1 | A bill to be entitled |
2 | An act relating to public-private partnerships; |
3 | creating s. 287.05712, F.S.; establishing the Florida |
4 | Public-Private Partnership Act; providing definitions; |
5 | providing legislative findings and intent; providing |
6 | for private entities to develop and operate public- |
7 | purpose projects; requiring public entities to adopt |
8 | and make publicly available specified guidelines for |
9 | public-private agreements; providing requirements and |
10 | procedures for procurement, consideration, and |
11 | approval of projects; providing an exemption from the |
12 | Consultant's Competitive Negotiation Act and any |
13 | interpretations, regulations, or guidelines of the |
14 | Department of Management Services; providing |
15 | requirements and procedures for interim and |
16 | comprehensive agreements between private and public |
17 | entities; providing for affected local governments to |
18 | comment on proposed projects; providing powers and |
19 | duties for private entities; providing for material |
20 | default and remedies with respect to projects and |
21 | agreements; providing for federal, state, and local |
22 | financing; providing sovereign immunity for public |
23 | entities with respect to specified project activities; |
24 | providing for construction and effect of the act; |
25 | establishing the Public-Private Partnership Advisory |
26 | Commission; providing commission duties; providing for |
27 | appointment and reimbursement of commission members; |
28 | requiring the commission to submit annual reports to |
29 | the Governor and the Legislature; providing an |
30 | effective date. |
31 |
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32 | Be It Enacted by the Legislature of the State of Florida: |
33 |
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34 | Section 1. Section 287.05712, Florida Statutes, is created |
35 | to read: |
36 | 287.05712 Florida Public-Private Partnership Act.- |
37 | (1) DEFINITIONS.-As used in this section, the term: |
38 | (a) "Affected local jurisdiction" means any county, city, |
39 | or town in which all or a portion of a qualifying project is |
40 | located. |
41 | (b) "Appropriating body" means the body responsible for |
42 | appropriating or authorizing funding to pay for a qualifying |
43 | project. |
44 | (c) "Comprehensive agreement" means the comprehensive |
45 | agreement between the private entity and the responsible public |
46 | entity. |
47 | (d) "Develop" or "development" means to plan, design, |
48 | develop, finance, lease, acquire, install, construct, or expand. |
49 | (e) "Interim agreement" means an agreement between a |
50 | private entity and a responsible public entity that provides for |
51 | phasing of the development or operation of a qualifying project. |
52 | Such phases may include, but are not limited to, design, |
53 | planning, engineering, environmental analysis and mitigation, |
54 | financial and revenue analysis, or any other phase of the |
55 | project that constitutes activity on any part of the qualifying |
56 | project. |
57 | (f) "Lease payment" means any form of payment, including a |
58 | land lease, by a public entity to the private entity for the use |
59 | of a qualifying project. |
60 | (g) "Material default" means any default by the private |
61 | entity in the performance of its duties that jeopardizes |
62 | adequate service to the public from a qualifying project. |
63 | (h) "Operate" means to finance, maintain, improve, equip, |
64 | modify, repair, or operate. |
65 | (i) "Private entity" means any natural person, |
66 | corporation, general partnership, limited liability company, |
67 | limited partnership, joint venture, business trust, public |
68 | benefit corporation, nonprofit entity, or other private business |
69 | entity. |
70 | (j) "Proposal" means a detailed proposal accepted by a |
71 | responsible public entity beyond a conceptual level of review |
72 | and at which time issues such as fixing costs, payment |
73 | schedules, financing, deliverables, and project schedule are |
74 | defined. |
75 | (k) "Public entity" means the state and any agency or |
76 | authority thereof; any county, city, or town and any other |
77 | political subdivision of the state; any public body politic and |
78 | corporate; or any regional entity that serves a public purpose. |
79 | (l) "Qualifying project" means any: |
80 | 1. Public-purpose facility or project, including, but not |
81 | limited to, a public school building and any functionally |
82 | related and subordinate facility, including any stadium or other |
83 | facility primarily used for school events. |
84 | 2. Building or facility that meets a public purpose and is |
85 | developed or operated by or for any public entity. |
86 | 3. Improvements, including equipment, of buildings to be |
87 | principally used by a public entity. |
88 | 4. Water or wastewater management facility and other |
