Florida Senate - 2012                              CS for SB 576
       By the Committee on Community Affairs; and Senator Bennett
       578-03299-12                                           2012576c1
    1                        A bill to be entitled                      
    2         An act relating to public-private partnerships;
    3         creating s. 287.05712, F.S.; providing definitions;
    4         providing legislative findings and intent relating to
    5         the construction or upgrade of facilities by private
    6         entities which are used predominately for a public
    7         purpose; requiring public entities to develop and
    8         adopt guidelines governing procedures and criteria for
    9         the selection of projects and public-private
   10         agreements; providing procurement procedures;
   11         providing project-approval requirements; providing
   12         project qualifications and process; providing for
   13         notice to affected local jurisdictions; providing for
   14         interim and comprehensive agreements between the
   15         public and private entities; providing for use fees;
   16         providing for private financing requirements;
   17         providing powers and duties for private entities;
   18         providing for expiration or termination of agreements;
   19         providing for the applicability of sovereign immunity
   20         for public entities with respect to qualified
   21         projects; providing for construction of the act;
   22         providing an effective date.
   24  Be It Enacted by the Legislature of the State of Florida:
   26         Section 1. Section 287.05712, Florida Statutes, is created
   27  to read:
   28         287.05712 Public-private partnerships.—
   29         (1) DEFINITIONS.—As used in this section, the term:
   30         (a) “Affected local jurisdiction” means any county or
   31  municipality in which all or a portion of a qualifying project
   32  is located.
   33         (b) “Appropriating body” means the body responsible for
   34  appropriating or authorizing funding to pay for a qualifying
   35  project.
   36         (c) “Develop” or “development” means to plan, design,
   37  develop, finance, lease, acquire, install, construct, or expand.
   38         (d) “Fees” means fees or other charges imposed by the
   39  private entity of a qualifying project for use of all or a
   40  portion of such qualifying project pursuant to a comprehensive
   41  agreement.
   42         (e) “Lease payment” means any form of payment, including a
   43  land lease, by a public entity to the private entity for the use
   44  of a qualifying project.
   45         (f) “Material default” means any default by the private
   46  entity in the performance of its duties which jeopardizes
   47  adequate service to the public from a qualifying project.
   48         (g) “Operate” means to finance, maintain, improve, equip,
   49  modify, repair, or operate.
   50         (h) “Private entity” means any natural person, corporation,
   51  general partnership, limited liability company, limited
   52  partnership, joint venture, business trust, public benefit
   53  corporation, nonprofit entity, or other private business entity.
   54         (i) “Proposal” means a detailed proposal accepted by a
   55  responsible public entity beyond a conceptual level of review at
   56  which issues such as fixing costs, payment schedules, financing,
   57  deliverables, and project schedule are defined.
   58         (j) “Qualifying project” means any:
   59         1. Public-purpose facility or project, including, but not
   60  limited to, a public school building and any functionally
   61  related and subordinate facility, including any stadium or other
   62  facility primarily used for school events.
   63         2. Building or facility that meets a public purpose and is
   64  developed or operated by or for any public entity.
   65         3. Improvements, including equipment, of buildings to be
   66  principally used by a public entity.
   67         4. Water, wastewater, or surface water management facility
   68  and other related infrastructure.
   69         (k) “Responsible public entity” means any county,
   70  municipality, or other political subdivision of the state; any
   71  public body politic and corporate; or any regional entity that
   72  serves a public purpose and has authority to develop or operate
   73  a qualifying project.
   74         (l) “Revenues” means all revenues, income, earnings, user
   75  fees, lease payments, or other service payments relating to the
   76  development or operation of a qualifying project, including, but
   77  not limited to, money received as grants or otherwise from the
   78  Federal Government, from any public entity, or from any agency
   79  or instrumentality of the foregoing in aid of a qualifying
   80  project.
   81         (m) “Service contract” means a contract entered into
   82  between a public entity and the private entity.
