds shall bear the facsimile

13  signature or signatures of such officer or officers as shall

14  be designated by the authority and shall have the seal of the

15  authority affixed, imprinted, reproduced, or lithographed

16  thereon, all as may be prescribed in such resolution or

17  resolutions.

18         (c)  Bonds issued pursuant to paragraph (a) or

19  paragraph (b) shall be sold at public sale in the same manner

20  provided by the State Bond Act. However, if the authority

21  shall, by official action at a public meeting, determine that

22  a negotiated sale of such bonds is in the best interest of the

23  authority, the authority may negotiate the sale of such bonds

24  with the underwriter or underwriters designated by the

25  authority and the Division of Bond Finance of the State Board

26  of Administration with respect to bonds issued pursuant to

27  paragraph (a) or solely the authority with respect to bonds

28  issued pursuant to paragraph (b). The authority's

29  determination to negotiate the sale of such bonds may be

30  based, in part, upon the written advice of the authority's

31  financial adviser. Pending the preparation of definitive

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    Florida Senate - 2004                                  SB 2938
    37-1583-04                                         See HB 1615




 1  bonds, interim certificates may be issued to the purchaser or

 2  purchasers of such bonds and may contain such terms and

 3  conditions as the authority may determine.

 4         (d)  The authority may issue bonds pursuant to

 5  paragraph (b) to refund any bonds previously issued regardless

 6  of whether the bonds being refunded were issued by the

 7  authority pursuant to this part or on behalf of the authority

 8  pursuant to the State Bond Act.

 9         (2)  Any such resolution or resolutions authorizing any

10  bonds hereunder may contain provisions which shall be part of

11  the contract with the holders of such bonds, as to:

12         (a)  The pledging of all or any part of the revenues,

13  rates, fees, rentals, or other charges or receipts of the

14  authority, derived by the authority, from the Southwest

15  Florida Transportation System.

16         (b)  The completion, improvement, operation, extension,

17  maintenance, repair, lease, or lease-purchase agreement of

18  said system and the duties of the authority and others,

19  including the department, with reference thereto.

20         (c)  Limitations on the purposes to which the proceeds

21  of the bonds, then or thereafter to be issued, or of any loan

22  or grant by the United States or the state may be applied.

23         (d)  The fixing, charging, establishing, and collecting

24  of rates, fees, rentals, or other charges for use of the

25  services and facilities of the Southwest Florida

26  Transportation System or any part thereof.

27         (e)  The setting aside of reserves or sinking funds or

28  repair and replacement funds and the regulation and

29  disposition thereof.

30         (f)  Limitations on the issuance of additional bonds.

31  

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    Florida Senate - 2004                                  SB 2938
    37-1583-04                                         See HB 1615




 1         (g)  The terms and provisions of any lease-purchase

 2  agreement, deed of trust, or indenture securing the bonds or

 3  under which the same may be issued.

 4         (h)  Any other or additional agreements with the

 5  holders of the bonds which the authority may deem desirable

 6  and proper.

 7         (3)  The authority may employ fiscal agents as provided

 8  by this part, or the State Board of Administration may, upon

 9  request of the authority, act as fiscal agent for the

10  authority in the issuance of any bonds which may be issued

11  pursuant to this part, and the State Board of Administration

12  may, upon request of the authority, take over the management,

13  control, administration, custody, and payment of any or all

14  debt services or funds or assets now or hereafter available

15  for any bonds issued pursuant to this part. The authority may

16  enter into any deeds of trust, indentures, or other agreements

17  with its fiscal agent, or with any bank or trust company

18  within or without the state, as security for such bonds and

19  may, under such agreements, sign and pledge all or any of the

20  revenues, rates, fees, rentals, or other charges or receipts

21  of the authority. Such deed of trust, indenture, or other

22  agreement may contain such provisions as are customary in such

23  instruments or, as the authority may authorize, including, but

24  without limitation, provisions as to:

25         (a)  The completion, improvement, operation, extension,

26  maintenance, repair, and lease of, or lease-purchase agreement

27  relating to, the Southwest Florida Transportation System and

28  the duties of the authority and others, including the

29  department, with reference thereto.

30         (b)  The application of funds and the safeguarding of

31  funds on hand or on deposit.