89 | related infrastructure. |
90 | (m) "Responsible public entity" means an agency or |
91 | institution of the state that has the authority to develop or |
92 | operate a qualifying project. |
93 | (n) "Revenues" means all revenues, income, earnings, user |
94 | fees, lease payments, or other service payments relating to the |
95 | development or operation of a qualifying project, including, but |
96 | not limited to, money received as grants or otherwise from the |
97 | Federal Government, from any public entity, or from any agency |
98 | or instrumentality of the foregoing in aid of a qualifying |
99 | project. |
100 | (o) "Service contract" means a contract entered into |
101 | between a public entity and the private entity. |
102 | (p) "Service payments" means payments to the private |
103 | entity of a qualifying project pursuant to a service contract. |
104 | (q) "User fees" means the rates, tolls, fees, or other |
105 | charges imposed by the private entity of a qualifying project |
106 | for use of all or a portion of such qualifying project pursuant |
107 | to a comprehensive agreement. |
108 | (r) "Water or wastewater management facility" means a |
109 | project for treatment, storage, disposal, or distribution of |
110 | water or wastewater. |
111 | (2) LEGISLATIVE FINDINGS AND INTENT.- |
112 | (a) The Legislature finds that: |
113 | 1. There is a public need for timely and cost-effective |
114 | acquisition, design, construction, improvement, renovation, |
115 | expansion, equipping, maintenance, operation, implementation, or |
116 | installation of public projects, including educational |
117 | facilities, water or wastewater management facilities and |
118 | infrastructure, technology infrastructure, and any other public |
119 | infrastructure and government facilities within the state that |
120 | serve a public need and purpose, and that such public need may |
121 | not be wholly satisfied by existing methods of procurement. |
122 | 2. There are inadequate resources to develop new |
123 | educational facilities, water or wastewater management |
124 | facilities and infrastructure, technology infrastructure and |
125 | other public infrastructure and government facilities for the |
126 | benefit of citizens of the state, and it has been demonstrated |
127 | that public-private partnerships can meet these needs by |
128 | improving the schedule for delivery, lowering the cost, and |
129 | providing other benefits to the public. |
130 | 3. There are state and federal tax incentives that promote |
131 | partnerships between public and private entities to operate and |
132 | develop qualifying projects. |
133 | 4. An action under subsection (4) serves the public |
134 | purpose of this section if such action facilitates the timely |
135 | development or operation of qualifying projects. |
136 | (b) The Legislature declares it is the intent of this |
137 | section to encourage investment in the state by private |
138 | entities, to facilitate various bond financing mechanisms, |
139 | private capital, and other funding sources for the development |
140 | and operation of qualifying projects, including expansion and |
141 | acceleration of such financing to meet the public need, and to |
142 | provide the greatest possible flexibility to public and private |
143 | entities to contract for the provision of public services. |
144 | (3) ADOPTION OF GUIDELINES BY RESPONSIBLE PUBLIC |
145 | ENTITIES.- |
146 | (a) A responsible public entity shall, before requesting |
147 | or considering a proposal for a qualifying project, adopt and |
148 | make publicly available guidelines that are sufficient to enable |
149 | the responsible public entity to comply with this section. Such |
150 | guidelines shall be reasonable, encourage competition, and guide |
151 | the selection of projects under the purview of the responsible |
152 | public entity. |
153 | (b) For a responsible public entity that is an agency or |
154 | institution of the state, the guidelines shall include, but are |
155 | not limited to: |
156 | 1. Opportunities for competition through public notice and |
157 | availability of representatives of the responsible public entity |
158 | to meet with private entities considering a proposal. |
159 | 2. Reasonable criteria for choosing among competing |
160 | proposals. |
161 | 3. Suggested timelines for selecting proposals and |
162 | negotiating an interim or comprehensive agreement. |
163 | 4. Authorization for accelerated selection and review and |
164 | documentation timelines for proposals involving a qualifying |
165 | project that the responsible public entity deems a priority. |
166 | 5. Financial review and analysis procedures that shall |
167 | include, at a minimum, a cost-benefit analysis, an assessment of |
168 | opportunity cost, and consideration of the results of all |
169 | studies and analyses related to the proposed qualifying project. |
170 | These procedures shall also include requirements for the |