   83         (n) “Service payments” means payments to the private entity
   84  of a qualifying project pursuant to a service contract.
   85         (o) “Water or wastewater management facility” means a
   86  project for the treatment, storage, disposal, or distribution of
   87  water or wastewater.
   88         (2) LEGISLATIVE FINDINGS AND INTENT.—The Legislature finds
   89  that there is a public need for the construction or upgrade of
   90  facilities that are used predominantly for public purposes and
   91  that it is in the public’s interest to provide for the
   92  construction or upgrade of such facilities.
   93         (a) The Legislature also finds that:
   94         1. There is a public need for timely and cost-effective
   95  acquisition, design, construction, improvement, renovation,
   96  expansion, equipping, maintenance, operation, implementation, or
   97  installation of public projects, including educational
   98  facilities, water or wastewater management facilities and
   99  infrastructure, technology infrastructure, and any other public
  100  infrastructure and government facilities within the state which
  101  serve a public need and purpose, and that such public need may
  102  not be wholly satisfied by existing procurement methods.
  103         2. There are inadequate resources to develop new
  104  educational facilities, water or wastewater management
  105  facilities and infrastructure, technology infrastructure, and
  106  other public infrastructure and government facilities for the
  107  benefit of residents of this state, and that it has been
  108  demonstrated that public-private partnerships can meet these
  109  needs by improving the schedule for delivery, lowering the cost,
  110  and providing other benefits to the public.
  111         3. There are state and federal tax incentives that promote
  112  partnerships between public and private entities to develop and
  113  operate qualifying projects.
  114         4. A procurement under this section serves the public
  115  purpose of this section if such action facilitates the timely
  116  development or operation of qualifying projects.
  117         (b) The Legislature declares that it is the intent of this
  118  section to encourage investment in the state by private
  119  entities, to facilitate various bond financing mechanisms,
  120  private capital, and other funding sources for the development
  121  and operation of qualifying projects, including expansion and
  122  acceleration of such financing to meet the public need, and to
  123  provide the greatest possible flexibility to public and private
  124  entities contracting for the provision of public services.
  125         (3) ADOPTION OF GUIDELINES.—
  126         (a) Before requesting or considering a proposal for a
  127  qualifying project, a responsible public entity shall adopt and
  128  make publicly available guidelines that enable the public entity
  129  to comply with this section. Such guidelines must be reasonable,
  130  encourage competition, and guide the selection of projects under
  131  the purview of the public entity.
  132         (b) The guidelines must include:
  133         1. Opportunities for competition through public notice and
  134  the availability of representatives of the responsible public
  135  entity to meet with private entities considering a proposal.
  136         2. Reasonable criteria for choosing among competing
  137  proposals.
  138         3. Suggested timelines for selecting proposals and
  139  negotiating an interim or comprehensive agreement.
  140         4. Authorization for accelerated selection and review and
  141  documentation timelines for proposals involving a qualifying
  142  project that the responsible public entity deems a priority.
  143         5. Procedures for financial review and analysis which, at a
  144  minimum, include a cost-benefit analysis, an assessment of
  145  opportunity cost, and consideration of the results of all
  146  studies and analyses related to the proposed qualifying project.
  147  The procedures must also include requirements for disclosing
  148  such analysis to the appropriating body for review before the
  149  execution of an interim or comprehensive agreement.
  150         6. Consideration of the nonfinancial benefits of a proposed
  151  qualifying project.
  152         7. A mechanism for the appropriating body to review a
  153  proposed interim or comprehensive agreement before execution.
  154         8. Establishment of criteria for the creation and
  155  responsibilities of a public-private partnership oversight
  156  committee that includes members representing the responsible
  157  public entity and the appropriating body. Such criteria must
  158  include the scope, costs, and duration of the qualifying
  159  project, as well as whether the project involves or affects
  160  multiple public entities. If formed, the oversight committee
  161  shall be an advisory committee that reviews the terms of a
  162  proposed interim or comprehensive agreement.
