Florida Senate - 2013                                     SB 238
       By Senator Flores
       37-00258-13                                            2013238__
    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 requirements for project approval; 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 user fees;
   16         providing for financing from private sources and
   17         public entities; providing powers and duties for
   18         private entities; providing for expiration or
   19         termination of agreements; providing for the
   20         applicability of sovereign immunity for public
   21         entities with respect to qualified projects; providing
   22         for construction of the act; providing an effective
   23         date.
   25  Be It Enacted by the Legislature of the State of Florida:
   27         Section 1. Section 287.05712, Florida Statutes, is created
   28  to read:
   29         287.05712 Public-private partnerships.—
   30         (1) DEFINITIONS.—As used in this section, the term:
   31         (a) “Affected local jurisdiction” means any county or
   32  municipality in which all or a portion of a qualifying project
   33  is located.
   34         (b) “Appropriating body” means the body responsible for
   35  appropriating or authorizing funding to pay for a qualifying
   36  project.
   37         (c) “Develop” or “development” means to plan, design,
   38  develop, finance, lease, acquire, install, construct, or expand.
   39         (d) “Lease payment” means any form of payment, including a
   40  land lease, by a public entity to the private entity for the use
   41  of a qualifying project.
   42         (e) “Material default” means any default by the private
   43  entity in the performance of its duties which jeopardizes
   44  adequate service to the public from a qualifying project.
   45         (f) “Operate” means to finance, maintain, improve, equip,
   46  modify, repair, or operate.
   47         (g) “Private entity” means any natural person, corporation,
   48  general partnership, limited liability company, limited
   49  partnership, joint venture, business trust, public benefit
   50  corporation, nonprofit entity, or other private business entity.
   51         (h) “Proposal” means a detailed proposal accepted by a
   52  responsible public entity beyond a conceptual level of review at
   53  which issues such as fixing costs, payment schedules, financing,
   54  deliverables, and project schedule are defined.
   55         (i) “Qualifying project” means any:
   56         1. Facility or project that meets a public purpose,
   57  including, but not limited to, any ferry, mass transit facility,
   58  vehicle parking facility, port facility, power generating
   59  facility, fuel supply facility, oil or gas pipeline, medical or
   60  nursing care facility, or recreational facility used primarily
   61  for events.
   62         2. Improvements, including equipment, of a facility to be
   63  principally used by a public entity.
   64         3. Water, wastewater, or surface water management facility
   65  and other related infrastructure.
   66         (j) “Responsible public entity” means any county,
   67  municipality, or other political subdivision of the state; any
   68  public body politic and corporate; or any regional entity that
   69  serves a public purpose and has authority to develop or operate
   70  a qualifying project.
   71         (k) “Revenues” means all revenues, income, earnings, user
   72  fees, lease payments, or other service payments relating to the
   73  development or operation of a qualifying project, including, but
   74  not limited to, money received as grants or otherwise from the
   75  Federal Government, from any public entity, or from any agency
   76  or instrumentality of the foregoing in aid of a qualifying
   77  project.
   78         (l) “Service contract” means a contract entered into
   79  between a public entity and a private entity of a qualifying
   80  project.
   81         (m) “Service payment” means a payment to the private entity
   82  of a qualifying project pursuant to a service contract.
   83         (n) “User fee” means any fee or charge imposed by the
   84  private entity of a qualifying project for use of all or a
   85  portion of such qualifying project pursuant to a comprehensive
   86  agreement.
   87         (o) “Water or wastewater management facility” means a
   88  project for the treatment, storage, disposal, or distribution of
   89  water or wastewater.
   90         (2) LEGISLATIVE FINDINGS AND INTENT.—The Legislature finds
   91  that there is a public need for the construction or upgrade of
   92  facilities that are used predominantly for public purposes and
   93  that it is in the public’s interest to provide for the
   94  construction or upgrade of such facilities.