171 | disclosure of such analysis to the appropriating body for review |
172 | prior to execution of an interim or comprehensive agreement. |
173 | 6. Consideration of the nonfinancial benefits of a |
174 | proposed qualifying project. |
175 | 7. A mechanism for the appropriating body to review a |
176 | proposed interim or comprehensive agreement prior to execution. |
177 | 8. Establishment of criteria for the creation of and the |
178 | responsibilities of a public-private partnership oversight |
179 | committee with members representing the responsible public |
180 | entity and the appropriating body. Such criteria shall include |
181 | the scope, costs, and duration of the qualifying project, as |
182 | well as whether the project involves or impacts multiple public |
183 | entities. The oversight committee, if formed, shall be an |
184 | advisory committee to review the terms of any proposed interim |
185 | or comprehensive agreement. |
186 | 9. Analysis of the adequacy of the information released |
187 | when seeking competing proposals and providing for the |
188 | enhancement of that information, if deemed necessary, to |
189 | encourage competition. |
190 | 10. Establishment of criteria, key decision points, and |
191 | approvals required to ensure that the responsible public entity |
192 | considers the extent of competition before selecting proposals |
193 | and negotiating an interim or comprehensive agreement. |
194 | 11. The posting and publishing of public notice of a |
195 | private entity's request for approval of a qualifying project, |
196 | including: |
197 | a. Specific information and documentation to be released |
198 | regarding the nature, timing, and scope of the qualifying |
199 | project. |
200 | b. A reasonable time period as determined by the |
201 | responsible public entity to encourage competition and public- |
202 | private partnerships in accordance with the goals of this |
203 | section, such reasonable period to be at least 45 days, during |
204 | which time the responsible public entity shall receive competing |
205 | proposals. |
206 | c. A requirement for advertising the public notice and |
207 | posting a notice on the Internet. |
208 | (c) For a responsible public entity that is not an agency |
209 | or institution of the state, the guidelines may include the |
210 | provisions set forth in this subsection at the discretion of the |
211 | public entity. However, the guidelines shall include: |
212 | 1. A requirement that the responsible public entity engage |
213 | the services of qualified professionals, which may include an |
214 | architect, professional engineer, or certified public |
215 | accountant, not otherwise employed by the responsible public |
216 | entity, to provide an independent analysis regarding the |
217 | specifics, advantages, disadvantages, and the long and short- |
218 | term costs of any request by a private entity for approval of a |
219 | qualifying project unless the governing body of the responsible |
220 | public entity determines that such analysis shall be performed |
221 | by employees of the responsible public entity. |
222 | 2. A mechanism for the appropriating body to review a |
223 | proposed interim or comprehensive agreement prior to execution. |
224 | (4) PROCUREMENT PROCEDURES FOR RESPONSIBLE PUBLIC |
225 | ENTITIES.-The Consultant's Competitive Negotiation Act under s. |
226 | 287.055 and any interpretations, regulations, or guidelines of |
227 | the Department of Management Services do not apply to this |
228 | section. However, a responsible public entity may enter into an |
229 | interim or comprehensive agreement as follows: |
230 | (a) A responsible public entity shall not be required to |
231 | select the proposal with the lowest bid offer, but may consider |
232 | price as one factor in evaluating the proposals received. Other |
233 | factors that may be considered include: |
234 | 1. The proposed costs of the qualifying facility. |
235 | 2. The general reputation, industry experience, and |
236 | financial capacity of the private entity. |
237 | 3. The proposed design of the qualifying project. |
238 | 4. The eligibility of the facility for accelerated |
239 | selection, review, and documentation timelines under the |
240 | responsible public entity's compliance with a minority business |
241 | enterprise participation plan or good faith effort to comply |
242 | with the goals of such plan. |
243 | 5. The private entity's plans to employ local contractors |
244 | and residents. |
245 | 6. Other criteria that the responsible public entity deems |
246 | appropriate. |
247 | (b) A responsible public entity shall proceed in |
248 | accordance with the guidelines adopted under subsection (3) |
249 | unless it determines that proceeding in accordance with the |
250 | guidelines is likely to be advantageous to the responsible |
251 | public entity and the public, based on: |