  163         9. Analysis of the adequacy of the information released
  164  when seeking competing proposals and providing for the
  165  enhancement of that information, if deemed necessary, to
  166  encourage competition.
  167         10. Establishment of criteria, key decision points, and
  168  approvals required to ensure that the responsible public entity
  169  considers the extent of competition before selecting proposals
  170  and negotiating an interim or comprehensive agreement.
  171         11. The publishing and posting of public notice of a
  172  private entity’s request for approval of a qualifying project,
  173  including:
  174         a. Specific information and documentation to be released
  175  regarding the nature, timing, and scope of the project.
  176         b. A reasonable time period, as determined by the
  177  responsible public entity, of at least 45 days, which encourages
  178  competition and public-private partnerships in accordance with
  179  the goals of this section, during which time the responsible
  180  public entity is to receive competing proposals.
  181         c. A requirement for advertising the public notice and
  182  posting the notice on the Internet.
  183         12. A requirement that the responsible public entity engage
  184  the services of qualified professionals, which may include an
  185  architect, professional engineer, or certified public
  186  accountant, not otherwise employed by the responsible public
  187  entity, to provide an independent analysis regarding the
  188  specifics, advantages, disadvantages, and long-term and short
  189  term costs of a request by a private entity for approval of a
  190  qualifying project, unless the governing body of the public
  191  entity determines that such analysis should be performed by
  192  employees of the public entity.
  193         (4) PROCUREMENT PROCEDURES.—The responsible public entity
  194  may receive or solicit proposals and, with the approval of the
  195  Legislature, or other appropriate local government appropriation
  196  process as evidenced by approval of the project in the public
  197  entity’s work program, enter into agreements with private
  198  entities, or consortia thereof, for the building, upgrade,
  199  operation, ownership, or financing of facilities.
  200         (a) A responsible public entity may not consider any
  201  request by a private entity for approval of a qualifying project
  202  until the responsible public entity has adopted, or incorporated
  203  and made publicly available, in accordance with subsection (3),
  204  guidelines that enable the responsible public entity to comply
  205  with this section.
  206         (b) By rule, ordinance, or guideline as applicable, the
  207  responsible public entity shall establish an application fee for
  208  the submission of unsolicited proposals under this section. The
  209  fee must be sufficient to pay the costs of evaluating the
  210  proposal. The responsible public entity may engage the services
  211  of private consultants to assist in the evaluation.
  212         (c) The responsible public entity may request proposals
  213  from private entities for public-private projects or, if the
  214  public entity receives an unsolicited proposal, the public
  215  entity shall publish a notice in the Florida Administrative
  216  Weekly and a newspaper of general circulation at least once a
  217  week for 2 weeks stating that the public entity has received the
  218  proposal and will accept other proposals for the same project
  219  for 60 days after the initial date of publication. A copy of the
  220  notice must be mailed to each local government in the affected
  221  area.
  222         (d) A responsible public entity that is a school board or a
  223  county or municipality may enter into an interim or
  224  comprehensive agreement only with the approval of the local
  225  governing body.
  226         (e) Before approval, the responsible public entity must
  227  determine that the proposed project:
  228         1. Is in the public’s best interest;
  229         2. Does not require the use of state funds unless the
  230  project is for a facility that is owned by the responsible
  231  public entity or for a facility for which ownership will be
  232  conveyed to the responsible public entity;
  233         3. Has adequate safeguards in place to ensure that
  234  additional costs or service disruptions would not be imposed on
  235  the public and residents of the state in the event of default or
  236  cancellation of the agreement by the public entity;
  237         4. Has adequate safeguards in place to ensure that the
  238  responsible public entity or the private entity has the
  239  opportunity to add capacity to the proposed project and other
  240  facilities serving similar predominantly public purposes; and
  241         5. Would be owned by the responsible public entity upon
  242  completion or termination of the agreement and upon payment of
  243  all amounts financed.
