HB 1189

1
A bill to be entitled
2An act relating to transportation projects; amending s.
3334.30, F.S.; revising requirements for approval of
4agreements between the Department of Transportation and
5private entities for the building, operation, ownership,
6or financing of transportation facilities; requiring a
7public-private partnership to provide certain financial
8benefits to the state and the counties where any tolls are
9collected or where the facility is located; revising
10provisions for agreements under which the department may
11lease existing toll facilities through public-private
12partnerships; limiting distribution of proceeds from
13leases of facilities on the State Highway System to
14funding improvement projects on the State Highway System;
15providing requirements for selection of such projects;
16requiring distribution of proceeds to be in accordance
17with specified provisions; requiring certain coordination
18between the department and counties and municipalities
19where such tolls will be collected; requiring such
20distributions to provide an increase in current funding;
21requiring the department to share a required independent
22analysis with the local governments impacted by any
23proposed lease; amending s. 338.165, F.S.; providing
24requirements for use of revenues generated pursuant to the
25lease of an existing toll facility under specified
26provisions; requiring that such revenue be used to pay
27debt service on any bond indebtedness related to the
28facility and for the construction, maintenance, or
29improvement of any road on the State Highway System within
30the county or counties in which the existing toll facility
31is located; directing a metropolitan planning organization
32in a county where a leased toll facility is located to
33submit a list of projects to be funded; providing
34requirements for such list; prohibiting funding for such
35projects from supplanting funds committed in the
36department's 5-year work program or from reducing future
37allocations to a district; providing that use of funds is
38subject to department approval; amending s. 339.135, F.S.;
39restricting reductions in fund allocations to a county for
40projects in the department's tentative work program;
41providing an effective date.
42
43Be It Enacted by the Legislature of the State of Florida:
44
45     Section 1.  Subsections (1) and (2) and paragraphs (d) and
46(e) of subsection (6) of section 334.30, Florida Statutes, are
47amended to read:
48     334.30  Public-private transportation facilities.--The
49Legislature finds and declares that there is a public need for
50the rapid construction of safe and efficient transportation
51facilities for the purpose of traveling within the state, and
52that it is in the public's interest to provide for the
53construction of additional safe, convenient, and economical
54transportation facilities.
55     (1)  The department may receive or solicit proposals and,
56with legislative approval as evidenced by approval of the
57project in the department's work program, enter into agreements
58with private entities, or consortia thereof, for the building,
59operation, ownership, or financing of transportation facilities.
60The department may advance projects programmed in the adopted 5-
61year work program or projects increasing transportation capacity
62and greater than $500 million in the 10-year Strategic
63Intermodal System Plan using funds provided by public-private
64partnerships or private entities to be reimbursed from
65department funds for the project as programmed in the adopted
66work program. The department shall by rule establish an
67application fee for the submission of unsolicited proposals
68under this section. The fee must be sufficient to pay the costs
69of evaluating the proposals. The department may engage the
70services of private consultants to assist in the evaluation.
71Before approval, the department must determine that the proposed
72project:
73     (a)  Is in the public's best interest;
74     (b)  Would not require state funds to be used unless the
75project is on the State Highway System;
76     (c)  Would have adequate safeguards in place to ensure that
77no additional costs or service disruptions would be realized by
78the traveling public and residents of the state in the event of
79default or cancellation of the agreement by the department;
80     (d)  Would have adequate safeguards in place to ensure that
81the department or the private entity has the opportunity to add
82capacity to the proposed project and other transportation
83facilities serving similar origins and destinations;
84     (e)  Would provide transportation funding benefits to the
85state and the counties where any tolls are collected or where
86the facility is located, which benefits are above the funding
87levels projected without the public-private partnership in the
88department's adopted work program; and
89     (f)(e)  Would be owned by the department upon completion or
90termination of the agreement.
91
92The department shall ensure that all reasonable costs to the
93state, related to transportation facilities that are not part of
94the State Highway System, are borne by the private entity. The
95department shall also ensure that all reasonable costs to the
96state and substantially affected local governments and
97utilities, related to the private transportation facility, are
98borne by the private entity for transportation facilities that
99are owned by private entities. For projects on the State Highway
100System, the department may use state resources to participate in
101funding and financing the project as provided for under the
102department's enabling legislation.
103     (2)  Agreements entered into pursuant to this section may
104authorize the private entity to impose tolls or fares for the
105use of the facility. The following provisions shall apply to
106such agreements:
107     (a)  With the exception of the Florida Turnpike System, the
108department may lease existing toll facilities through public-
109private partnerships. The public-private partnership agreement
110must ensure that the transportation facility is properly
111operated, maintained, and renewed in accordance with department
112standards.