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    Florida Senate - 2004                                  SB 2938
    37-1583-04                                         See HB 1615




 1         (c)  The rights and remedies of the trustee and the

 2  holders of the bonds.

 3         (d)  The terms and provisions of the bonds or the

 4  resolutions authorizing the issuance of same.

 5         (4)  Any of the bonds issued pursuant to this part are,

 6  and are hereby declared to be, negotiable instruments and

 7  shall have all the qualities and incidents of negotiable

 8  instruments under the law merchant and the negotiable

 9  instruments law of the state.

10         (5)  Notwithstanding any of the provisions of this

11  part, each project, building, or facility which has been

12  financed by the issuance of bonds or other evidence of

13  indebtedness under this part and any refinancing thereof is

14  hereby approved as provided for in s. 11(f), Art. VII of the

15  State Constitution.

16         348.9937  Remedies of the bondholders.--

17         (1)  The rights and the remedies herein conferred upon

18  or granted to the bondholders shall be in addition to and not

19  in limitation of any rights and remedies lawfully granted to

20  such bondholders by the resolution or resolutions providing

21  for the issuance of bonds, or by a lease-purchase agreement,

22  deed of trust, indenture, or other agreement under which the

23  bonds may be issued or secured. In the event that the

24  authority shall default in the payment of the principal of or

25  interest on any of the bonds issued pursuant to the provisions

26  of this part after such principal of or interest on said bonds

27  shall have become due, whether at maturity or upon call for

28  redemption, or the department shall default in any payments

29  under, or covenants made in, any lease-purchase agreement

30  between the authority and the department, and such default

31  shall continue for a period of 30 days, or in the event that

                                  16

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    Florida Senate - 2004                                  SB 2938
    37-1583-04                                         See HB 1615




 1  the authority or the department shall fail or refuse to comply

 2  with the provisions of this part or any agreement made with,

 3  or for the benefit of, the holders of the bonds, the holders

 4  of 25 percent in aggregate principal amount of the bonds then

 5  outstanding shall be entitled as of right to the appointment

 6  of a trustee to represent such bondholders for the purposes

 7  hereof; provided, however, that such holders of 25 percent in

 8  aggregate principal amount of the bonds then outstanding shall

 9  have first given notice of their intention to appoint a

10  trustee, to the authority and to the department. Such notice

11  shall be deemed to have been given if given in writing,

12  deposited in a securely sealed postpaid wrapper, mailed at a

13  regularly maintained United States post office box or station,

14  and addressed, respectively, to the chair of the authority and

15  to the secretary of the Department of Transportation at the

16  principal office of the department.

17         (2)  Such trustee, and any trustee under any deed of

18  trust, indenture, or other agreement, may, and upon written

19  request of the holders of 25 percent, or such other

20  percentages as may be specified in any deed of trust,

21  indenture, or other agreement aforesaid, in principal amount

22  of the bonds then outstanding, shall, in any court of

23  competent jurisdiction, in his, her, or its own name:

24         (a)  By mandamus or other suit, action, or proceeding

25  at law or in equity, enforce all rights of the bondholders,

26  including the right to require the authority to fix,

27  establish, maintain, collect, and charge rates, fees, rentals,

28  and other charges, adequate to carry out any agreement as to,

29  or pledge of, the revenues or receipts of the authority to

30  carry out any other covenants and agreements with or for the

31  

                                  17

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    Florida Senate - 2004                                  SB 2938
    37-1583-04                                         See HB 1615




 1  benefit of the bondholders, and to perform its and their

 2  duties under this part.

 3         (b)  By mandamus or other suit, action, or proceeding

 4  at law or in equity, enforce all rights of the bondholders

 5  under or pursuant to any lease-purchase agreement between the

 6  authority and the department, including the right to require

 7  the department to make all rental payments required to be made

 8  by it under the provisions of any such lease-purchase

 9  agreement, and to require the department to carry out any

10  other covenants and agreements with or for the benefit of the

11  bondholders, and to perform its and their duties under this

12  part.

13         (c)  Bring suit upon the bonds.

14         (d)  By action or suit in equity, require the authority

15  or the department to account as if it were the trustee of an

16  express trust for the bondholders.