  244         (f) Technical studies and independent analyses must comply
  245  with the following:
  246         1. A private entity must provide an investment-grade
  247  technical study prepared by a nationally recognized expert who
  248  is accepted by the national bond rating agencies. The private
  249  entity must also provide a finance plan, consistent with
  250  subsection (11), which identifies the project cost, revenues by
  251  source, financing, major assumptions, internal rate of return on
  252  private investments, and whether any government funds are
  253  assumed to deliver a cost-feasible project, and a total cash
  254  flow analysis beginning with implementation of the project and
  255  extending for the term of the agreement.
  256         2. In evaluating a request, including, but not limited to,
  257  the private entity’s technical study, the responsible public
  258  entity may rely upon internal staff reports prepared by
  259  personnel familiar with the operation of similar facilities or
  260  the advice of external advisors or consultants having relevant
  261  experience.
  262         (g) The responsible public entity must ensure that all
  263  reasonable costs to the state related to facilities which are
  264  not to be transferred to the responsible public entity are borne
  265  by the private entity. The responsible public entity must also
  266  ensure that all reasonable costs to the state and to
  267  substantially affected local governments and utilities which are
  268  related to the private facility are borne by the private entity
  269  for facilities that are owned by the private entity. For
  270  projects owned by the responsible public entity, the public
  271  entity may use state resources to assist with funding and
  272  financing the project as provided under the public entity’s
  273  enabling legislation.
  274         (5) PROJECT APPROVAL REQUIREMENTS.—A request by a private
  275  entity for approval of a qualifying project must be accompanied
  276  by the following material and information, unless waived by the
  277  responsible public entity:
  278         (a) A topographic map with a scale of 1:2,000 or other
  279  appropriate scale indicating the location of the qualifying
  280  project.
  281         (b) A description of the qualifying project, including the
  282  conceptual design of such facilities or a conceptual plan for
  283  the provision of services, and a schedule for the initiation of
  284  and completion of the qualifying project which includes the
  285  proposed major responsibilities and a timeline for activities to
  286  be performed by both the public and private entity.
  287         (c) A statement setting forth the method by which the
  288  private entity proposes to secure any necessary property
  289  interests required for the qualifying project.
  290         (d) Information relating to current plans for the
  291  development of facilities or technology infrastructure to be
  292  used by a public entity which is similar to the qualifying
  293  project being proposed by the private entity, if any, of each
  294  affected local jurisdiction.
  295         (e) A list of all permits and approvals required for the
  296  qualifying project from local, state, or federal agencies and a
  297  projected schedule for obtaining such permits and approvals.
  298         (f) A list of public water or wastewater management
  299  facilities, if any, which will be crossed by the qualifying
  300  project and a statement of the plans of the private entity to
  301  accommodate such crossings.
  302         (g) A statement setting forth the private entity’s general
  303  plans for financing the qualifying project, including the
  304  sources of the private entity’s funds and identification of any
  305  dedicated revenue source or proposed debt or equity investment
  306  on the behalf of the private entity.
  307         (h) The names and addresses of persons who may be contacted
  308  for further information concerning the request.
  309         (i) User fees, lease payments, and other service payments
  310  over the term of an interim or comprehensive agreement, and the
  311  methodology and circumstances for changes to such user fees,
  312  lease payments, and other service payments over time.
  313         (j) Any additional material and information that the
  314  responsible public entity may reasonably request.
  316         (a) Public-private partnerships shall be qualified by the
  317  responsible public entity as part of the procurement process
  318  outlined in the procurement documents if such process ensures
  319  that the private entity meets at least the minimum standards
  320  contained in the responsible public entity’s guidelines for
  321  qualifying professional architectural, engineering, and
  322  contracting services before submitting a proposal under the
  323  procurement.