252 | 1. The probable scope, complexity, or priority of the |
253 | project. |
254 | 2. Risk sharing, including guaranteed cost or completion |
255 | guarantees, added value or debt, or equity investments proposed |
256 | by the private entity. |
257 | 3. An increase in funding, dedicated revenue source, or |
258 | other economic benefit that would not otherwise be available. |
259 |
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260 | When the responsible public entity determines to proceed |
261 | according to the guidelines adopted by it pursuant to subsection |
262 | (3), it shall state the reasons for its determination in |
263 | writing. |
264 | (c) A responsible public entity shall not proceed to |
265 | consider any request by a private entity for approval of a |
266 | qualifying project until the responsible public entity has |
267 | adopted and made publicly available guidelines that are |
268 | sufficient to enable the responsible public entity to comply |
269 | with this section. |
270 | (d) A responsible public entity that is a school board or |
271 | a county, city, or town may enter into an interim or |
272 | comprehensive agreement under this section only with the |
273 | approval of the local governing body. |
274 | (5) CONSIDERATION AND APPROVAL OF QUALIFYING PROJECTS.- |
275 | (a) A responsible public entity may request proposals or |
276 | invite bids from private entities for the development or |
277 | operation of qualifying projects pursuant to the public notice |
278 | and procurement provisions of this section. A private entity may |
279 | request the approval of the responsible public entity for a |
280 | qualifying project. |
281 | (b) A request by a private entity for approval of a |
282 | qualifying project shall be accompanied by the following |
283 | material and information unless waived by the responsible public |
284 | entity: |
285 | 1. A topographic map with a scale of 1:2,000 or other |
286 | appropriate scale indicating the location of the qualifying |
287 | project. |
288 | 2. A description of the qualifying project, including the |
289 | conceptual design of such facility or facilities or a conceptual |
290 | plan for the provision of services, and a schedule for the |
291 | initiation of and completion of the qualifying project to |
292 | include the proposed major responsibilities and timeline for |
293 | activities to be performed by both the public and private |
294 | entity. |
295 | 3. A statement setting forth the method by which the |
296 | private entity proposes to secure any necessary property |
297 | interests required for the qualifying project. |
298 | 4. Information relating to the current plans for |
299 | development of facilities or technology infrastructure to be |
300 | used by a public entity that is similar to the qualifying |
301 | project being proposed by the private entity, if any, of each |
302 | affected local jurisdiction. |
303 | 5. A list of all permits and approvals required for the |
304 | qualifying project from local, state, or federal agencies and a |
305 | projected schedule for obtaining such permits and approvals. |
306 | 6. A list of public water or wastewater management |
307 | facilities, if any, that will be crossed by the qualifying |
308 | project and a statement of the plans of the private entity to |
309 | accommodate such crossings. |
310 | 7. A statement setting forth the private entity's general |
311 | plans for financing the qualifying project, including the |
312 | sources of the private entity's funds and identification of any |
313 | dedicated revenue source or proposed debt or equity investment |
314 | on the behalf of the private entity. |
315 | 8. The names and addresses of the persons who may be |
316 | contacted for further information concerning the request. |
317 | 9. User fees, lease payments, and other service payment |
318 | over the term of an interim or comprehensive agreement and the |
319 | methodology and circumstances for changes to such user fees, |
320 | lease payments, and other service payments over time. |
321 | 10. Additional material and information as the responsible |
322 | public entity may reasonably request. |
323 | (c) Upon receipt of a proposal to develop or operate a |
324 | qualifying project, the responsible public entity shall |
325 | determine whether to accept the proposal for consideration. The |
326 | responsible public entity may reject any proposal initiated by a |
327 | private entity at any time. If the responsible public entity |
328 | determines not to accept the proposal for consideration, the |
329 | responsible public entity shall return the proposal to the |
330 | private entity, including all fees and accompanying |
331 | documentation. |
332 | (d) The responsible public entity may approve the |
333 | development or operation of an education facility, a water or |
334 | wastewater management facility and related infrastructure, |
335 | technology infrastructure or other public infrastructure, or a |