17         (e)  By action or suit in equity, enjoin any acts or

18  things which may be unlawful or in violation of the rights of

19  the bondholders.

20         (3)  Any trustee, when appointed as aforesaid or acting

21  under a deed of trust, indenture, or other agreement, and

22  whether or not all bonds have been declared due and payable,

23  shall be entitled as of right to the appointment of a

24  receiver, who may enter upon and take possession of the

25  Southwest Florida Transportation System or the facilities or

26  any part or parts thereof, the rates, fees, rentals, or other

27  revenues, charges, or receipts from which are, or may be,

28  applicable to the payment of the bonds so in default, and

29  subject to and in compliance with the provisions of any

30  lease-purchase agreement between the authority and the

31  department operate and maintain the same, for and on behalf of

                                  18

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    Florida Senate - 2004                                  SB 2938
    37-1583-04                                         See HB 1615




 1  and in the name of, the authority, the department, and the

 2  bondholders, and collect and receive all rates, fees, rentals,

 3  and other charges or receipts or revenues arising therefrom in

 4  the same manner as the authority or the department might do,

 5  and shall deposit all such moneys in a separate account and

 6  apply the same in such manner as the court shall direct. In

 7  any suit, action, or proceeding by the trustee, the fees,

 8  counsel fees, and expenses of the trustee, and said receiver,

 9  if any, and all costs and disbursements allowed by the court

10  shall be a first charge on any rates, fees, rentals, or other

11  charges, revenues, or receipts derived from the Southwest

12  Florida Transportation System, or the facilities or services

13  or any part or parts thereof, including payments under any

14  such lease-purchase agreement as aforesaid which said rates,

15  fees, rentals, or other charges, revenues, or receipts shall

16  or may be applicable to the payment of the bonds so in

17  default. Such trustee shall, in addition to the foregoing,

18  have and possess all of the powers necessary or appropriate

19  for the exercise of any functions specifically set forth

20  herein or incident to the representation of the bondholders in

21  the enforcement and protection of their rights.

22         (4)  Nothing in this section or any other section of

23  this part shall authorize any receiver appointed pursuant

24  hereto for the purpose, subject to and in compliance with the

25  provisions of any lease-purchase agreement between the

26  authority and the department, of operating and maintaining the

27  Southwest Florida Transportation System or any facilities or

28  part or parts thereof to sell, assign, mortgage, or otherwise

29  dispose of any of the assets of whatever kind and character

30  belonging to the authority. It is the intention of this part

31  to limit the powers of such receiver, subject to and in

                                  19

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    Florida Senate - 2004                                  SB 2938
    37-1583-04                                         See HB 1615




 1  compliance with the provisions of any lease-purchase agreement

 2  between the authority and the department, to the operation and

 3  maintenance of the Southwest Florida Transportation System, or

 4  any facility or part or parts thereof, as the court may

 5  direct, in the name and for and on behalf of the authority,

 6  the department, and the bondholders, and no holder of bonds on

 7  the authority nor any trustee shall ever have the right in any

 8  suit, action, or proceeding at law or in equity to compel a

 9  receiver, nor shall any receiver be authorized or any court be

10  empowered to direct the receiver to sell, assign, mortgage, or

11  otherwise dispose of any assets of whatever kind or character

12  belonging to the authority.

13         348.9938  Lease-purchase agreement.--

14         (1)  In order to effectuate the purposes of this part

15  and as authorized by this part, the authority may enter into a

16  lease-purchase agreement with the department relating to and

17  covering the Southwest Florida Transportation System.

18         (2)  Such lease-purchase agreement shall provide for

19  the leasing of the Southwest Florida Transportation System by

20  the authority, as lessor, to the department, as lessee; shall

21  prescribe the term of such lease and the rentals to be paid

22  thereunder; and shall provide that upon the completion of the

23  faithful performance thereunder and the termination of such

24  lease-purchase agreement, title in fee simple absolute to the

25  Southwest Florida Transportation System as then constituted

26  shall be transferred in accordance with law by the authority

27  to the state and the authority shall deliver to the department

28  such deeds and conveyances as shall be necessary or convenient

29  to vest title in fee simple absolute in the state.