113     (b)  Where leasing of existing toll facilities through
114public-private partnerships is considered on the State Highway
115System, the department must limit the distribution of proceeds
116from such leases to funding improvements on the State Highway
117System. Improvements to be funded shall be selected from the
118department's adopted 5-year work program, projects contained in
119the 10-year Strategic Intermodal System Plan that increase
120transportation capacity, or projects included within the long-
121range transportation plan of the local metropolitan planning
122organizations for the counties where tolls will be collected
123under the lease. The department shall make every effort to
124select projects from the list provided by the local metropolitan
125planning organization under s. 338.165(7)(b). All projects
126selected shall be consistent with the Florida Transportation
127Plan.
128     (c)  Proceeds from leasing of existing toll facilities
129through public-private partnerships on the State Highway System
130must be distributed in accordance with the provisions of s.
131338.165. Prior to awarding a lease for existing toll facilities
132to any public-private partnership, the department shall
133coordinate with local governments within the county or counties
134where tolls will be collected as a part of such lease. As part
135of the coordination, the department must provide the county or
136counties with the details of the intended county-by-county
137distribution of proceeds from the lease. The coordination shall
138also include a review of projects contained on the transmittal
139of a list of projects to be funded by lease proceeds in
140accordance with paragraph (b).
141     (d)  Distribution of the lease proceeds must represent an
142increase in funding to the affected county equal to the lease
143amount over and above the current funding contained within the
144adopted 5-year work program of the department or the 10-year
145Strategic Intermodal System Plan for each of the counties
146affected.
147     (e)(b)  The department may develop new toll facilities or
148increase capacity on existing toll facilities through public-
149private partnerships. The public-private partnership agreement
150must ensure that the toll facility is properly operated,
151maintained, and renewed in accordance with department standards.
152     (f)(c)  Any toll revenues shall be regulated by the
153department pursuant to s. 338.165(3). The regulations governing
154the future increase of toll or fare revenues shall be included
155in the public-private partnership agreement.
156     (g)(d)  The department shall provide the analysis required
157in subparagraph (6)(e)2. to the Legislative Budget Commission
158created pursuant to s. 11.90 for review and approval prior to
159awarding a contract on a lease of an existing toll facility.
160     (h)(e)  The department shall include provisions in the
161public-private partnership agreement that ensure a negotiated
162portion of revenues from tolled or fare generating projects are
163returned to the department over the life of the public-private
164partnership agreement and,. in the case of a lease of an
165existing toll facility, shall include a minimum amount due to
166the department, as follows:
167     1.  The amount shall exceed, on an annualized basis, the
168department's existing annual revenues related to the facility
169prior to the lease.
170     2.  The department shall receive a portion of funds upon
171closing on the agreements and shall also include provisions in
172the agreement to receive payment of a portion of excess revenues
173over the life of the public-private partnership, and such funds
174shall be subject to the provisions of this subsection, s.
175338.165, or s. 338.26.
176     (i)(f)  The private entity shall provide an investment
177grade traffic and revenue study prepared by an internationally
178recognized traffic and revenue expert that is accepted by the
179national bond rating agencies. The private entity shall also
180provide a finance plan that identifies the project cost,
181revenues by source, financing, major assumptions, internal rate
182of return on private investments, and whether any government
183funds are assumed to deliver a cost-feasible project, and a
184total cash flow analysis beginning with implementation of the
185project and extending for the term of the agreement.
186     (6)  The procurement of public-private partnerships by the
187department shall follow the provisions of this section. Sections
188337.025, 337.11, 337.14, 337.141, 337.145, 337.175, 337.18,
189337.185, 337.19, 337.221, and 337.251 shall not apply to
190procurements under this section unless a provision is included
191in the procurement documents. The department shall ensure that
192generally accepted business practices for exemptions provided by
193this subsection are part of the procurement process or are
194included in the public-private partnership agreement.