   95         (a) The Legislature also finds that:
   96         1. There is a public need for timely and cost-effective
   97  acquisition, design, construction, improvement, renovation,
   98  expansion, equipping, maintenance, operation, implementation, or
   99  installation of public projects, including educational
  100  facilities, water or wastewater management facilities and
  101  infrastructure, technology infrastructure, and any other public
  102  infrastructure and government facilities within the state which
  103  serve a public need and purpose, and that such public need may
  104  not be wholly satisfied by existing procurement methods.
  105         2. There are inadequate resources to develop new
  106  educational facilities, water or wastewater management
  107  facilities and infrastructure, technology infrastructure, and
  108  other public infrastructure and government facilities for the
  109  benefit of residents of this state, and that it has been
  110  demonstrated that public-private partnerships can meet these
  111  needs by improving the schedule for delivery, lowering the cost,
  112  and providing other benefits to the public.
  113         3. There are state and federal tax incentives that promote
  114  public-private partnerships to develop and operate qualifying
  115  projects.
  116         4. A procurement under this section serves the public
  117  purpose of this section if such action facilitates the timely
  118  development or operation of qualifying projects.
  119         (b) The Legislature declares that it is the intent of this
  120  section to encourage investment in the state by private
  121  entities; to facilitate various bond financing mechanisms,
  122  private capital, and other funding sources for the development
  123  and operation of qualifying projects, including expansion and
  124  acceleration of such financing to meet the public need; and to
  125  provide the greatest possible flexibility to public and private
  126  entities contracting for the provision of public services.
  127         (3) ADOPTION OF GUIDELINES.—
  128         (a) Before requesting or considering a proposal for a
  129  qualifying project, a responsible public entity shall adopt and
  130  make publicly available guidelines that enable the public entity
  131  to comply with this section. Such guidelines must be reasonable,
  132  encourage competition, and guide the selection of projects under
  133  the purview of the public entity.
  134         (b) The guidelines must include:
  135         1. Opportunities for competition through public notice and
  136  the availability of representatives of the responsible public
  137  entity to meet with private entities considering a proposal.
  138         2. Reasonable criteria for choosing among competing
  139  proposals.
  140         3. Suggested timelines for selecting proposals and
  141  negotiating an interim or comprehensive agreement.
  142         4. Authorization for accelerated selection and review and
  143  documentation timelines for proposals involving a qualifying
  144  project that the responsible public entity deems a priority.
  145         5. Procedures for financial review and analysis which, at a
  146  minimum, include a cost-benefit analysis, an assessment of
  147  opportunity cost, and consideration of the results of all
  148  studies and analyses related to the proposed qualifying project.
  149  The procedures must also include requirements for disclosing
  150  such analysis to the appropriating body for review before the
  151  execution of an interim or comprehensive agreement.
  152         6. Consideration of the nonfinancial benefits of a proposed
  153  qualifying project.
  154         7. A mechanism for the appropriating body to review a
  155  proposed interim or comprehensive agreement before execution.
  156         8. Criteria for the creation and responsibilities of a
  157  public-private partnership oversight committee that includes
  158  members representing the responsible public entity and the
  159  appropriating body. The criteria must include the scope, costs,
  160  and duration of the qualifying project, as well as whether the
  161  project involves or affects multiple public entities. If formed,
  162  the oversight committee shall be an advisory committee that
  163  reviews the terms of a proposed interim or comprehensive
  164  agreement.
  165         9. Analysis of the adequacy of the information released
  166  when seeking competing proposals and providing for the
  167  enhancement of that information, if deemed necessary, to
  168  encourage competition.
  169         10. Criteria, key decision points, and approvals required
  170  to ensure that the responsible public entity considers the
  171  extent of competition before selecting proposals and negotiating
  172  an interim or comprehensive agreement.
  173         11. A requirement that public notice be published and
  174  posted of a private entity’s request for approval of a
  175  qualifying project, including:
  176         a. Specific information and documentation to be released
  177  regarding the nature, timing, and scope of the project.
  178         b. A reasonable time period, as determined by the
  179  responsible public entity, of at least 60 days, which encourages
  180  competition and public-private partnerships in accordance with
  181  the goals of this section, during which time the responsible
  182  public entity is to receive competing proposals.
