Florida Senate - 2009                                    SB 2060
       
       
       
       By Senator Baker
       
       
       
       
       20-01438-09                                           20092060__
    1                        A bill to be entitled                      
    2         An act relating to public-private partnership
    3         infrastructure projects; creating s. 287.09475, F.S.;
    4         providing legislative findings and intent; defining
    5         terms; providing for the Department of Management
    6         Services and a state agency or local government to
    7         receive or solicit proposals to enter into a public
    8         works infrastructure project agreement with a private
    9         entity, or a consortium of private entities, to build,
   10         operate, or finance a public works infrastructure
   11         project; providing criteria for the selection of the
   12         project and the private entity that will enter into a
   13         partnership agreement with the participating
   14         governmental unit to build or operate the project;
   15         requiring all reasonable costs to the state related to
   16         infrastructure project and not part of the
   17         governmental unit's work plan to be borne by the
   18         private entity; authorizing the private entity to
   19         impose user fees for the use of the infrastructure
   20         project by the public; setting forth financing and
   21         revenue criteria for the infrastructure project
   22         agreement; requiring that each infrastructure facility
   23         be in compliance with all applicable federal, state,
   24         and local laws, construction standards, and
   25         performance standards; authorizing each participating
   26         governmental unit to exercise any lawful power
   27         possessed by it to aid in the development and
   28         construction of the infrastructure project; providing
   29         procedures for requesting and considering proposals;
   30         authorizing the department and a participating
   31         governmental unit to use innovative financing
   32         techniques for the infrastructure project; requiring
   33         the department to compile a summary of new projects
   34         each year; limiting the term of the infrastructure
   35         project agreement to a specified number of years;
   36         providing that the head of the participating
   37         governmental unit may authorize an increase in the
   38         term of a project by 25 years; providing an effective
   39         date.
   40  
   41  Be It Enacted by the Legislature of the State of Florida:
   42  
   43         Section 1. Section 287.09475, Florida Statutes, is created
   44  to read:
   45         287.09475Public-private partnership infrastructure
   46  projects.—
   47         (1)The Legislature finds and declares that there is a
   48  public need for the rapid construction of public works
   49  infrastructure projects for the purpose of improving the
   50  economic, environmental, social, and cultural infrastructure of
   51  this state, and that it is in the public interest to provide for
   52  the construction or expansion of public works infrastructure
   53  projects.
   54         (2)As used in this section, the term:
   55         (a)“Department means the Department of Management
   56  Services.
   57         (b)Government” means the state or a political subdivision
   58  of the state.
   59         (c)Infrastructure project” or “public works
   60  infrastructure project” means a project to construct, operate,
   61  or maintain the basic public works of this state, including
   62  telecommunications, cable television, electricity, and broadband
   63  technology infrastructure, infrastructure for the transportation
   64  of gas, oil, or crude oil products; solid waste, waste water,
   65  and storm water infrastructure not connected with highway
   66  drainage; or other similar projects. The term does not include a
   67  transportation facility governed by s. 334.30.
   68         (d)Maintain” includes ordinary repair, rehabilitation,
   69  capital maintenance, maintenance replacement, and any other
   70  categories of maintenance on an infrastructure project as
   71  designated by the government.
   72         (e)“Operate” or “operation” means an action to construct,
   73  maintain, rehabilitate, improve, equip, or modify an
   74  infrastructure project.
   75         (f)“Private entity” means a person who enters into a
   76  public-private infrastructure project agreement with a
   77  participating governmental unit.
   78         (g)“Participating governmental unit means the
   79  governmental unit that enters into a public-private
   80  infrastructure project agreement with a private entity.
   81         (h)“Public-private infrastructure project agreement” means
   82  the document representing the agreement between a private entity
   83  and a participating governmental unit. The agreement must
   84  include:
   85         1.Acceptance by the participating governmental unit of a
   86  private contribution, including a money payment, in exchange for
   87  allowing the private entity to construct, operate, manage, or
   88  maintain a public works infrastructure project or services
   89  connected with an infrastructure project;
   90         2.The sharing of resources by the participating
   91  governmental unit with a private entity and the means of
   92  delivering a project or service to the public; and
   93         3.Cooperation in researching, developing, and implementing
   94  projects or services for an infrastructure project.
   95         (i)“User fee” means the rate, toll, fee, or other charges
   96  imposed on the public by a private entity for use of all or part
   97  of an infrastructure project.
   98         (3)(a)In cooperation with the participating government,
   99  the department and a participating governmental unit may receive
  100  or solicit proposals and enter into a public-private
  101  infrastructure project agreement with a private entity, or a
  102  consortium of private entities, to build, operate, manage,
  103  maintain, or finance a public works infrastructure project. The
  104  participating governmental unit may advance a project programmed
  105  in the governmental unit's adopted work program or its 10-year
  106  plan. The project may use funds provided by the private entity,
  107  which shall be reimbursed from user fees derived from the
  108  project as programmed in the adopted work program.
