| 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 terms; |
| 5 | providing for state agencies and local governments to |
| 6 | receive or solicit proposals to enter into a public works |
| 7 | infrastructure project agreement with a private entity, or |
| 8 | a consortium of private entities, to build, operate, or |
| 9 | finance a public works infrastructure project; providing |
| 10 | criteria for the selection of the project and the private |
| 11 | entity that will enter into a partnership agreement with |
| 12 | the participating governmental unit to build or operate |
| 13 | the project; requiring all reasonable costs to the state |
| 14 | which are related to the infrastructure project and not |
| 15 | part of the governmental unit's work plan to be borne by |
| 16 | the private entity; authorizing the private entity to |
| 17 | impose user fees for the use of the infrastructure project |
| 18 | by the public; setting forth financing and revenue |
| 19 | criteria for the infrastructure project agreement; |
| 20 | requiring that each infrastructure facility be in |
| 21 | compliance with all applicable federal, state, and local |
| 22 | laws, construction standards, and performance standards; |
| 23 | authorizing each participating governmental unit to |
| 24 | exercise any lawful power possessed by it to aid in the |
| 25 | development and construction of the infrastructure |
| 26 | project; specifying applicable procurement procedures; |
| 27 | requiring the procurement documents to provide for the |
| 28 | payment of subcontractors; requiring a governmental unit |
| 29 | to provide an independent analysis of the cost- |
| 30 | effectiveness and public benefit of a proposed project; |
| 31 | authorizing participating governmental unit to use |
| 32 | innovative financing techniques for the infrastructure |
| 33 | project; authorizing a governmental unit to enter into a |
| 34 | public-private infrastructure project agreement that |
| 35 | provides for payments based on performance; limiting the |
| 36 | term of the infrastructure project agreement to a |
| 37 | specified number of years; prohibiting the department or a |
| 38 | participating governmental unit from soliciting proposals |
| 39 | from or entering into an agreement with a private entity |
| 40 | that engages in or benefits from dealings with a terrorist |
| 41 | state; providing an effective date. |
| 42 |
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| 43 | Be It Enacted by the Legislature of the State of Florida: |
| 44 |
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| 45 | Section 1. Section 287.09475, Florida Statutes, is created |
| 46 | to read: |
| 47 | 287.09475 Public-private partnership infrastructure |
| 48 | projects.- |
| 49 | (1) The Legislature finds and declares that there is a |
| 50 | public need for the rapid construction of public works |
| 51 | infrastructure projects for the purpose of improving the |
| 52 | economic, environmental, social, and cultural infrastructure of |
| 53 | this state, and that it is in the public interest to provide for |
| 54 | the construction or expansion of public works infrastructure |
| 55 | projects. |
| 56 | (2) As used in this section, the term: |
| 57 | (a) "Governmental unit" means a state agency, county, |
| 58 | municipality, school district, or an independent special |
| 59 | district. |
| 60 | (b) "Infrastructure project" or "public works |
| 61 | infrastructure project" means a project to construct, operate, |
| 62 | or maintain the basic public works of this state, including |
| 63 | telecommunications, cable television, electricity, and broadband |
| 64 | technology infrastructure; infrastructure for the transportation |
| 65 | of gas, oil, or crude oil products; solid waste, waste water, |
| 66 | and storm water infrastructure not connected with highway |
| 67 | drainage; or other similar projects. The term does not include a |
| 68 | transportation facility as defined in s. 334.03(31). |
| 69 | (c) "Maintain" includes ordinary repair, rehabilitation, |
| 70 | capital maintenance, maintenance replacement, and any other |
| 71 | categories of maintenance on an infrastructure project as |
| 72 | designated by a participating governmental unit. |
| 73 | (d) "Operate" or "operation" means an action to construct, |
| 74 | maintain, rehabilitate, improve, equip, or modify an |
| 75 | infrastructure project. |
| 76 | (e) "Private entity" means a person who enters into a |
| 77 | public-private infrastructure project agreement with a |
| 78 | participating governmental unit. |
| 79 | (f) "Participating governmental unit" means the |
| 80 | governmental unit that enters into a public-private |
| 81 | infrastructure project agreement with a private entity. |
| 82 | (g) "Public-private infrastructure project agreement" |
| 83 | means the document representing the agreement between a private |
| 84 | entity and a participating governmental unit. The agreement must |
| 85 | include: |
| 86 | 1. Acceptance by the participating governmental unit of a |
| 87 | private contribution, including a money payment, in exchange for |
| 88 | allowing the private entity to construct, operate, manage, or |