  324         (b) The responsible public entity must ensure that
  325  procurement documents include provisions for the private
  326  entity’s performance and payment of subcontractors, including,
  327  but not limited to, surety bonds, letters of credit, parent
  328  company guarantees, and lender and equity partner guarantees.
  329  For those components of the qualifying project which involve
  330  construction, performance and payment bonds are required and are
  331  subject to the recordation, notice, suit limitation, and other
  332  requirements of s. 255.05. The responsible public entity shall
  333  balance the structure of the security package for the public
  334  private partnership which ensures performance and payment of
  335  subcontractors with the cost of the security to ensure the most
  336  efficient pricing. The procurement documents must contain
  337  contract provisions addressing termination, default, and exit
  338  transition obligations of the private entity.
  339         (c) After the public notification period has expired, the
  340  responsible public entity shall rank the proposals in order of
  341  preference. In ranking the proposals, the responsible public
  342  entity may consider factors that include, but need not be
  343  limited to, professional qualifications, general business terms,
  344  innovative engineering or cost-reduction terms, finance plans,
  345  and the need for state funds in order to deliver the project. If
  346  the public entity is not satisfied with the results of the
  347  negotiations, the public entity may terminate negotiations with
  348  the proposer. If these negotiations are unsuccessful, the
  349  responsible public entity may go to the second-ranked and lower
  350  ranked firms, in order, using this same procedure. If only one
  351  proposal is received, the responsible public entity may
  352  negotiate in good faith and, if the public entity is not
  353  satisfied with the results of the negotiations, the public
  354  entity may terminate negotiations with the proposer.
  355  Notwithstanding this subsection, the responsible public entity
  356  may reject all proposals at any point in the process up to
  357  execution of a contract with the proposer.
  358         (d)The responsible public entity shall perform an
  359  independent analysis, or other analysis in accordance with
  360  paragraph (4)(f), of the proposed public-private partnership
  361  which demonstrates the cost-effectiveness and overall public
  362  benefit at the following times:
  363         1.Before the procurement process; and
  364         2.Before awarding the contract.
  365         (e) The responsible public entity may approve the
  366  development or operation of an educational facility, a water or
  367  wastewater management facility and related infrastructure,
  368  technology infrastructure or other public infrastructure, or a
  369  governmental facility needed by the public entity as a
  370  qualifying project, or the design or equipping of a qualifying
  371  project so developed or operated, if:
  372         1. There is a public need for or benefit derived from a
  373  project of the type the private entity proposes as a qualifying
  374  project.
  375         2. The estimated cost of the qualifying project is
  376  reasonable in relation to similar facilities.
  377         3. The private entity’s plans will result in the timely
  378  acquisition, design, construction, improvement, renovation,
  379  expansion, equipping, maintenance, or operation of the
  380  qualifying project.
  381         (f) The responsible public entity may charge a reasonable
  382  fee to cover the costs of processing, reviewing, and evaluating
  383  the request, including, but not limited to, reasonable attorney
  384  fees and fees for financial, technical, and other necessary
  385  advisors or consultants.
  386         (g) Upon approval of a qualifying project, the responsible
  387  public entity shall establish a date for the commencement of
  388  activities related to the qualifying project. The responsible
  389  public entity may extend such date.
  390         (h) Approval of a qualifying project by the responsible
  391  public entity is subject to entering into a comprehensive
  392  agreement with the private entity.
  394         (a) Any private entity requesting approval from, or
  395  submitting a proposal to, a responsible public entity must
  396  notify each affected local jurisdiction by furnishing a copy of
  397  its request or proposal to each affected local jurisdiction.