  109         (b)The department shall establish an application fee for
  110  the submission of unsolicited proposals under this section. The
  111  fee may not exceed the cost of evaluating the proposal.
  112         (c)The department and a participating governmental unit
  113  may engage the services of private consultants to assist in the
  114  evaluation.
  115         (d)Before approving a project, the department and the
  116  participating governmental unit must determine whether the
  117  proposed infrastructure project:
  118         1.Is in the public interest;
  119         2.Would have adequate safeguards in place to ensure that
  120  no additional costs or service disruptions would affect the
  121  public and residents of the state if the private entity defaults
  122  or if the participating governmental unit cancels the project;
  123         3.Would have adequate safeguards in place to ensure that
  124  the participating governmental unit or the private entity has
  125  the opportunity to add capacity to the proposed project and
  126  other infrastructure projects serving similar goals and
  127  objectives; and
  128         4.Would be owned by the participating governmental unit
  129  upon completion or termination of the public-private
  130  infrastructure project agreement.
  131  
  132  The department and participating governmental unit shall ensure
  133  that all reasonable costs to the state related to infrastructure
  134  projects that are not part of a participating governmental
  135  unit's work plan are borne by the private entity. The department
  136  and the participating governmental unit shall also ensure that
  137  all reasonable costs to the state and substantially affected
  138  local governments and utilities related to the infrastructure
  139  project are borne by the private entity for infrastructure
  140  projects that are owned by private entities.
  141         (4)If a public-private infrastructure project agreement
  142  authorizes the private entity to impose user fees:
  143         (a)The participating governmental unit may lease an
  144  existing public works facility to a private entity through a
  145  public-private partnership. The public-private partnership
  146  infrastructure project agreement must ensure that the
  147  infrastructure facility is properly operated, maintained, and
  148  renewed in accordance with the participating governmental unit's
  149  standards.
  150         (b)The participating governmental unit may develop new
  151  infrastructure projects or increase capacity of existing
  152  projects through public-private partnerships. The public-private
  153  partnership infrastructure project agreement must ensure that
  154  the public works infrastructure project is properly operated and
  155  maintained in accordance with applicable standards.
  156         (c)Revenue from user fees must be regulated by the
  157  participating governmental unit. The regulations governing
  158  future increases in fees or rates must be included in the
  159  public-private partnership infrastructure project agreement.
  160         (d)The public-private partnership infrastructure project
  161  agreement must include provisions that ensure that a portion of
  162  revenue from projects that generate revenue is returned to the
  163  participating governmental unit over the term of the agreement.
  164  If an infrastructure project agreement includes the lease of an
  165  existing public works facility, the participating governmental
  166  unit must receive a portion of the funds upon closing the
  167  agreement, with the remainder paid from excess revenue that
  168  accrues during the term of the public-private infrastructure
  169  project agreement.
  170         (e)The private entity must provide to the department an
  171  investment grade usage and revenue study prepared by an
  172  internationally recognized public works revenue expert who is
  173  recognized by the national bond rating agencies. The private
  174  entity must also provide a financing plan that identifies the
  175  project costs; lists the projected revenue by source, financing,
  176  major assumptions, and internal rate of return on private
  177  investments; specifies whether any government funds are
  178  necessary in order to deliver a cost-feasible project; and
  179  provides a total cash flow analysis beginning with
  180  implementation of the project and extending for the term of the
  181  public-private infrastructure project agreement.
  182         (5)Each infrastructure project constructed pursuant to
  183  this section shall be constructed in compliance with all
  184  requirements of federal, state, and local laws; state, regional,
  185  and local comprehensive plans; department rules, policies,
  186  procedures, and standards for infrastructure public works
  187  projects; and any other conditions that a participating
  188  governmental unit determines to be in the public interest.
  189         (6)The participating governmental unit may exercise its
  190  powers with respect to the development and construction of state
  191  and local public works infrastructure projects, including
  192  eminent domain, to facilitate the development and construction
  193  of infrastructure projects under this section. The department
  194  and a participating governmental unit may provide services to
  195  the private entity, but the public-private infrastructure
  196  project agreement must provide for full reimbursement for these
  197  services.
  198         (7)Except as otherwise provided in this section, this
  199  section does not grant additional powers to, or further
  200  restrict, local governmental entities from regulating and
  201  entering into cooperative arrangements with private entities for
  202  the planning, construction, and operation of infrastructure
  203  projects.
