Senate Bill sb0954c1
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2006 CS for SB 954
By the Committee on Transportation; and Senator Sebesta
596-1939-06
1 A bill to be entitled
2 An act relating to transportation; amending s.
3 348.754, F.S.; authorizing the Orlando-Orange
4 County Expressway Authority to waive payment
5 and performance bonds on certain construction
6 contracts if the contract is awarded pursuant
7 to an economic development program for the
8 encouragement of local small businesses;
9 providing criteria for participation in the
10 program; providing criteria for the bond
11 waiver; providing for certain determinations by
12 the authority's executive director or a
13 designee as to the suitability of a project;
14 providing for certain payment obligations if a
15 payment and performance bond is waived;
16 requiring the authority to record notice of the
17 obligation; limiting eligibility to bid on the
18 projects; providing for the authority to
19 conduct bond-eligibility training for certain
20 businesses; requiring the authority to submit
21 biennial reports to the Orange County
22 legislative delegation; amending s. 348.0004,
23 F.S.; authorizing transportation authorities,
24 bridge authorities, or toll authorities to
25 enter agreements with private entities to
26 provide transportation facilities; amending s.
27 348.0012, F.S.; clarifying certain exemptions
28 from the Florida Expressway Authority Act;
29 providing an effective date.
30
31 Be It Enacted by the Legislature of the State of Florida:
1
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2006 CS for SB 954
596-1939-06
1 Section 1. Subsection (6) is added to section 348.754,
2 Florida Statutes, to read:
3 348.754 Purposes and powers.--
4 (6)(a) Notwithstanding s. 255.05, the Orlando-Orange
5 County Expressway Authority may waive payment and performance
6 bonds on construction contracts for the construction of a
7 public building, for the prosecution and completion of a
8 public work, or for repairs on a public building or public
9 work that has a cost of $500,000 or less and when the project
10 is awarded pursuant to an economic development program for the
11 encouragement of local small businesses which has been adopted
12 by the governing body of the Orlando-Orange County Expressway
13 Authority pursuant to a resolution or policy.
14 (b) The authority's adopted criteria for participation
15 in the economic development program for local small businesses
16 requires that a participant:
17 1. Be an independent business.
18 2. Be principally domiciled in the Orange County
19 Standard Metropolitan Statistical Area.
20 3. Employ 25 or fewer full-time employees.
21 4. Have gross annual sales averaging $3 million or
22 less over the immediately preceding 3 calendar years with
23 regard to any construction element of the program.
24 5. Be accepted as a participant in the Orlando-Orange
25 County Expressway Authority's microcontracts program or such
26 other small business program as may be hereinafter enacted by
27 the Orlando-Orange County Expressway Authority.
28 6. Participate in an educational curriculum or
29 technical assistance program for business development which
30 will assist the small business in becoming eligible for
31 bonding.
2
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2006 CS for SB 954
596-1939-06
1 (c) The authority's adopted procedures for waiving
2 payment and performance bonds on projects having values not
3 less than $200,000 and not exceeding $500,000 shall provide
4 that payment and performance bonds may be waived only on
5 projects that have been set aside to be competitively bid on
6 by participants in an economic development program for local
7 small businesses. The authority's executive director or his or
8 her designee shall determine whether specific construction
9 projects are suitable for:
10 1. Bidding under the authority's microcontracts
11 program by registered local small businesses; and
12 2. Waiver of the payment and performance bond.
13
14 The decision of the authority's executive director or deputy
15 executive director to waive the payment and performance bond
16 shall be based upon his or her investigation and conclusion
17 that there exists sufficient competition so that the authority
18 receives a fair price and does not undertake any unusual risk
19 with respect to such project.
20 (d) For any contract for which a payment and
21 performance bond has been waived pursuant to the authority set
22 forth in this section, the Orlando-Orange County Expressway
23 Authority shall pay all persons defined in s. 713.01 who
24 furnish labor, services, or materials for the prosecution of
25 the work provided for in the contract to the same extent and
26 upon the same conditions that a surety on the payment bond
27 under s. 255.05 would have been obligated to pay such persons
28 if the payment and performance bond had not been waived. The
29 authority shall record notice of this obligation in the manner
30 in which and at the location where surety bonds are recorded.