  398         (b) Each affected local jurisdiction that is not a
  399  responsible public entity for the respective qualifying project
  400  shall, within 60 days after receiving such notice, submit any
  401  comments it may have in writing to the responsible public entity
  402  and indicate whether the facility is compatible with the local
  403  comprehensive plan, the local infrastructure development plans,
  404  the capital improvements budget, or other governmental spending
  405  plan. Such comments shall be given consideration by the
  406  responsible public entity before entering a comprehensive
  407  agreement with a private entity.
  408         (8) INTERIM AGREEMENT.—Before, or in connection with, the
  409  negotiation of a comprehensive agreement, the responsible public
  410  entity may enter into an interim agreement with the private
  411  entity proposing the development or operation of the qualifying
  412  project. An interim agreement does not obligate the responsible
  413  public entity to enter into a comprehensive agreement. An
  414  interim agreement must be limited to provisions that:
  415         (a) Authorize the private entity to commence activities for
  416  which it may be compensated related to the proposed qualifying
  417  project, including, but not limited to, project planning and
  418  development, design and engineering, environmental analysis and
  419  mitigation, surveys, or other activities concerning any part of
  420  the proposed qualifying project, and ascertaining the
  421  availability of financing for the proposed facility or
  422  facilities.
  423         (b) Establish the process and timing of the negotiation of
  424  the comprehensive agreement.
  425         (c) Contain any other provisions related to any aspect of
  426  the development or operation of a qualifying project which the
  427  responsible public entity and the private entity deem
  428  appropriate.
  430         (a) Before developing or operating the qualifying project,
  431  the private entity shall enter into a comprehensive agreement
  432  with the responsible public entity. The comprehensive agreement
  433  shall provide for:
  434         1. Delivery of maintenance, performance, and payment bonds
  435  and letters of credit in connection with the development or
  436  operation of the qualifying project in the forms and amounts
  437  satisfactory to the responsible public entity. For those
  438  components of the qualifying project which involve construction,
  439  the form and amount of the bonds must comply with s. 255.05.
  440         2. Review of plans and specifications for the qualifying
  441  project by the responsible public entity and approval by the
  442  responsible public entity if the plans and specifications
  443  conform to standards acceptable to the responsible public
  444  entity. This subparagraph does not require the private entity to
  445  complete the design of a qualifying project before the execution
  446  of a comprehensive agreement.
  447         3. Inspection of the qualifying project by the responsible
  448  public entity to ensure that the operator’s activities are
  449  acceptable to the public entity in accordance with the
  450  comprehensive agreement.
  451         4. Maintenance of a policy or policies of public liability
  452  insurance, copies of which shall be filed with the responsible
  453  public entity accompanied by proofs of coverage, or self
  454  insurance, each in the form and amount satisfactory to the
  455  responsible public entity and reasonably sufficient to ensure
  456  coverage of tort liability to the public and employees and to
  457  enable the continued operation of the qualifying project.
  458         5. Monitoring the practices of the private entity by the
  459  responsible public entity to ensure that the qualifying project
  460  is properly maintained.
  461         6. Reimbursement to be paid to the responsible public
  462  entity for services provided by the responsible public entity.
  463         7. Filing of appropriate financial statements on a periodic
  464  basis.
  465         8. Procedures governing the rights and responsibilities of
  466  the responsible public entity and the private entity in the
  467  event the comprehensive agreement is terminated or there is a
  468  material default by the private entity. Such procedures must
  469  include conditions governing assumption of the duties and
  470  responsibilities of the private entity by the responsible public
  471  entity and the transfer or purchase of property or other
  472  interests of the private entity by the responsible public
  473  entity.
  474         9. Fees, lease payments, or service payments as may be
  475  established by agreement of the parties. A copy of any service
  476  contract shall be filed with the responsible public entity. In
  477  negotiating user fees, the parties shall establish fees that are
  478  the same for persons using the facility under like conditions
  479  and that will not materially discourage use of the qualifying
  480  project. The execution of the comprehensive agreement or any
  481  amendment thereto constitutes conclusive evidence that the fees,
  482  lease payments, or service payments provided for comply with
  483  this section. Fees or lease payments established in the
  484  comprehensive agreement as a source of revenues may be in
  485  addition to, or in lieu of, service payments.