  183         c. A requirement for advertising the public notice and
  184  posting the notice on the Internet.
  185         12. A requirement that the responsible public entity engage
  186  the services of qualified professionals, which may include a
  187  Florida-registered professional or a certified public
  188  accountant, not otherwise employed by the responsible public
  189  entity, to provide an independent analysis regarding the
  190  specifics, advantages, disadvantages, and long-term and short
  191  term costs of a request by a private entity for approval of a
  192  qualifying project, unless the governing body of the public
  193  entity determines that such analysis should be performed by
  194  employees of the public entity. Professional services as defined
  195  in s. 287.055 must be engaged pursuant to s. 287.055.
  196         (4) PROCUREMENT PROCEDURES.—The responsible public entity
  197  may receive or solicit proposals with the approval of the
  198  appropriating body as shown by the approval of the project in
  199  the public entity’s work program, and enter into an agreement
  200  with a private entity or a consortium thereof, for the building,
  201  upgrade, operation, ownership, or financing of a facility.
  202         (a) The responsible public entity may not consider any
  203  request by a private entity for approval of a qualifying project
  204  until the responsible public entity has adopted, or incorporated
  205  and made publicly available, in accordance with subsection (3),
  206  guidelines that enable the responsible public entity to comply
  207  with this section.
  208         (b) By rule, ordinance, or guideline, as applicable, the
  209  responsible public entity shall establish an application fee for
  210  the submission of an unsolicited proposal under this section.
  211  The fee must be sufficient to pay the costs of evaluating the
  212  proposal. The responsible public entity may engage the services
  213  of private consultants to assist in the evaluation.
  214         (c) The responsible public entity may request proposals
  215  from private entities for a public-private project or, if the
  216  public entity receives an unsolicited proposal, the public
  217  entity shall publish a notice in the Florida Administrative
  218  Weekly or a newspaper of general circulation at least once a
  219  week for 2 weeks stating that the public entity has received a
  220  proposal and will accept other proposals for the same project
  221  for 60 days after the initial date of publication. A copy of the
  222  notice must be mailed to each affected local jurisdiction.
  223         (d) A responsible public entity that is a school board or a
  224  county or municipality may enter into an interim or
  225  comprehensive agreement only with the approval of the local
  226  governing body.
  227         (e) Before approval, the responsible public entity must
  228  determine that the proposed project:
  229         1. Is in the public’s best interest;
  230         2. 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. Any interim or comprehensive agreement must include a
  247  reasonable finance plan, consistent with subsection (11), which
  248  identifies the project cost, revenues by source, financing,
  249  major assumptions, internal rate of return on private
  250  investments, and whether any government funds are assumed to
  251  deliver a cost-feasible project, and a total cash-flow analysis
  252  beginning with the implementation of the project and extending
  253  for the term of the agreement.
  254         2. Any comprehensive agreement must be consistent with an
  255  investment-grade technical study prepared by a nationally
  256  recognized expert who is accepted by the national bond rating
  257  agencies. In evaluating the technical study, the responsible
  258  public 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         (5) REQUIREMENTS FOR PROJECT APPROVAL.—A request by a
  263  private entity for approval of a qualifying project must be
  264  accompanied by the following material and information, unless
  265  waived by the responsible public entity:
  266         (a) A topographic map with a scale of 1:2,000 or other
  267  appropriate scale indicating the location of the qualifying
  268  project.
  269         (b) A description of the qualifying project, including a
  270  conceptual design of the facility or a conceptual plan for the
  271  provision of services, and a schedule for the initiation of and
  272  completion of the qualifying project which includes the proposed
  273  major responsibilities and a timeline for activities to be
  274  performed by both the public and private entity.
  275         (c) A statement specifying the method by which the private
  276  entity proposes to secure any necessary property interest
  277  required for the qualifying project.
