HB 1291

1
A bill to be entitled
2An act relating to public-private partnership
3infrastructure projects; creating s. 287.09475, F.S.;
4providing legislative findings and intent; defining terms;
5providing for the Department of Management Services and a
6state agency or local government to receive or solicit
7proposals to enter into a public works infrastructure
8project agreement with a private entity, or a consortium
9of private entities, to build, operate, or finance a
10public works infrastructure project; providing criteria
11for the selection of the project and the private entity
12that will enter into a partnership agreement with the
13participating governmental unit to build or operate the
14project; requiring all reasonable costs to the state
15related to infrastructure project and not part of the
16governmental unit's work plan to be borne by the private
17entity; authorizing the private entity to impose user fees
18for the use of the infrastructure project by the public;
19setting forth financing and revenue criteria for the
20infrastructure project agreement; requiring that each
21infrastructure facility be in compliance with all
22applicable federal, state, and local laws, construction
23standards, and performance standards; authorizing each
24participating governmental unit to exercise any lawful
25power possessed by it to aid in the development and
26construction of the infrastructure project; providing
27procedures for requesting and considering proposals;
28authorizing the department and a participating
29governmental unit to use innovative financing techniques
30for the infrastructure project; requiring the department
31to compile a summary of new projects each year; limiting
32the term of the infrastructure project agreement to a
33specified number of years; providing that the head of the
34participating governmental unit may authorize an increase
35in the term of a project by 25 years; providing an
36effective date.
37
38Be It Enacted by the Legislature of the State of Florida:
39
40     Section 1.  Section 287.09475, Florida Statutes, is created
41to read:
42     287.09475  Public-private partnership infrastructure
43projects.--
44     (1)  The Legislature finds and declares that there is a
45public need for the rapid construction of public works
46infrastructure projects for the purpose of improving the
47economic, environmental, social, and cultural infrastructure of
48this state, and that it is in the public interest to provide for
49the construction or expansion of public works infrastructure
50projects.
51     (2)  As used in this section, the term:
52     (a)  "Department" means the Department of Management
53Services.
54     (b)  "Government" means the state or a political
55subdivision of the state.
56     (c)  "Infrastructure project" or "public works
57infrastructure project" means a project to construct, operate,
58or maintain the basic public works of this state, including
59telecommunications, cable television, electricity, and broadband
60technology infrastructure, infrastructure for the transportation
61of gas, oil, or crude oil products; solid waste, waste water,
62and storm water infrastructure not connected with highway
63drainage; or other similar projects. The term does not include a
64transportation facility governed by s. 334.30.
65     (d)  "Maintain" includes ordinary repair, rehabilitation,
66capital maintenance, maintenance replacement, and any other
67categories of maintenance on an infrastructure project as
68designated by the government.
69     (e)  "Operate" or "operation" means an action to construct,
70maintain, rehabilitate, improve, equip, or modify an
71infrastructure project.
72     (f)  "Private entity" means a person who enters into a
73public-private infrastructure project agreement with a
74participating governmental unit.
75     (g)  "Participating governmental unit" means the
76governmental unit that enters into a public-private
77infrastructure project agreement with a private entity.
78     (h)  "Public-private infrastructure project agreement"
79means the document representing the agreement between a private
80entity and a participating governmental unit. The agreement must
81include:
82     1.  Acceptance by the participating governmental unit of a
83private contribution, including a money payment, in exchange for
84allowing the private entity to construct, operate, manage, or
85maintain a public works infrastructure project or services
86connected with an infrastructure project;
87     2.  The sharing of resources by the participating
88governmental unit with a private entity and the means of
89delivering a project or service to the public; and
90     3.  Cooperation in researching, developing, and
91implementing projects or services for an infrastructure project.
92     (i)  "User fee" means the rate, toll, fee, or other charges
93imposed on the public by a private entity for use of all or part
94of an infrastructure project.
95     (3)(a)  In cooperation with the participating government,
96the department and a participating governmental unit may receive
97or solicit proposals and enter into a public-private
98infrastructure project agreement with a private entity, or a
99consortium of private entities, to build, operate, manage,
100maintain, or finance a public works infrastructure project. The
101participating governmental unit may advance a project programmed
102in the governmental unit's adopted work program or its 10-year
103plan. The project may use funds provided by the private entity,
104which shall be reimbursed from user fees derived from the
105project as programmed in the adopted work program.