195     (d)  After the public notification period has expired, the
196department shall rank the proposals in order of preference. In
197ranking the proposals, the department may consider factors that
198include, but are not limited to, professional qualifications,
199general business terms, innovative engineering or cost-reduction
200terms, finance plans, the estimated transportation funding
201benefits to the state and counties where the project is located
202compared with public ownership and operation of the project, and
203the need for state funds to deliver the project. If the
204department is not satisfied with the results of the
205negotiations, the department may, at its sole discretion,
206terminate negotiations with the proposer. If these negotiations
207are unsuccessful, the department may go to the second-ranked and
208lower-ranked firms, in order, using this same procedure. If only
209one proposal is received, the department may negotiate in good
210faith and, if the department is not satisfied with the results
211of the negotiations, the department may, at its sole discretion,
212terminate negotiations with the proposer. Notwithstanding this
213subsection, the department may, at its discretion, reject all
214proposals at any point in the process up to completion of a
215contract with the proposer.
216     (e)  The department shall provide an independent analysis
217of the proposed public-private partnership that demonstrates the
218cost-effectiveness and overall public benefit at the following
219times:
220     1.  Prior to moving forward with the procurement; and
221     2.  If the procurement moves forward, prior to awarding the
222contract.
223
224The department must share the initial findings of the
225independent analysis with the local governments impacted by any
226proposed lease to demonstrate the overall public benefit.
227     Section 2.  Subsections (7) and (8) of section 338.165,
228Florida Statutes, are renumbered as subsections (8) and (9),
229respectively, and a new subsection (7) is added to that section
230to read:
231     338.165  Continuation of tolls.--
232     (7)  Notwithstanding any other provision of this section,
233revenues generated pursuant to the lease of an existing toll
234facility as provided in s. 334.30, including any funds received
235upon closing on the public-private partnership agreement, shall
236be used on an annual basis in the following order:
237     (a)  To pay debt service on any bond indebtedness related
238to the facility.
239     (b)  For the construction, maintenance, or improvement of
240any road on the State Highway System within the county or
241counties in which the existing toll facility is located.
242     1.  A metropolitan planning organization in a county where
243a leased toll facility is located shall, with its annual
244submission pursuant to s. 339.175(8)(b), submit a list of
245projects to be funded from revenues paid to the department
246pursuant to s. 334.30(2)(h), including the priority of such
247projects. The list of projects submitted shall be consistent
248with the Florida Transportation Plan.
249     2.  Funding for such projects may not be used to supplant
250existing funds already committed in the department's adopted 5-
251year work program or to reduce future allocations to a district
252pursuant to s. 339.135.
253     3.  The use of such funds for a specific project is subject
254to department approval.
255     Section 3.  Paragraph (a) of subsection (4) of section
256339.135, Florida Statutes, is amended to read:
257     339.135  Work program; legislative budget request;
258definitions; preparation, adoption, execution, and amendment.--
259     (4)  FUNDING AND DEVELOPING A TENTATIVE WORK PROGRAM.--
260     (a)1.  To assure that no district or county is penalized
261for local efforts to improve the State Highway System, the
262department shall, for the purpose of developing a tentative work
263program, allocate funds for new construction to the districts,
264except for the turnpike enterprise, based on equal parts of
265population and motor fuel tax collections. Funds for
266resurfacing, bridge repair and rehabilitation, bridge fender
267system construction or repair, public transit projects except
268public transit block grants as provided in s. 341.052, and other
269programs with quantitative needs assessments shall be allocated
270based on the results of these assessments, provided that no
271county's allocation shall be reduced to an amount less than that
272produced by equal parts of population and motor fuel tax
273collections without the affected county's consent. The
274department may not transfer any funds allocated to a district
275under this paragraph to any other district except as provided in
276subsection (7). Funds for public transit block grants shall be
277allocated to the districts pursuant to s. 341.052. Funds for the
278intercity bus program provided for under s. 5311(f) of the
279federal nonurbanized area formula program shall be administered
280and allocated directly to eligible bus carriers as defined in s.
281341.031(12) at the state level rather than the district. In
282order to provide state funding to support the intercity bus
283program provided for under provisions of the federal 5311(f)
284program, the department shall allocate an amount equal to the
285federal share of the 5311(f) program from amounts calculated
286pursuant to s. 206.46(3).
287     2.  Notwithstanding the provisions of subparagraph 1., the
288department shall allocate at least 50 percent of any new
289discretionary highway capacity funds to the Florida Strategic
290Intermodal System created pursuant to s. 339.61. Any remaining
291new discretionary highway capacity funds shall be allocated to
292the districts for new construction as provided in subparagraph
2931. For the purposes of this subparagraph, the term "new
294discretionary highway capacity funds" means any funds available
295to the department above the prior year funding level for
296capacity improvements, which the department has the discretion
297to allocate to highway projects.
298     Section 4.  This act shall take effect July 1, 2009.


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