| 89 | maintain a public works infrastructure project or services |
| 90 | connected with an infrastructure project; |
| 91 | 2. The means of delivering a project or service to the |
| 92 | public; and |
| 93 | 3. Cooperation in researching, developing, and |
| 94 | implementing projects or services for an infrastructure project. |
| 95 | (h) "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) A governmental unit may receive or solicit |
| 99 | proposals and enter into a public-private infrastructure project |
| 100 | agreement with a private entity, or a consortium of private |
| 101 | entities, to build, operate, manage, maintain, or finance a |
| 102 | public works infrastructure project. A participating |
| 103 | governmental unit may advance a project included in its adopted |
| 104 | work program or 10-year plan. The project may use funds provided |
| 105 | by the private entity, which shall be reimbursed from user fees |
| 106 | derived from the project as programmed in the adopted work |
| 107 | program. |
| 108 | (b) Governmental units shall adopt rules to establish an |
| 109 | application fee for the submission of unsolicited proposals |
| 110 | under this section. The fee may not exceed the cost of |
| 111 | evaluating the proposal. |
| 112 | (c) A governmental unit may engage the services of private |
| 113 | consultants to assist in the evaluation of proposals. |
| 114 | (d) Before approving a project, the governmental unit must |
| 115 | determine whether the proposed infrastructure project: |
| 116 | 1. Is in the public interest; |
| 117 | 2. Will have adequate safeguards in place to ensure that |
| 118 | no additional costs or service disruptions would affect the |
| 119 | public and residents of the state if the private entity defaults |
| 120 | or if the governmental unit cancels the project; |
| 121 | 3. Will have adequate safeguards in place to ensure that |
| 122 | the governmental unit or the private entity has the opportunity |
| 123 | to add capacity to the proposed project and other infrastructure |
| 124 | projects serving similar goals and objectives; and |
| 125 | 4. Will be owned by the governmental unit upon completion |
| 126 | or termination of the public-private infrastructure project |
| 127 | agreement. |
| 128 |
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| 129 | A participating governmental unit shall require all reasonable |
| 130 | costs related to infrastructure projects that are not part of a |
| 131 | participating governmental unit's work plan to be borne by the |
| 132 | private entity. This includes all design, development, and |
| 133 | installation costs related to the project. The costs associated |
| 134 | with the design, development, and installation of the public- |
| 135 | private infrastructure project may be recouped in the user fee, |
| 136 | if applicable. The participating governmental unit shall also |
| 137 | require that all reasonable costs to the state and substantially |
| 138 | affected local governments and utilities related to the |
| 139 | infrastructure project are borne by the private entity for |
| 140 | infrastructure 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 require 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 require that |
| 154 | the public works infrastructure project is properly operated and |
| 155 | maintained in accordance with the participating governmental |
| 156 | unit's existing standards. |
| 157 | (c) Revenue from user fees must be regulated by the |
| 158 | participating governmental unit. The regulations governing |
| 159 | future increases in fees or rates must be included in the |
| 160 | public-private partnership infrastructure project agreement. |
| 161 | (d) The public-private partnership infrastructure project |
| 162 | agreement must include provisions requiring that a portion of |
| 163 | revenue from projects that generate revenue is returned to the |
| 164 | participating governmental unit over the term of the agreement. |
| 165 | If an infrastructure project agreement includes the lease of an |
| 166 | existing public works facility, the participating governmental |
| 167 | unit must receive a portion of the funds upon closing the |
| 168 | agreement, with the remainder paid from excess revenue that |
| 169 | accrues during the term of the public-private infrastructure |
| 170 | project agreement. |
| 171 | (e) The private entity must provide to the participating |
| 172 | governmental unit an investment-grade usage and revenue study |
| 173 | prepared by an internationally recognized public works revenue |
| 174 | expert who is recognized by the national bond rating agencies. |
| 175 | The private entity must also provide a financing plan that |
| 176 | identifies the project costs; lists the projected revenue by |
| 177 | source; states the methodology of the financing plan, including |
| 178 | supporting calculations and assumptions used to evaluate costs |
| 179 | and revenues, and the internal rate of return on private |
| 180 | investments; specifies whether any government funds are |
| 181 | necessary in order to deliver a cost-feasible project; and |
| 182 | provides a total cash flow analysis beginning with |