106     (b)  The department shall establish an application fee for
107the submission of unsolicited proposals under this section. The
108fee may not exceed the cost of evaluating the proposal.
109     (c)  The department and a participating governmental unit
110may engage the services of private consultants to assist in the
111evaluation.
112     (d)  Before approving a project, the department and the
113participating governmental unit must determine whether the
114proposed infrastructure project:
115     1.  Is in the public interest;
116     2.  Would have adequate safeguards in place to ensure that
117no additional costs or service disruptions would affect the
118public and residents of the state if the private entity defaults
119or if the participating governmental unit cancels the project;
120     3.  Would have adequate safeguards in place to ensure that
121the participating governmental unit or the private entity has
122the opportunity to add capacity to the proposed project and
123other infrastructure projects serving similar goals and
124objectives; and
125     4.  Would be owned by the participating governmental unit
126upon completion or termination of the public-private
127infrastructure project agreement.
128
129The department and participating governmental unit shall ensure
130that all reasonable costs to the state related to infrastructure
131projects that are not part of a participating governmental
132unit's work plan are borne by the private entity. The department
133and the participating governmental unit shall also ensure that
134all reasonable costs to the state and substantially affected
135local governments and utilities related to the infrastructure
136project are borne by the private entity for infrastructure
137projects that are owned by private entities.
138     (4)  If a public-private infrastructure project agreement
139authorizes the private entity to impose user fees:
140     (a)  The participating governmental unit may lease an
141existing public works facility to a private entity through a
142public-private partnership. The public-private partnership
143infrastructure project agreement must ensure that the
144infrastructure facility is properly operated, maintained, and
145renewed in accordance with the participating governmental unit's
146standards.
147     (b)  The participating governmental unit may develop new
148infrastructure projects or increase capacity of existing
149projects through public-private partnerships. The public-private
150partnership infrastructure project agreement must ensure that
151the public works infrastructure project is properly operated and
152maintained in accordance with applicable standards.
153     (c)  Revenue from user fees must be regulated by the
154participating governmental unit. The regulations governing
155future increases in fees or rates must be included in the
156public-private partnership infrastructure project agreement.
157     (d)  The public-private partnership infrastructure project
158agreement must include provisions that ensure that a portion of
159revenue from projects that generate revenue is returned to the
160participating governmental unit over the term of the agreement.
161If an infrastructure project agreement includes the lease of an
162existing public works facility, the participating governmental
163unit must receive a portion of the funds upon closing the
164agreement, with the remainder paid from excess revenue that
165accrues during the term of the public-private infrastructure
166project agreement.
167     (e)  The private entity must provide to the department an
168investment grade usage and revenue study prepared by an
169internationally recognized public works revenue expert who is
170recognized by the national bond rating agencies. The private
171entity must also provide a financing plan that identifies the
172project costs; lists the projected revenue by source, financing,
173major assumptions, and internal rate of return on private
174investments; specifies whether any government funds are
175necessary in order to deliver a cost-feasible project; and
176provides a total cash flow analysis beginning with
177implementation of the project and extending for the term of the
178public-private infrastructure project agreement.
179     (5)  Each infrastructure project constructed pursuant to
180this section shall be constructed in compliance with all
181requirements of federal, state, and local laws; state, regional,
182and local comprehensive plans; department rules, policies,
183procedures, and standards for infrastructure public works
184projects; and any other conditions that a participating
185governmental unit determines to be in the public interest.
186     (6)  The participating governmental unit may exercise its
187powers with respect to the development and construction of state
188and local public works infrastructure projects, including
189eminent domain, to facilitate the development and construction
190of infrastructure projects under this section. The department
191and a participating governmental unit may provide services to
192the private entity, but the public-private infrastructure
193project agreement must provide for full reimbursement for these
194services.
195     (7)  Except as otherwise provided in this section, this
196section does not grant additional powers to, or further
197restrict, local governmental entities from regulating and
198entering into cooperative arrangements with private entities for
199the planning, construction, and operation of infrastructure
200projects.
201     (8)  Procurement conducted by the private entity, the
202department, and participating governmental units shall adhere to
203the requirements of this subsection. Generally accepted business
204practices must be part of the procurement process or included in
205the public-private partnership infrastructure project agreement.