  486         10. Duties of the private entity, including terms and
  487  conditions that the responsible public entity determine serve
  488  the public purpose of this section.
  489         (b) The comprehensive agreement may include:
  490         1. An agreement by the responsible public entity to make
  491  grants or loans to the private entity from amounts received from
  492  the federal, state, or local government or any agency or
  493  instrumentality thereof.
  494         2. Provisions under which each entity agrees to provide
  495  notice of default and cure rights for the benefit of the other
  496  entity, including, but not limited to, provisions regarding
  497  unavoidable delays.
  498         3. Provisions whereby the authority and duties of the
  499  private entity under this section will cease and the qualifying
  500  project be dedicated to the responsible public entity or, if the
  501  qualifying project was initially dedicated by an affected local
  502  jurisdiction, to such affected local jurisdiction for public
  503  use.
  504         (10) FEES.—
  505         (a) Agreements entered into pursuant to this section may
  506  authorize the private entity to impose fees for the use of the
  507  facility. The following provisions apply to such agreements:
  508         1. The public-private partnership agreement must ensure
  509  that the facility is properly operated, maintained, and renewed
  510  in accordance with the responsible public entity’s standards.
  511         2. The responsible public entity may develop new facilities
  512  or increase capacity in existing facilities through public
  513  private partnerships.
  514         3. The responsible public entity may lease existing fee
  515  for-use facilities through public-private partnerships.
  516         4. Any revenues must be regulated by the responsible public
  517  entity pursuant to guidelines or rules established pursuant to
  518  subsection (3). The regulations governing the future increase of
  519  fees must be included in the public-private partnership
  520  agreement.
  521         (b) The responsible public entity shall include provisions
  522  in the public-private partnership agreement which ensure that a
  523  negotiated portion of revenues from fee-generating projects are
  524  returned to the public entity over the life of the agreement. In
  525  the case of a lease of an existing facility, the responsible
  526  public entity shall receive a portion of funds upon closing on
  527  the agreements and also a portion of excess revenues over the
  528  life of the public-private partnership.
  529         (11) FINANCING.—
  530         (a) A private entity may enter into private-source
  531  financing agreements between financing sources and the private
  532  entity. All financing agreements and any liens on the property
  533  or facility must be paid in full at the applicable closing that
  534  transfers ownership of a facility to a responsible public
  535  entity.
  536         (b) The responsible public entity may lend funds from its
  537  trust fund to private entities that construct projects
  538  containing facilities that are approved under this section. To
  539  be eligible, a private entity must comply with s. 215.97 and
  540  must provide an indication from a nationally recognized rating
  541  agency that the senior bonds for the project will be investment
  542  grade, or must provide credit support, such as a letter of
  543  credit or other means acceptable to the responsible public
  544  entity, to ensure that the loans will be fully repaid. The
  545  state’s liability for the funding of a facility is limited to
  546  the amount approved for that specific facility in the
  547  responsible public entity’s 5-year work program adopted pursuant
  548  to the responsible public entity’s rules, or otherwise limited
  549  to 15 percent of the responsible public entity’s total funding
  550  for similar projects in a given fiscal year.
  551         (c) The responsible public entity may use innovative
  552  finance techniques associated with a public-private partnership
  553  under this section, including, but not limited to, federal loans
  554  as provided in Titles 23 and 49 C.F.R., commercial bank loans,
  555  and hedges against inflation from commercial banks or other
  556  private sources. A responsible public entity may use the model
  557  financing agreement provided pursuant to s. 489.145(6) for its
  558  financing of a facility owned by a responsible public entity. A
  559  financing agreement may not require the responsible public
  560  entity to indemnify the financing source, subject the
  561  responsible public entity’s facility to liens in violation of s.