  278         (d) Information relating to current plans for the
  279  development of facilities or technology infrastructure to be
  280  used by a public entity which is similar to the qualifying
  281  project being proposed by the private entity, if any, of each
  282  affected local jurisdiction.
  283         (e) A list of all permits and approvals required for the
  284  qualifying project from local, state, or federal agencies and a
  285  projected schedule for obtaining such permits and approvals.
  286         (f) A list of public water or wastewater management
  287  facilities, if any, which will be crossed by the qualifying
  288  project and a statement of the plans of the private entity to
  289  accommodate such crossings.
  290         (g) A statement specifying the private entity’s general
  291  plans for financing the qualifying project, including the
  292  sources of the private entity’s funds and identification of any
  293  dedicated revenue source or proposed debt or equity investment
  294  on the behalf of the private entity.
  295         (h) The names and addresses of persons who may be contacted
  296  for further information concerning the request.
  297         (i) User fees, lease payments, and other service payments
  298  over the term of an interim or comprehensive agreement, and the
  299  methodology and circumstances for changes to such user fees,
  300  lease payments, and other service payments over time.
  301         (j) Any additional material and information that the
  302  responsible public entity may reasonably request.
  304         (a) The responsible public entity shall qualify the public
  305  private partnerships as part of the procurement process outlined
  306  in the procurement documents if such process ensures that the
  307  private entity meets at least the minimum standards contained in
  308  the responsible public entity’s guidelines for qualifying
  309  professional architectural, engineering, and contracting
  310  services before submitting a proposal under the procurement.
  311         (b) The responsible public entity shall ensure that
  312  procurement documents include provisions for the private
  313  entity’s performance and payment of subcontractors, including,
  314  but not limited to, surety bonds, letters of credit, parent
  315  company guarantees, and lender and equity partner guarantees.
  316  For those components of the qualifying project which involve
  317  construction, performance and payment bonds are required and are
  318  subject to the recordation, notice, suit limitation, and other
  319  requirements of s. 255.05. The responsible public entity shall
  320  balance the structure of the security package for the public
  321  private partnership which ensures performance and payment of
  322  subcontractors with the cost of the security to ensure the most
  323  efficient pricing. The procurement documents must contain
  324  contract provisions addressing termination, default, and exit
  325  transition obligations of the private entity.
  326         (c) After the public notification period has expired, the
  327  responsible public entity shall rank the proposals in order of
  328  preference. In ranking the proposals, the responsible public
  329  entity may consider factors that include, but need not be
  330  limited to, professional qualifications, general business terms,
  331  innovative engineering or cost-reduction terms, and finance
  332  plans. If the public entity is not satisfied with the results of
  333  the negotiations with the first-ranked private entity, the
  334  public entity may terminate negotiations and go to the second
  335  ranked, then lower-ranked private entities, in order, using this
  336  same procedure. If only one proposal is received, the
  337  responsible public entity may negotiate in good faith and, if
  338  the public entity is not satisfied with the results of the
  339  negotiations, the public entity may terminate negotiations with
  340  the proposer. Notwithstanding this subsection, the responsible
  341  public entity may reject all proposals at any point in the
  342  process up to execution of a contract with the proposer.
  343         (d) The responsible public entity shall perform an
  344  independent analysis, or other analysis in accordance with
  345  paragraph (4)(f), of the proposed public-private partnership
  346  which demonstrates the cost-effectiveness and overall public
  347  benefit at the following times:
  348         1. Before the procurement process; and
  349         2. Before awarding the contract.
  350         (e) The responsible public entity may approve the
  351  development or operation of an educational facility, a water or
  352  wastewater management facility and related infrastructure, a
  353  technology infrastructure or other public infrastructure, or a
  354  government facility needed by the public entity as a qualifying
  355  project, or the design or equipping of a qualifying project so
  356  developed or operated, if:
  357         1. There is a public need for or benefit derived from a
  358  project of the type that the private entity proposes as a
  359  qualifying project;
  360         2. The estimated cost of the qualifying project is
  361  reasonable in relation to similar facilities; and
  362         3. The private entity’s plans will result in the timely
  363  acquisition, design, construction, improvement, renovation,
  364  expansion, equipping, maintenance, or operation of the
  365  qualifying project.