336 | government facility needed by a public entity as a qualifying |
337 | project, or the design or equipping of a qualifying project so |
338 | developed or operated, if: |
339 | 1. There is a public need for or benefit derived from a |
340 | project of the type the private entity proposes as a qualifying |
341 | project. |
342 | 2. The estimated cost of the qualifying project is |
343 | reasonable in relation to similar facilities. |
344 | 3. The private entity's plans will result in the timely |
345 | acquisition, design, construction, improvement, renovation, |
346 | expansion, equipping, maintenance, or operation of the |
347 | qualifying project. |
348 | (e) In evaluating any request, the responsible public |
349 | entity may rely upon internal staff reports prepared by |
350 | personnel familiar with the operation of similar facilities or |
351 | the advice of external advisors or consultants having relevant |
352 | experience. |
353 | (f) The responsible public entity may charge a reasonable |
354 | fee to cover the costs of processing, reviewing, and evaluating |
355 | the request, including, but not limited to, reasonable attorney |
356 | fees and fees for financial, technical, and other necessary |
357 | advisors or consultants. |
358 | (g) Upon approval of a qualifying project, the responsible |
359 | public entity shall establish a date for the commencement of |
360 | activities related to the qualifying project. The responsible |
361 | public entity may extend such date. |
362 | (h) Approval of a qualifying project by the responsible |
363 | public entity is subject to entering into a comprehensive |
364 | agreement with the private entity. |
365 | (6) INTERIM AGREEMENT.-Before or in connection with the |
366 | negotiation of a comprehensive agreement, the responsible public |
367 | entity may enter into an interim agreement with the private |
368 | entity proposing the development or operation of the qualifying |
369 | project. The interim agreement may: |
370 | (a) Permit the private entity to commence activities for |
371 | which it may be compensated related to the proposed qualifying |
372 | project, including, but not limited to, project planning and |
373 | development, design and engineering, environmental analysis and |
374 | mitigation, survey, and ascertaining the availability of |
375 | financing for the proposed facility or facilities. |
376 | (b) Establish the process and timing of the negotiation of |
377 | the comprehensive agreement. |
378 | (c) Contain any other provisions related to any aspect of |
379 | the development or operation of a qualifying project that the |
380 | responsible public entity and the private entity deem |
381 | appropriate. |
382 | (7) COMPREHENSIVE AGREEMENT.- |
383 | (a) Before developing or operating the qualifying project, |
384 | the private entity shall enter into a comprehensive agreement |
385 | with the responsible public entity. The comprehensive agreement |
386 | shall provide for: |
387 | 1. Delivery of maintenance, performance, and payment bonds |
388 | and letters of credit in connection with the development or |
389 | operation of the qualifying project, in the forms and amounts |
390 | satisfactory to the responsible public entity for those |
391 | components of the qualifying project that involve construction. |
392 | 2. Review of plans and specifications for the qualifying |
393 | project by the responsible public entity and approval by the |
394 | responsible public entity if the plans and specifications |
395 | conform to standards acceptable to the responsible public |
396 | entity. This subparagraph does not require the private entity to |
397 | complete the design of a qualifying project prior to the |
398 | execution of a comprehensive agreement. |
399 | 3. Inspection of the qualifying project by the responsible |
400 | public entity to ensure that the operator's activities are |
401 | acceptable to the responsible public entity in accordance with |
402 | the provisions of the comprehensive agreement. |
403 | 4. Maintenance of a policy or policies of public liability |
404 | insurance, copies of which shall be filed with the responsible |
405 | public entity accompanied by proofs of coverage, and self- |
406 | insurance, each in the form and amount satisfactory to the |
407 | responsible public entity and reasonably sufficient to insure |
408 | coverage of tort liability to the public and employees and to |
409 | enable the continued operation of the qualifying project. |
410 | 5. Monitoring the practices of the private entity by the |
411 | responsible public entity to ensure that the qualifying project |
412 | is properly maintained. |
413 | 6. Reimbursement to be paid to the responsible public |
414 | entity for services provided by the responsible public entity. |
415 | 7. Filing of appropriate financial statements on a |
416 | periodic basis. |
417 | 8. Policies and procedures governing the rights and |