30         (3)  Such lease-purchase agreement may include such

31  other provisions, agreements, and covenants as the authority

                                  20

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    Florida Senate - 2004                                  SB 2938
    37-1583-04                                         See HB 1615




 1  and the department deem advisable or required, including, but

 2  not limited to, provisions as to the bonds to be issued under,

 3  and for the purposes of, this part; the completion, extension,

 4  improvement, operation, and maintenance of the Southwest

 5  Florida Transportation System and the expenses and the cost of

 6  operation of said authority; the charging and collection of

 7  tolls, rates, fees, and other charges for the use of the

 8  services and facilities thereof; the application of federal or

 9  state grants or aid which may be made or given to assist the

10  authority in the completion, extension, improvement,

11  operation, and maintenance of the Southwest Florida

12  Transportation System, which the authority is hereby

13  authorized to accept and apply to such purposes; the

14  enforcement of payment and collection of rentals; and any

15  other terms, provisions, or covenants necessary, incidental,

16  or appurtenant to the making of and full performance under

17  such lease-purchase agreement.

18         (4)  The department, as lessee under such

19  lease-purchase agreement, is hereby authorized to pay as

20  rentals thereunder any rates, fees, charges, funds, moneys,

21  receipts, or income accruing to the department from the

22  operation of the Southwest Florida Transportation System and

23  may also pay as rentals any appropriations received by the

24  department pursuant to any act of the Legislature of the state

25  heretofore or hereafter enacted; provided, however, that

26  nothing herein nor in such lease-purchase agreement is

27  intended to nor shall this part or such lease-purchase

28  agreement require the making or continuance of such

29  appropriations, nor shall any holder of bonds issued pursuant

30  to this part ever have any right to compel the making or

31  continuance of such appropriations.

                                  21

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    Florida Senate - 2004                                  SB 2938
    37-1583-04                                         See HB 1615




 1         (5)  Said department shall have power to covenant in

 2  any lease-purchase agreement that it will pay all or any part

 3  of the cost of the operation, maintenance, repair, renewal,

 4  and replacement of said system, and any part of the cost of

 5  completing said system to the extent that the proceeds of

 6  bonds issued therefor are insufficient, from sources other

 7  than the revenues derived from the operation of said system.

 8  Said department may also agree to make such other payments

 9  from any moneys available to said commission, said county, or

10  said municipality in connection with the construction or

11  completion of said system as shall be deemed by said

12  department to be fair and proper under any such covenants

13  heretofore or hereafter entered into.

14         (6)  Said system shall be a part of the state road

15  system and said department is hereby authorized, upon the

16  request of the authority, to expend out of any funds available

17  for the purpose such moneys, and to use such of its

18  engineering and other forces, as may be necessary and

19  desirable in the judgment of said department, for the

20  operation of said authority and for traffic surveys, borings,

21  surveys, preparation of plans and specifications, estimates of

22  cost and other preliminary engineering, and other studies.

23         348.9939  Department may be appointed agent of

24  authority for construction.--The department may be appointed

25  by said authority as its agent for the purpose of constructing

26  improvements and extensions to the Southwest Florida

27  Transportation System and for the completion thereof. In such

28  event, the authority shall provide the department with

29  complete copies of all documents, agreements, resolutions,

30  contracts, and instruments relating thereto and shall request

31  the department to do such construction work including the

                                  22

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    Florida Senate - 2004                                  SB 2938
    37-1583-04                                         See HB 1615




 1  planning, surveying, and actual construction of the

 2  completion, extensions, and improvements to the Southwest

 3  Florida Transportation System and shall transfer to the credit

 4  of an account of the department in the treasury of the state

 5  the necessary funds therefor, and the department shall

 6  thereupon be authorized, empowered, and directed to proceed

 7  with such construction and to use the said funds for such

 8  purpose in the same manner that it is now authorized to use

 9  the funds otherwise provided by law for its use in

10  construction of roads and bridges.