  562  11.066(5), or secure financing by a responsible public entity
  563  with a pledge of security interest, and any such provisions are
  564  void.
  566         (a) The private entity shall:
  567         1. Develop or operate the qualifying project in a manner
  568  that is acceptable to the responsible public entity in
  569  accordance with the provisions of an interim or comprehensive
  570  agreement.
  571         2. Maintain, or provide by contract for the maintenance or
  572  upgrade of, the qualifying project if required by an interim or
  573  comprehensive agreement.
  574         3. Cooperate with the responsible public entity in making
  575  best efforts to establish any interconnection with the
  576  qualifying project requested by the responsible public entity.
  577         4. Comply with an interim or comprehensive agreement and
  578  any lease or service contract.
  579         (b) Each private facility constructed pursuant to this
  580  section must comply with all requirements of federal, state, and
  581  local laws; state, regional, and local comprehensive plans;
  582  responsible public entity rules, procedures, and standards for
  583  facilities; and any other conditions that the responsible public
  584  entity determine to be in the public’s best interest.
  585         (c) The responsible public entity may exercise any power
  586  possessed by it, including eminent domain, to facilitate the
  587  development and construction of projects pursuant to this
  588  section. The responsible public entity may provide services to
  589  the private entity. Agreements for maintenance and other
  590  services entered into pursuant to this section must provide for
  591  full reimbursement for services rendered for projects.
  592         (d) A private entity of a qualifying project may provide
  593  additional services for the qualifying project to public or
  594  private entities other than the responsible public entity if the
  595  provision of additional service does not impair the private
  596  entity’s ability to meet its commitments to the public entity
  597  pursuant to an interim or comprehensive agreement.
  599  expiration or termination of an interim or comprehensive
  600  agreement, the responsible public entity may use revenues to pay
  601  current operation and maintenance costs of the qualifying
  602  project, as well as compensation to the responsible public
  603  entity for its services in developing and operating the
  604  qualifying project. Except as provided otherwise in the interim
  605  or comprehensive agreement, the right to receive such payment,
  606  if any, is considered just compensation for the qualifying
  607  project in the event termination is due to the default of the
  608  private entity; however, this right does not affect the right of
  609  the responsible public entity to terminate, with cause, an
  610  interim or comprehensive agreement and to exercise any other
  611  rights and remedies that may be available to it at law or in
  612  equity. The full faith and credit of the responsible public
  613  entity may not be pledged to secure any financing of the private
  614  entity by the election to take over the qualifying project.
  615  Assumption of the development or operation of the qualifying
  616  project does not obligate the responsible public entity to pay
  617  any obligation of the private entity from sources other than
  618  revenues.
  619         (14) SOVEREIGN IMMUNITY.—This section does not waive the
  620  sovereign immunity of the state, any responsible public entity,
  621  any affected local jurisdiction, or any officer or employee
  622  thereof with respect to participation in, or approval of, all or
  623  any part of the qualifying project or its operation, including,
  624  but not limited to, interconnection of the qualifying project
  625  with any other infrastructure or project. Counties and
  626  municipalities in which a qualifying project is located possess
  627  sovereign immunity with respect to the project’s design,
  628  construction, and operation.
  629         (15) CONSTRUCTION.—This section shall be liberally
  630  construed to effectuate the purposes thereof.
  631         (a) This section does not affect the authority of the
  632  responsible public entity to take action that would impact the
  633  debt capacity of the state.
  634         (b) This section does not limit the state or its agencies
  635  in the acquisition, design, or construction of public projects
  636  pursuant to other statutory authority.
  637         (c) Except as otherwise provided in this section, this
  638  section does not amend existing laws by granting additional
  639  powers to, or further restricting, local governmental entities
  640  from regulating and entering into cooperative arrangements with
  641  the private sector for the planning, construction, and operation
  642  of facilities.
  643         Section 2. This act shall take effect July 1, 2012.