  366         (f) The responsible public entity may charge a reasonable
  367  application fee to cover the costs of processing, reviewing, and
  368  evaluating the request, including, but not limited to,
  369  reasonable attorney fees and fees for financial, technical, and
  370  other necessary advisors or consultants.
  371         (g) Upon approval of a qualifying project, the responsible
  372  public entity must establish a date for the commencement of
  373  activities related to the qualifying project. The responsible
  374  public entity may extend such date.
  375         (h) Approval of a qualifying project by the responsible
  376  public entity is subject to entering into a comprehensive
  377  agreement with the private entity.
  379         (a) Any private entity requesting approval from, or
  380  submitting a proposal to, a responsible public entity must
  381  notify each affected local jurisdiction by furnishing a copy of
  382  its request or proposal to each affected local jurisdiction.
  383         (b) Each affected local jurisdiction that is not a
  384  responsible public entity for the respective qualifying project
  385  shall, within 60 days after receiving such notice, submit any
  386  comment it may have in writing to the responsible public entity
  387  and indicate whether the facility is compatible with the local
  388  comprehensive plan, the local infrastructure development plan,
  389  the capital improvements budget, or other governmental spending
  390  plan. Before entering a comprehensive agreement with a private
  391  entity, the responsible public entry must consider the affected
  392  local jurisdictions’ comments.
  393         (8) INTERIM AGREEMENT.—Before, or in connection with, the
  394  negotiation of a comprehensive agreement, the responsible public
  395  entity may enter into an interim agreement with the private
  396  entity proposing the development or operation of the qualifying
  397  project. An interim agreement does not obligate the responsible
  398  public entity to enter into a comprehensive agreement. An
  399  interim agreement must be limited to provisions that:
  400         (a) Authorize the private entity to commence activities for
  401  which it may be compensated related to the proposed qualifying
  402  project, including, but not limited to, project planning and
  403  development, design and engineering, environmental analysis and
  404  mitigation, surveys, or other activities concerning any part of
  405  the proposed qualifying project, and ascertaining the
  406  availability of financing for the proposed facility or
  407  facilities.
  408         (b) Establish the process and timing of the negotiation of
  409  the comprehensive agreement.
  410         (c) Contain any other provisions related to any aspect of
  411  the development or operation of a qualifying project which the
  412  responsible public entity and the private entity deem
  413  appropriate.
  415         (a) Before developing or operating the qualifying project,
  416  the private entity shall enter into a comprehensive agreement
  417  with the responsible public entity. The comprehensive agreement
  418  must provide for:
  419         1. Delivery of maintenance, performance, and payment bonds
  420  and letters of credit in connection with the development or
  421  operation of the qualifying project in the forms and amounts
  422  satisfactory to the responsible public entity. For those
  423  components of the qualifying project which involve construction,
  424  the form and amount of the bonds must comply with s. 255.05.
  425         2. Review of plans and specifications for the qualifying
  426  project by the responsible public entity and approval by the
  427  responsible public entity if the plans and specifications
  428  conform to standards acceptable to the responsible public
  429  entity. This subparagraph does not require the private entity to
  430  complete the design of the qualifying project before the
  431  execution of the comprehensive agreement.
  432         3. Inspection of the qualifying project by the responsible
  433  public entity to ensure that the operator’s activities are
  434  acceptable to the public entity in accordance with the
  435  comprehensive agreement.
  436         4. Maintenance of a policy or policies of public liability
  437  insurance, copies of which shall be filed with the responsible
  438  public entity accompanied by proofs of coverage or self
  439  insurance, each in the form and amount satisfactory to the
  440  responsible public entity and reasonably sufficient to ensure
  441  coverage of tort liability to the public and employees and to
  442  enable the continued operation of the qualifying project.
  443         5. Monitoring of the practices of the private entity by the
  444  responsible public entity to ensure that the qualifying project
  445  is properly maintained.