11         348.994  Acquisition of lands and property.--

12         (1)  For the purposes of this part, the Southwest

13  Florida Expressway Authority may acquire private or public

14  property and property rights, including rights of access, air,

15  view, and light, by gift, devise, purchase, or condemnation by

16  eminent domain proceedings, as the authority may deem

17  necessary for any of the purposes of this part, including, but

18  not limited to, any lands reasonably necessary for securing

19  applicable permits, areas necessary for management of access,

20  borrow pits, drainage ditches, water retention areas, rest

21  areas, replacement access for landowners whose access is

22  impaired due to the construction of a facility, and

23  replacement rights-of-way for relocated rail and utility

24  facilities; for existing, proposed, or anticipated

25  transportation facilities on the Southwest Florida

26  Transportation System or in a transportation corridor

27  designated by the authority. The authority shall also have the

28  power to condemn any material and property necessary for such

29  purposes.

30         (2)  The right of eminent domain herein conferred shall

31  be exercised by the authority in the manner provided by law.

                                  23

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    Florida Senate - 2004                                  SB 2938
    37-1583-04                                         See HB 1615




 1         (3)  When the authority acquires property for a

 2  transportation facility or in a transportation corridor, it is

 3  not subject to any liability imposed by chapter 376 or chapter

 4  403 for preexisting soil or groundwater contamination due

 5  solely to its ownership. This section does not affect the

 6  rights or liabilities of any past or future owners of the

 7  acquired property, nor does it affect the liability of any

 8  governmental entity for the results of its actions which

 9  create or exacerbate a pollution source. The authority and the

10  Department of Environmental Protection may enter into

11  interagency agreements for the performance, funding, and

12  reimbursement of the investigative and remedial acts necessary

13  for property acquired by the authority.

14         348.9941  Cooperation with other units, boards,

15  agencies, and individuals.--Express authority and power is

16  hereby given and granted any county, municipality, drainage

17  district, road and bridge district, school district, or any

18  other political subdivision, board, commission, or individual

19  in, or of, the state to make and enter into with the authority

20  contracts, leases, conveyances, partnerships, or other

21  agreements within the provisions and purposes of this part.

22  The authority is hereby expressly authorized to make and enter

23  into contracts, leases, conveyances, partnerships, and other

24  agreements with any political subdivision, agency, or

25  instrumentality of the state and any and all federal agencies,

26  corporations, and individuals for the purpose of carrying out

27  the provisions of this part.

28         348.9942  Covenant of the state.--The state does hereby

29  pledge to and agrees with any person, firm, corporation, or

30  federal or state agency subscribing to or acquiring the bonds

31  to be issued by the authority for the purposes of this part

                                  24

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    Florida Senate - 2004                                  SB 2938
    37-1583-04                                         See HB 1615




 1  that the state will not limit or alter the rights hereby

 2  vested in the authority and the department until all bonds at

 3  any time issued, together with the interest thereon, are fully

 4  paid and discharged insofar as the same affects the rights of

 5  the holders of bonds issued hereunder. The state does further

 6  pledge to and agree with the United States that in the event

 7  any federal agency shall construct or contribute any funds for

 8  the completion, extension, or improvement of the Southwest

 9  Florida Transportation System, or any part or portion thereof,

10  the state will not alter or limit the rights and powers of the

11  authority and the department in any manner which would be

12  inconsistent with the continued maintenance and operation of

13  the Southwest Florida Transportation System or the completion,

14  extension, or improvement thereof or which would be

15  inconsistent with the due performance of any agreements

16  between the authority and any such federal agency, and the

17  authority and the department shall continue to have and may

18  exercise all powers herein granted, so long as the same shall

19  be necessary or desirable for the carrying out of the purposes

20  of this part and the purposes of the United States in the

21  completion, extension, or improvement of the Southwest Florida

22  Transportation System or any part or portion thereof.

23         348.9943  Exemption from taxation.--The effectuation of

24  the authorized purposes of the authority created under this

25  part is, shall, and will be in all respects for the benefit of

26  the people of the state, for the increase of their commerce

27  and prosperity, and for the improvement of their health and

28  living conditions, and since such authority will be performing

29  essential governmental functions in effectuating such

30  purposes, such authority shall not be required to pay any

31  taxes or assessments of any kind or nature whatsoever upon any

                                  25

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    Florida Senate - 2004                                  SB 2938
    37-1583-04                                         See HB 1615




 1  property acquired or used by it for such purposes, or upon any

 2  rates, fees, rentals, receipts, income, or charges at any time

 3  received by it, and the bonds issued by the authority, their

 4  transfer, and the income therefrom, including any profits made

 5  on the sale thereof, shall at all times be free from taxation

 6  of any kind by the state, or by any political subdivision,

 7  taxing agency, or instrumentality thereof. The exemption

 8  granted by this section shall not be applicable to any tax

 9  imposed by chapter 220 on interest, income, or profits on debt

10  obligations owned by corporations.