418 | responsibilities of the responsible public entity and the |
419 | private entity in the event the comprehensive agreement is |
420 | terminated or there is a material default by the private entity. |
421 | Such policies and guidelines shall include conditions governing |
422 | assumption of the duties and responsibilities of the private |
423 | entity by the responsible public entity and the transfer or |
424 | purchase of property or other interests of the private entity by |
425 | the responsible public entity. |
426 | 9. User fees, lease payments, or service payments as may |
427 | be established by agreement of the parties. A copy of any |
428 | service contract shall be filed with the responsible public |
429 | entity. In negotiating user fees under this subsection, the |
430 | parties shall establish payments or fees that are the same for |
431 | persons using the facility under like conditions and that will |
432 | not materially discourage use of the qualifying project. The |
433 | execution of the comprehensive agreement or any amendment |
434 | thereto shall constitute conclusive evidence that the user fees, |
435 | lease payments, or service payments provided for comply with |
436 | this section. User fees or lease payments established in the |
437 | comprehensive agreement as a source of revenues may be in |
438 | addition to, or in lieu of, service payments. |
439 | 10. Duties of the private entity, including terms and |
440 | conditions that the responsible public entity determines serve |
441 | the public purpose of this section. |
442 | (b) The comprehensive agreement may include: |
443 | 1. An agreement by the responsible public entity to make |
444 | grants or loans to the private entity from amounts received from |
445 | the federal, state, or local government or any agency or |
446 | instrumentality thereof. |
447 | 2. Provisions under which the responsible public entity |
448 | agrees to provide notice of default and cure rights for the |
449 | benefit of the private entity and the persons specified therein |
450 | as providing financing for the qualifying project, including |
451 | terms and conditions to which the private entity and the |
452 | responsible public entity mutually agree, including but limited |
453 | to, provisions regarding unavoidable delays or a loan of public |
454 | funds to the private entity to develop or operate one or more |
455 | qualifying projects. |
456 | 3. Provisions where the authority and duties of the |
457 | private entity under this section shall cease, and the |
458 | qualifying project is dedicated to the responsible public entity |
459 | or, if the qualifying project was initially dedicated by an |
460 | affected local jurisdiction, to such affected local jurisdiction |
461 | for public use. |
462 | (c) Any changes in the terms of the comprehensive |
463 | agreement, as agreed upon by the responsible public entity and |
464 | the private entity, shall be added to the comprehensive |
465 | agreement by written amendment. |
466 | (d) The comprehensive agreement may provide for the |
467 | development or operation of phases or segments of the qualifying |
468 | project. |
469 | (8) AFFECTED LOCAL JURISDICTIONS.- |
470 | (a) Any private entity requesting approval from, or |
471 | submitting a proposal to, a responsible public entity shall |
472 | notify each affected local jurisdiction by furnishing a copy of |
473 | its request or proposal to each affected local jurisdiction. |
474 | (b) Each affected local jurisdiction that is not a |
475 | responsible public entity for the respective qualifying project |
476 | shall, within 60 days after receiving such notice, submit any |
477 | comments it may have in writing on the proposed qualifying |
478 | project to the responsible public entity and indicate whether |
479 | the facility is compatible with the local comprehensive plan, |
480 | local infrastructure development plans, the capital improvements |
481 | budget, or other government spending plan. Such comments shall |
482 | be given consideration by the responsible public entity before |
483 | entering a comprehensive agreement with a private entity. |
484 | (9) POWERS AND DUTIES OF THE PRIVATE ENTITY.- |
485 | (a) The private entity has all power allowed by law |
486 | generally to a private entity having the same form of |
487 | organization as the private entity and shall have the power to |
488 | develop or operate the qualifying project and collect lease |
489 | payments, impose user fees, or enter into service contracts in |
490 | connection with use thereof. |
491 | (b) The private entity may own, lease, or acquire any |
492 | other right to use or operate the qualifying project. |
493 | (c) Any financing of the qualifying project may be in such |
494 | amounts and upon such terms and conditions as may be determined |
495 | by the private entity. Without limiting the generality of the |