  446         6. Reimbursement to be paid to the responsible public
  447  entity for services provided by the responsible public entity.
  448         7. Filing of appropriate financial statements on a periodic
  449  basis.
  450         8. Procedures governing the rights and responsibilities of
  451  the responsible public entity and the private entity in the
  452  event the comprehensive agreement is terminated or there is a
  453  material default by the private entity. Such procedures must
  454  include conditions governing assumption of the duties and
  455  responsibilities of the private entity by the responsible public
  456  entity and the transfer or purchase of property or other
  457  interests of the private entity by the responsible public
  458  entity.
  459         9. User fees, lease payments, or service payments as may be
  460  established by agreement of the parties. A copy of any service
  461  contract shall be filed with the responsible public entity. In
  462  negotiating user fees, the parties shall establish user fees
  463  that are the same for persons using the facility under like
  464  conditions and that will not materially discourage use of the
  465  qualifying project. The execution of the comprehensive agreement
  466  or any amendment thereto constitutes conclusive evidence that
  467  the user fees, lease payments, or service payments provided for
  468  comply with this section. User fees or lease payments
  469  established in the comprehensive agreement as a source of
  470  revenues may be in addition to, or in lieu of, service payments.
  471         10. Duties of the private entity, including terms and
  472  conditions that the responsible public entity determine serve
  473  the public purpose of this section.
  474         (b) The comprehensive agreement may include:
  475         1. An agreement by the responsible public entity to make
  476  grants or loans to the private entity from amounts received from
  477  the federal, state, or local government or any agency or
  478  instrumentality thereof.
  479         2. Provisions under which each entity agrees to provide
  480  notice of default and cure rights for the benefit of the other
  481  entity, including, but not limited to, provisions regarding
  482  unavoidable delays.
  483         3. Provisions whereby the authority and duties of the
  484  private entity under this section will cease and the qualifying
  485  project will be dedicated to the responsible public entity or,
  486  if the qualifying project was initially dedicated to an affected
  487  local jurisdiction, to such affected local jurisdiction for
  488  public use.
  489         (10) USER FEES.—
  490         (a) An agreement that is entered into pursuant to this
  491  section may authorize the private entity to impose user fees for
  492  the use of the facility. The following provisions apply to such
  493  agreement:
  494         1. The responsible public entity shall ensure that the
  495  facility is properly operated, maintained, and renewed in
  496  accordance with the responsible public entity’s standards.
  497         2. The responsible public entity may develop a new facility
  498  or increase the capacity of the existing facility through a
  499  public-private partnership.
  500         3. The responsible public entity may lease the existing
  501  fee-for-use facility through a public-private partnership.
  502         4. The responsible public entity shall regulate any
  503  revenues pursuant to guidelines or rules established in
  504  subsection (3).
  505         5. The regulations governing the future increase of user
  506  fees must be included in the public-private partnership
  507  agreement.
  508         (b) The responsible public entity shall include provisions
  509  in the public-private partnership agreement which ensure that a
  510  negotiated portion of revenues from user-fee-generating projects
  511  are returned to the public entity over the life of the
  512  agreement. In the case of a lease of an existing facility, the
  513  responsible public entity shall receive a portion of funds upon
  514  closing on the agreements and also a portion of excess revenues
  515  over the life of the public-private partnership.
  516         (11) FINANCING.—
  517         (a) A private entity may enter into a financing agreement
  518  with private financing sources. All financing agreements and all
  519  liens on the property or facility must be paid in full at the
  520  applicable closing that transfers the ownership of the facility
  521  to the responsible public entity.
  522         (b) The responsible public entity may lend funds from its
  523  trust fund to a private entity that constructs a project
  524  containing a facility which is approved under this section. To
  525  be eligible, the private entity must comply with s. 215.97 and
  526  must provide an indication from a nationally recognized rating
  527  agency that the senior bonds for the project will be investment
  528  grade, or must provide credit support, such as a letter of
  529  credit or other means acceptable to the responsible public
  530  entity, to ensure that the loans will be fully repaid.