206     (a)  The department and participating governmental unit may
207request proposals from private entities for infrastructure
208projects or, if the department receives an unsolicited proposal,
209the department shall publish a notice in the Florida
210Administrative Weekly and a newspaper of general circulation at
211least once a week for 2 weeks stating that the department has
212received the proposal and will accept, for 120 days after the
213initial date of publication, other proposals for the same
214project purpose. A copy of the notice must be mailed to each
215local government in the affected area.
216     (b)  A private entity must be qualified by the department
217as part of the procurement process, which must ensure that the
218private entity meets at least the minimum qualifying standards
219of the participating governmental unit for providing
220professional services and constructing infrastructure projects.
221     (c)  Procurement documents must include provisions for
222performance by the private entity and payment of subcontractors,
223including, but not limited to, surety bonds, letters of credit,
224parent company guarantees, and lender and equity partner
225guarantees. The department and the participating governmental
226unit must balance the structure of the security requirements
227with the cost of the security in order to ensure the most
228efficient pricing.
229     (d)  After the public notification period has expired, the
230department and participating governmental unit shall rank the
231proposals in order of preference. In ranking the proposals, the
232department and participating governmental unit may consider
233factors that include, but are not limited to, professional
234qualifications, general business terms, innovative engineering
235or cost-reduction terms, financing plans, and the need for state
236funds to deliver the infrastructure project. If the department
237and participating governmental unit are not satisfied with the
238results of the negotiations, the department and participating
239governmental unit may terminate negotiations with the highest-
240ranked proposal and may consider the second-ranked and lower-
241ranked proposals, in order, using the same procedure. If only
242one proposal is received, the department and participating
243governmental unit may negotiate in good faith and, if the
244department and participating governmental unit are not satisfied
245with the results of the negotiations, the department and
246participating governmental unit may terminate negotiations with
247the proposer. Notwithstanding this subsection, the department
248and a participating governmental unit may reject all proposals
249at any point in the process up to completion of a contract with
250the proposer.
251     (e)  The department and a participating governmental unit
252must provide an independent analysis of the proposed public-
253private infrastructure project agreement which demonstrates its
254cost-effectiveness and overall public benefit before moving
255forward with procurement and, if the procurement moves forward,
256before awarding the contract.
257     (9)  The department and a participating governmental unit
258may use innovative finance techniques associated with a public-
259private partnership under this section, including, but not
260limited to, federal loans as provided in 23 and 49 C.F.R.,
261commercial bank loans, and hedges against inflation from
262commercial banks or other private sources.
263     (10)  The department and a participating governmental unit
264may enter into a public-private infrastructure project agreement
265that includes extended terms providing annual payments for
266performance based on the availability of services or the opening
267of a facility to the public. In addition to other provisions in
268this section, the following apply:
269     (a)  The annual payments under a public works
270infrastructure project agreement must be included in the
271department's and participating governmental unit's tentative
272work program and the long-range infrastructure plan for the
273applicable metropolitan planning organization. The department
274and participating governmental unit shall ensure that annual
275payments on multiyear public-private infrastructure project
276agreements are prioritized ahead of new capacity projects in the
277development and updating of the tentative work infrastructure
278project.
279     (b)  The annual payments must be subject to annual
280appropriation by the Legislature as specified in the General
281Appropriations Act which provides the initial funding support
282for the program.
283     (11)  The department shall compile a summary of new public
284works infrastructure projects each year. This summary shall
285include identification of planned funding beyond a 5-year
286tentative work program and the public involvement process for
287the project, including discussion of the use of future funds to
288deliver the project.
289     (12)  A public-private infrastructure project agreement
290under this section is limited to a term not exceeding 50 years.
291Upon making written findings that a public-private
292infrastructure project agreement requires a term in excess of 50
293years, the head of the participating governmental unit may
294authorize a term of up to 75 years. Infrastructure project
295agreements under this section may not have a term in excess of
29675 years unless specifically approved by the Legislature. The
297department and the participating governmental unit shall
298identify new projects having a term exceeding 75 years in the
299transmittal letter that accompanies the submission of the
300tentative work program to the Governor and the Legislature.
301     Section 2.  This act shall take effect July 1, 2009.


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