| 183 | implementation of the project and extending for the term of the |
| 184 | public-private infrastructure project agreement. |
| 185 | (5) Each infrastructure project constructed pursuant to |
| 186 | this section shall be constructed in compliance with all |
| 187 | requirements of federal, state, and local laws; state, regional, |
| 188 | and local comprehensive plans; applicable rules, policies, |
| 189 | procedures, and standards for infrastructure public works |
| 190 | projects; and any other conditions that a participating |
| 191 | governmental unit determines to be in the public interest. |
| 192 | (6) The participating governmental unit may exercise its |
| 193 | powers with respect to the development and construction of state |
| 194 | and local public works infrastructure projects, including |
| 195 | eminent domain, to facilitate the development and construction |
| 196 | of infrastructure projects under this section. The participating |
| 197 | governmental unit may provide services to the private entity, |
| 198 | but the public-private infrastructure project agreement must |
| 199 | provide for full reimbursement for these services. |
| 200 | (7) Except as otherwise provided in this section, this |
| 201 | section does not grant additional powers to, or further |
| 202 | restrict, local governmental entities from regulating and |
| 203 | entering into cooperative arrangements with private entities for |
| 204 | the planning, construction, and operation of infrastructure |
| 205 | projects. |
| 206 | (8) Procurement conducted by a governmental unit shall |
| 207 | adhere to the requirements set forth in s. 287.057. |
| 208 | (a) Procurement documents must include provisions for |
| 209 | performance by the private entity and payment of subcontractors, |
| 210 | including, but not limited to, surety bonds, letters of credit, |
| 211 | parent company guarantees, and lender and equity partner |
| 212 | guarantees. The governmental unit must make a good faith effort |
| 213 | to balance the structure of the security requirements with the |
| 214 | cost of the security in order to ensure the most efficient |
| 215 | pricing. |
| 216 | (b) The governmental unit must provide an independent |
| 217 | analysis of the proposed public-private infrastructure project |
| 218 | agreement which demonstrates its cost-effectiveness and overall |
| 219 | public benefit before moving forward with procurement and, if |
| 220 | the procurement moves forward, before awarding the contract. |
| 221 | (9) A governmental unit may use innovative finance |
| 222 | techniques associated with a public-private partnership under |
| 223 | this section, including, but not limited to, federal loans as |
| 224 | provided in 23 and 49 C.F.R. and commercial bank loans. |
| 225 | (10) A participating governmental unit may enter into a |
| 226 | public-private infrastructure project agreement that includes |
| 227 | extended terms providing annual payments for performance based |
| 228 | on the availability of services or the opening of a facility to |
| 229 | the public. In addition to other provisions in this section, the |
| 230 | following apply: |
| 231 | (a) The annual payments under a public works |
| 232 | infrastructure project agreement must be included in the |
| 233 | participating governmental unit's tentative work program and the |
| 234 | long-range infrastructure plan for the applicable metropolitan |
| 235 | planning organization. The participating governmental unit shall |
| 236 | ensure that annual payments on multiyear, public-private |
| 237 | infrastructure project agreements are prioritized ahead of new |
| 238 | capacity projects in the development and updating of the |
| 239 | tentative work infrastructure project. |
| 240 | (b) The annual payments must be subject to annual |
| 241 | appropriation by the Legislature as specified in the General |
| 242 | Appropriations Act or subject to appropriation by the governing |
| 243 | body of the governmental unit that provides the initial funding |
| 244 | support for the program. |
| 245 | (11) A public-private infrastructure project agreement |
| 246 | under this section is limited to a term not exceeding 50 years. |
| 247 | All renewals of the agreement must be expressly approved by the |
| 248 | governing body of the participating governmental unit or an |
| 249 | agency head. |
| 250 | (12) A participating governmental unit may not receive or |
| 251 | solicit proposals from, or enter into a public-private |
| 252 | infrastructure project agreement with, any private entity or |
| 253 | consortium of private entities to build, operate, manage, |
| 254 | maintain, or finance a public works infrastructure project under |
| 255 | this section if the private entity or consortium of private |
| 256 | entities engages in or in any way benefits from dealings with, |
| 257 | or activities related to or involving, a terrorist state. For |
| 258 | the purposes of this section, "terrorist state" is defined as |
| 259 | any state, country, or nation designated by the United States |
| 260 | Department of State as a state sponsor of terrorism. |
| 261 | Section 2. This act shall take effect July 1, 2010. |