31 The notice must include the information describing the
3
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2006 CS for SB 954
596-1939-06
1 contract that s. 255.05(1) requires be stated on the front
2 page of the bond. Notwithstanding that s. 255.05(9) generally
3 applies when a performance and payment bond is required, s.
4 255.05(9) shall apply under this subsection to any contract
5 for which performance or payment bonds are waived, and any
6 claim to payment under this subsection shall be treated as a
7 contract claim pursuant to s. 255.05(9).
8 (e) A small business that has been the successful
9 bidder on six projects for which the payment and performance
10 bond was waived by the authority pursuant to paragraph (a)
11 shall be ineligible to bid on additional projects for which
12 the payment and performance bond is to be waived. The local
13 small business may continue to participate in other elements
14 of the economic development program for local small businesses
15 as long as it is eligible to do so.
16 (f) The authority shall conduct bond-eligibility
17 training for businesses qualifying for bond waiver under this
18 subsection to encourage and promote bond eligibility for such
19 businesses.
20 (g) The authority shall prepare a biennial report on
21 the activities undertaken pursuant to this subsection to be
22 submitted to the Orange County legislative delegation. The
23 initial report shall be due December 31, 2008.
24 Section 2. Subsection (9) of section 348.0004, Florida
25 Statutes, is amended to read:
26 348.0004 Purposes and powers.--
27 (9) The Legislature declares that there is a public
28 need for rapid construction of safe and efficient
29 transportation facilities for travel within the state and that
30 it is in the public's interest to provide for public-private
31 partnership agreements to effectuate the construction of
4
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2006 CS for SB 954
596-1939-06
1 additional safe, convenient, and economical transportation
2 facilities.
3 (a) Notwithstanding any other provision of the Florida
4 Expressway Authority Act, any expressway authority,
5 transportation authority, bridge authority, or toll authority
6 established under this part or any other statute may receive
7 or solicit proposals and enter into agreements with private
8 entities, or consortia thereof, for the building, operation,
9 ownership, or financing of expressway authority transportation
10 facilities or new transportation facilities within the
11 jurisdiction of the expressway authority. An expressway
12 authority is authorized to adopt rules to implement this
13 subsection and shall, by rule, establish an application fee
14 for the submission of unsolicited proposals under this
15 subsection. The fee must be sufficient to pay the costs of
16 evaluating the proposals. An expressway authority may engage
17 private consultants to assist in the evaluation. Before
18 approval, an expressway authority must determine that a
19 proposed project:
20 1. Is in the public's best interest.
21 2. Would not require state funds to be used unless the
22 project is on or provides increased mobility on the State
23 Highway System.
24 3. Would have adequate safeguards to ensure that no
25 additional costs or service disruptions would be realized by
26 the traveling public and residents citizens of the state in
27 the event of default or the cancellation of the agreement by
28 the expressway authority.
29 (b) An expressway authority shall ensure that all
30 reasonable costs to the state which are, related to
31 transportation facilities that are not part of the State
5
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2006 CS for SB 954
596-1939-06
1 Highway System, are borne by the private entity. An expressway
2 authority shall also ensure that all reasonable costs to the
3 state and substantially affected local governments and
4 utilities related to the private transportation facility are
5 borne by the private entity for transportation facilities that
6 are owned by private entities. For projects on the State
7 Highway System, the department may use state resources to
8 participate in funding and financing the project as provided
9 for under the department's enabling legislation.