11         348.9944  Eligibility for investments and

12  security.--Any bonds or other obligations issued pursuant to

13  this part shall be and constitute legal investments for banks,

14  savings banks, trustees, executors, administrators, and all

15  other fiduciaries and for all state, municipal, and other

16  public funds and shall also be and constitute securities

17  eligible for deposit as security for all state, municipal, or

18  other public funds, notwithstanding the provisions of any

19  other law or laws to the contrary.

20         348.9945  Pledges enforceable by bondholders.--It is

21  the express intention of this part that any pledge by the

22  department of rates, fees, revenues, or other funds, as

23  rentals, to the authority, or any covenants or agreements

24  relative thereto, may be enforceable in any court of competent

25  jurisdiction against the authority or directly against the

26  department by any holder of bonds issued by the authority.

27         348.9946  This part complete and additional

28  authority.--

29         (1)  The powers conferred by this part shall be in

30  addition and supplemental to the existing powers of said board

31  and the department, and this part shall not be construed as

                                  26

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    Florida Senate - 2004                                  SB 2938
    37-1583-04                                         See HB 1615




 1  repealing any of the provisions of any other law, general,

 2  special, or local, but to supersede such other laws in the

 3  exercise of the powers provided in this part and to provide a

 4  complete method for the exercise of the powers granted in this

 5  part. The extension and improvement of said Southwest Florida

 6  Transportation System, and the issuance of bonds hereunder to

 7  finance all or part of the cost thereof, may be accomplished

 8  upon compliance with the provisions of this part without

 9  regard to or necessity for compliance with the provisions,

10  limitations, or restrictions contained in any other general,

11  special, or local law, including, but not limited to, s.

12  215.821, and no approval of any bonds issued under this part

13  by the qualified electors or qualified electors who are

14  freeholders in the state or in said Collier County or Lee

15  County, or in any municipality within these two counties, or

16  in any other political subdivision of the state, shall be

17  required for the issuance of such bonds pursuant to this part.

18         (2)  This part shall not be deemed to repeal, rescind,

19  or modify any other law or laws relating to said State Board

20  of Administration, said Department of Transportation, or the

21  Division of Bond Finance of the State Board of Administration

22  but shall be deemed to and shall supersede such other law or

23  laws as are inconsistent with the provisions of this part,

24  including, but not limited to, s. 215.821.

25         Section 2.  Sunset of the Southwest Florida Expressway

26  Authority's duties and powers.--The powers conferred to the

27  Southwest Florida Expressway Authority and part X of chapter

28  348, Florida Statutes, the statutory establishment of the

29  Southwest Florida Expressway Authority, shall expire 12 years

30  after this act takes effect if the Southwest Florida

31  Expressway Authority has no outstanding indebtedness, no

                                  27

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    Florida Senate - 2004                                  SB 2938
    37-1583-04                                         See HB 1615




 1  studies underway, no design underway, and no projects under

 2  construction and is not operating or maintaining any part of

 3  the system it was established to create.

 4         Section 3.  Notwithstanding the provisions of section

 5  338.251, Florida Statutes, there is hereby appropriated for

 6  fiscal year 2004-2005 the sum of $2.5 million to initially

 7  fund the Southwest Florida Transportation System.

 8  Notwithstanding the provisions of section 338.251, Florida

 9  Statutes, all or a portion of this appropriation may be used

10  for administrative and other startup costs of the Southwest

11  Florida Expressway Authority and the system including, but not

12  limited to, the hiring of an executive director, consultants,

13  and staff.

14         Section 4.  This act shall take effect upon resolutions

15  in support of this act being passed by both the Lee County

16  Board of County Commissioners and the Collier County Board of

17  County Commissioners, but no sooner than July 1, 2004, in the

18  event the boards pass such resolutions prior to that date;

19  except that, this section shall take effect upon this act

20  becoming a law.

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

                                  28

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