496 | foregoing, the private entity may issue debt, equity, or other |
497 | securities or obligations; enter into sale and leaseback |
498 | transactions; and secure any financing with a pledge of, |
499 | security interest in, or lien on any or all of its property, |
500 | including all of its property interests in the qualifying |
501 | project. |
502 | (d) In operating the qualifying project, the private |
503 | entity may make classifications according to reasonable |
504 | categories for assessment of user fees and, with the consent of |
505 | the responsible public entity, make and enforce reasonable rules |
506 | to the same extent that the responsible public entity may make |
507 | and enforce rules with respect to similar facilities. |
508 | (e) The private entity shall: |
509 | 1. Develop or operate the qualifying project in a manner |
510 | that is acceptable to the responsible public entity, all in |
511 | accordance with the provisions of an interim or comprehensive |
512 | agreement. |
513 | 2. Maintain, or provide by contract for the maintenance or |
514 | upgrade of the qualifying project, if required by an interim or |
515 | comprehensive agreement. |
516 | 3. Cooperate with the responsible public entity in making |
517 | best efforts to establish any interconnection with the |
518 | qualifying project requested by the responsible public entity. |
519 | 4. Comply with the provisions of an interim or |
520 | comprehensive agreement and any lease or service contract. |
521 | (f) A private entity of a qualifying project is not |
522 | prohibited from providing additional services for the qualifying |
523 | project to public or private entities other than the responsible |
524 | public entity so long as the provision of additional service |
525 | does not impair the private entity's ability to meet its |
526 | commitments to the responsible public entity pursuant to an |
527 | interim or comprehensive agreement. |
528 | (10) MATERIAL DEFAULT; REMEDIES.- |
529 | (a) In the event of a material default by the private |
530 | entity, the responsible public entity may elect to assume the |
531 | responsibilities and duties of the private entity of the |
532 | qualifying project, and in such case, it shall succeed to all of |
533 | the right, title, and interest in such qualifying project, |
534 | subject to any liens on revenues previously granted by the |
535 | private entity to any person providing financing thereof. |
536 | (b) Any responsible public entity having the power of |
537 | condemnation under state law may exercise such power of |
538 | condemnation to acquire the qualifying project in the event of a |
539 | material default by the private entity. Any person who has |
540 | provided financing for the qualifying project, and the private |
541 | entity, to the extent of its capital investment, may participate |
542 | in the condemnation proceedings with the standing of a property |
543 | owner. |
544 | (c) The responsible public entity may terminate, with |
545 | cause, an interim or comprehensive agreement and exercise any |
546 | other rights and remedies that may be available to it at law or |
547 | in equity. |
548 | (d) The responsible public entity may make or cause to be |
549 | made any appropriate claims under the maintenance, performance, |
550 | or payment bonds, or lines of credit. |
551 | (e) In the event the responsible public entity elects to |
552 | take over a qualifying project, the responsible public entity |
553 | may develop or operate the qualifying project, impose user fees, |
554 | impose and collect lease payments for the use thereof and comply |
555 | with any service contracts as if it were the private entity. Any |
556 | revenues that are subject to a lien shall be collected for the |
557 | benefit of and paid to secured parties, as their interests may |
558 | appear, to the extent necessary to satisfy the private entity's |
559 | obligations to secured parties, including the maintenance of |
560 | reserves. Such liens shall be correspondingly reduced and, when |
561 | paid off, released. Before any payments to, or for the benefit |
562 | of, secured parties, the responsible public entity may use |
563 | revenues to pay current operation and maintenance costs of the |
564 | qualifying project, including compensation to the responsible |
565 | public entity for its services in developing and operating the |
566 | qualifying project. The right to receive such payment, if any, |
567 | shall be considered just compensation for the qualifying |
568 | project. The full faith and credit of the responsible public |
569 | entity shall not be pledged to secure any financing of the |
570 | private entity by the election to take over the qualifying |
571 | project. Assumption of the development or operation of the |
572 | qualifying project shall not obligate the responsible public |
573 | entity to pay any obligation of the private entity from sources |
574 | other than revenues. |