10 (c) The expressway authority may request proposals for
11 public-private transportation projects or, if it receives an
12 unsolicited proposal, it must publish a notice in the Florida
13 Administrative Weekly and a newspaper of general circulation
14 in the county in which it is located at least once a week for
15 2 weeks, stating that it has received the proposal and will
16 accept, for 60 days after the initial date of publication,
17 other proposals for the same project purpose. A copy of the
18 notice must be mailed to each local government in the affected
19 areas. After the public notification period has expired, the
20 expressway authority shall rank the proposals in order of
21 preference. In ranking the proposals, the expressway authority
22 shall consider professional qualifications, general business
23 terms, innovative engineering or cost-reduction terms, finance
24 plans, and the need for state funds to deliver the proposal.
25 If the expressway authority is not satisfied with the results
26 of the negotiations, it may, at its sole discretion, terminate
27 negotiations with the proposer. If these negotiations are
28 unsuccessful, the expressway authority may go to the second
29 and lower-ranked firms, in order, using the same procedure. If
30 only one proposal is received, the expressway authority may
31 negotiate in good faith, and if it is not satisfied with the
6
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2006 CS for SB 954
596-1939-06
1 results, it may, at its sole discretion, terminate
2 negotiations with the proposer. Notwithstanding this
3 paragraph, the expressway authority may, at its discretion,
4 reject all proposals at any point in the process up to
5 completion of a contract with the proposer.
6 (d) The department may lend funds from the Toll
7 Facilities Revolving Trust Fund, as outlined in s. 338.251, to
8 public-private partnerships. To be eligible a private entity
9 must comply with s. 338.251 and must provide an indication
10 from a nationally recognized rating agency that the senior
11 bonds for the project will be investment grade or must provide
12 credit support, such as a letter of credit or other means
13 acceptable to the department, to ensure that the loans will be
14 fully repaid.
15 (e) Agreements entered into pursuant to this
16 subsection may authorize the public-private entity to impose
17 tolls or fares for the use of the facility. However, the
18 amount and use of toll or fare revenues shall be regulated by
19 the expressway authority to avoid unreasonable costs to users
20 of the facility.
21 (f) Each public-private transportation facility
22 constructed pursuant to this subsection shall comply with all
23 requirements of federal, state, and local laws; state,
24 regional, and local comprehensive plans; the expressway
25 authority's rules, policies, procedures, and standards for
26 transportation facilities; and any other conditions that the
27 expressway authority determines to be in the public's best
28 interest.
29 (g) An expressway authority may exercise any power
30 possessed by it, including eminent domain, to facilitate the
31 development and construction of transportation projects
7
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2006 CS for SB 954
596-1939-06
1 pursuant to this subsection. An expressway authority may pay
2 all or part of the cost of operating and maintaining the
3 facility or may provide services to the private entity for
4 which it receives full or partial reimbursement for services
5 rendered.
6 (h) Except as herein provided, this subsection is not
7 intended to amend existing laws by granting additional powers
8 to or further restricting the governmental entities from
9 regulating and entering into cooperative arrangements with the
10 private sector for the planning, construction, and operation
11 of transportation facilities. Use of the powers granted in
12 this subsection may not subject a statutorily created
13 expressway authority, transportation authority, bridge
14 authority, or toll authority, other than one statutorily
15 created under this part, to any of the requirements of this
16 part other than those contained in this subsection.
17 Section 3. Section 348.0012, Florida Statutes, is
18 amended to read:
19 348.0012 Exemptions from applicability.--The Florida
20 Expressway Authority Act does not apply:
21 (1) In a county in which an expressway authority has
22 been created pursuant to other parts II-IX of this chapter,
23 except as expressly provided in this part; or
24 (2) To a transportation authority created pursuant to
25 chapter 349.
26 Section 4. This act shall take effect July 1, 2006.
27
28
29
30
31
8
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2006 CS for SB 954
596-1939-06
1 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
2 Senate Bill 954
3
4 The CS clarifies existing provisions of the Florida Expressway
Authority Act, allowing any statutorily created
5 transportation, bridge, or toll authority to engage in
public-private partnerships. The CS allows the Orlando-Orange
6 County Expressway Authority to waive performance bond
requirements for public projects under $500,000 in order to
7 promote a small business contractor program.
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
9
CODING: Words stricken are deletions; words underlined are additions.