  204         (8)Procurement conducted by the private entity, the
  205  department, and participating governmental units shall adhere to
  206  the requirements of this subsection. Generally accepted business
  207  practices must be part of the procurement process or included in
  208  the public-private partnership infrastructure project agreement.
  209         (a)The department and participating governmental unit may
  210  request proposals from private entities for infrastructure
  211  projects or, if the department receives an unsolicited proposal,
  212  the department shall publish a notice in the Florida
  213  Administrative Weekly and a newspaper of general circulation at
  214  least once a week for 2 weeks stating that the department has
  215  received the proposal and will accept, for 120 days after the
  216  initial date of publication, other proposals for the same
  217  project purpose. A copy of the notice must be mailed to each
  218  local government in the affected area.
  219         (b)A private entity must be qualified by the department as
  220  part of the procurement process, which must ensure that the
  221  private entity meets at least the minimum qualifying standards
  222  of the participating governmental unit for providing
  223  professional services and constructing infrastructure projects.
  224         (c)Procurement documents must include provisions for
  225  performance by the private entity and payment of subcontractors,
  226  including, but not limited to, surety bonds, letters of credit,
  227  parent company guarantees, and lender and equity partner
  228  guarantees. The department and the participating governmental
  229  unit must balance the structure of the security requirements
  230  with the cost of the security in order to ensure the most
  231  efficient pricing.
  232         (d)After the public notification period has expired, the
  233  department and participating governmental unit shall rank the
  234  proposals in order of preference. In ranking the proposals, the
  235  department and participating governmental unit may consider
  236  factors that include, but are not limited to, professional
  237  qualifications, general business terms, innovative engineering
  238  or cost-reduction terms, financing plans, and the need for state
  239  funds to deliver the infrastructure project. If the department
  240  and participating governmental unit are not satisfied with the
  241  results of the negotiations, the department and participating
  242  governmental unit may terminate negotiations with the highest
  243  ranked proposal and may consider the second-ranked and lower
  244  ranked proposals, in order, using the same procedure. If only
  245  one proposal is received, the department and participating
  246  governmental unit may negotiate in good faith and, if the
  247  department and participating governmental unit are not satisfied
  248  with the results of the negotiations, the department and
  249  participating governmental unit may terminate negotiations with
  250  the proposer. Notwithstanding this subsection, the department
  251  and a participating governmental unit may reject all proposals
  252  at any point in the process up to completion of a contract with
  253  the proposer.
  254         (e)The department and a participating governmental unit
  255  must provide an independent analysis of the proposed public
  256  private infrastructure project agreement which demonstrates its
  257  cost-effectiveness and overall public benefit before moving
  258  forward with procurement and, if the procurement moves forward,
  259  before awarding the contract.
  260         (9)The department and a participating governmental unit
  261  may use innovative finance techniques associated with a public
  262  private partnership under this section, including, but not
  263  limited to, federal loans as provided in 23 and 49 C.F.R.,
  264  commercial bank loans, and hedges against inflation from
  265  commercial banks or other private sources.
  266         (10)The department and a participating governmental unit
  267  may enter into a public-private infrastructure project agreement
  268  that includes extended terms providing annual payments for
  269  performance based on the availability of services or the opening
  270  of a facility to the public. In addition to other provisions in
  271  this section, the following apply:
  272         (a)The annual payments under a public works infrastructure
  273  project agreement must be included in the department's and
  274  participating governmental unit's tentative work program and the
  275  long-range infrastructure plan for the applicable metropolitan
  276  planning organization. The department and participating
  277  governmental unit shall ensure that annual payments on multiyear
  278  public-private infrastructure project agreements are prioritized
  279  ahead of new capacity projects in the development and updating
  280  of the tentative work infrastructure project.
  281         (b)The annual payments must be subject to annual
  282  appropriation by the Legislature as specified in the General
  283  Appropriations Act which provides the initial funding support
  284  for the program.
  285         (11)The department shall compile a summary of new public
  286  works infrastructure projects each year. This summary shall
  287  include identification of planned funding beyond a 5-year
  288  tentative work program and the public involvement process for
  289  the project, including discussion of the use of future funds to
  290  deliver the project.
  291         (12)A public-private infrastructure project agreement
  292  under this section is limited to a term not exceeding 50 years.
  293  Upon making written findings that a public-private
  294  infrastructure project agreement requires a term in excess of 50
  295  years, the head of the participating governmental unit may
  296  authorize a term of up to 75 years. Infrastructure project
  297  agreements under this section may not have a term in excess of
  298  75 years unless specifically approved by the Legislature. The
  299  department and the participating governmental unit shall
  300  identify new projects having a term exceeding 75 years in the
  301  transmittal letter that accompanies the submission of the
  302  tentative work program to the Governor and the Legislature.
  303         Section 2. This act shall take effect July 1, 2009.