575 | (11) FEDERAL, STATE, AND LOCAL FINANCING.- |
576 | (a) Any financing of a qualifying project may be in such |
577 | amounts and upon such terms and conditions as determined by an |
578 | interim or comprehensive agreement between the responsible |
579 | public entity and the private entity. Without limiting the |
580 | generality of the terms and conditions of the financing, the |
581 | private entity and the responsible public entity may propose to |
582 | use any and all funding resources that may be available and may, |
583 | to the fullest extent permitted by applicable law, issue debt, |
584 | equity, or other securities or obligations; enter into leases; |
585 | access any designed trust funds; borrow or accept grants from |
586 | any state infrastructure bank; and secure any financing with a |
587 | pledge of, security interest in, or lien on, any or all of its |
588 | property, including all of its property interests in the |
589 | qualifying facility. |
590 | (b) The responsible public entity may take any action to |
591 | obtain federal, state, or local assistance for a qualifying |
592 | project that serves the public purpose of this section and may |
593 | enter into any contracts required to receive such assistance. If |
594 | the responsible public entity is a state agency, any funds |
595 | received from the state or federal government or any agency or |
596 | instrumentality thereof shall be subject to appropriation by the |
597 | Legislature. The responsible public entity may determine that it |
598 | serves the public purpose of this section for all or any portion |
599 | of the costs of a qualifying project to be paid, directly or |
600 | indirectly, from the proceeds of a grant or loan made by the |
601 | local, state, or federal government or any agency or |
602 | instrumentality thereof. |
603 | (12) SOVEREIGN IMMUNITY.-This section does not waive the |
604 | sovereign immunity of the state, any responsible public entity, |
605 | any affected local jurisdiction, or any officer or employee |
606 | thereof with respect to the participation in, or approval of all |
607 | or any part of the qualifying project or its operation, |
608 | including, but not limited to, interconnection of the qualifying |
609 | project with any other infrastructure or project. Counties, |
610 | cities, and towns in which a qualifying project is located |
611 | possess sovereign immunity with respect to the project's design, |
612 | construction, and operation. |
613 | (13) CONSTRUCTION AND EFFECT.-This section shall be |
614 | liberally construed to effectuate the purposes thereof. This |
615 | section does not affect the authority of the responsible public |
616 | entity to take action that would impact the debt capacity of the |
617 | state. |
618 | (14) PUBLIC-PRIVATE PARTNERSHIP ADVISORY COMMISSION.- |
619 | (a) The Public-Private Partnership Advisory Commission is |
620 | established to review the implementation of this section and to |
621 | provide recommendations for any revisions necessary to further |
622 | support public-private partnership opportunities in the state. |
623 | (b) The commission shall consist of 12 members, as |
624 | follows: |
625 | 1. Two members of the House of Representatives, appointed |
626 | by the Speaker of the House of Representatives. |
627 | 2. Two members of the Senate, appointed by the President |
628 | of the Senate. |
629 | 3. Eight members appointed by the Governor, as follows: |
630 | a. Four local government officials. |
631 | b. Two state agency representatives. |
632 | c. Two representatives of the private sector. |
633 |
|
634 | All terms are for 4 years, except those members of the House of |
635 | Representatives and Senate, who shall serve on the commission |
636 | until the expiration of their terms of office or until their |
637 | successors qualify. |
638 | (c) The members of the commission shall elect a |
639 | chairperson and a vice-chairperson. The commission shall hold |
640 | public meetings at least quarterly or upon the call of the |
641 | chairperson. A majority of the commission constitutes a quorum. |
642 | (d) Members of the commission are entitled to receive per |
643 | diem and travel expenses as provided in s. 112.061. |
644 | (e) Administrative staff support shall be provided by the |
645 | Executive Office of the Governor, as appropriate. |
646 | (f) A copy of the minutes from each commission meeting |
647 | shall be provided to and maintained by the Governor, the |
648 | President of Senate, and the Speaker of the House of |
649 | Representatives. |
650 | (g) Beginning on December 13, 2013, and each year |
651 | thereafter, the commission shall submit a report providing |
652 | comments on the implementation of this section and |
653 | recommendations for future revisions to the Governor, the |
654 | President of the Senate, and the Speaker of the House of |
655 | Representatives. |
656 | Section 2. This act shall take effect July 1, 2012. |