  531         (c) The responsible public entity may use innovative
  532  finance techniques associated with a public-private partnership
  533  under this section, including, but not limited to, federal loans
  534  as provided in 23 and 49 C.F.R., commercial bank loans, and
  535  hedges against inflation from commercial banks or other private
  536  sources. The responsible public entity may use the model
  537  financing agreement as provided in s. 489.145(6) for its
  538  financing of a facility owned by the responsible public entity.
  539  A financing agreement may not require the responsible public
  540  entity to indemnify the financing source, subject the
  541  responsible public entity’s facility to liens in violation of s.
  542  11.066(5), or secure financing by the responsible public entity
  543  with a pledge of security interest, and any such provisions are
  544  void.
  546         (a) The private entity shall:
  547         1. Develop or operate the qualifying project in a manner
  548  that is acceptable to the responsible public entity in
  549  accordance with the provisions of the interim or comprehensive
  550  agreement.
  551         2. Maintain, or provide by contract for the maintenance or
  552  upgrade of, the qualifying project if required by the interim or
  553  comprehensive agreement.
  554         3. Cooperate with the responsible public entity in making
  555  the best efforts to establish any interconnection with the
  556  qualifying project requested by the responsible public entity.
  557         4. Comply with the interim or comprehensive agreement and
  558  any lease or service contract.
  559         (b) Each private facility constructed pursuant to this
  560  section must comply with all requirements of federal, state, and
  561  local laws; state, regional, and local comprehensive plans;
  562  responsible public entity rules, procedures, and standards for
  563  facilities; and any other conditions that the responsible public
  564  entity determines to be in the public’s best interest.
  565         (c) The responsible public entity may provide services to
  566  the private entity. Agreements for maintenance and other
  567  services entered into pursuant to this section must provide for
  568  full reimbursement for services rendered for the project.
  569         (d) The private entity of the qualifying project may
  570  provide additional services for the qualifying project to a
  571  public or private entity other than the responsible public
  572  entity if the provision of additional service does not impair
  573  the private entity’s ability to meet its commitments to the
  574  public entity pursuant to the interim or comprehensive
  575  agreement.
  577  expiration or termination of the interim or comprehensive
  578  agreement, the responsible public entity may use revenues to pay
  579  current operation and maintenance costs of the qualifying
  580  project, as well as compensation to the responsible public
  581  entity for its services in developing and operating the
  582  qualifying project. Except as provided otherwise in the interim
  583  or comprehensive agreement, the right to receive such payment,
  584  if any, is considered just compensation for the qualifying
  585  project in the event termination is due to the default of the
  586  private entity; however, this right does not affect the right of
  587  the responsible public entity to terminate, with cause, the
  588  interim or comprehensive agreement and to exercise any other
  589  rights and remedies that may be available to it at law or in
  590  equity. The full faith and credit of the responsible public
  591  entity may not be pledged to secure any financing of the private
  592  entity by the election to take over the qualifying project.
  593  Assumption of the development or operation of the qualifying
  594  project does not obligate the responsible public entity to pay
  595  any obligation of the private entity from sources other than
  596  revenues.
  597         (14) SOVEREIGN IMMUNITY.—This section does not waive the
  598  sovereign immunity of the state, any responsible public entity,
  599  any affected local jurisdiction, or any officer or employee
  600  thereof with respect to participation in, or approval of, all or
  601  any part of the qualifying project or its operation, including,
  602  but not limited to, interconnection of the qualifying project
  603  with any other infrastructure or project. A county and
  604  municipality in which a qualifying project is located possess
  605  sovereign immunity with respect to the project, including, but
  606  not limited to, its design, construction, and operation.
  607         (15) CONSTRUCTION.—This section shall be liberally
  608  construed to carry out the purposes thereof.
  609         (a) This section does not limit the state or its agencies
  610  in the acquisition, design, or construction of public projects
  611  pursuant to other statutory authority.
  612         (b) Except as otherwise provided in this section, this
  613  section does not amend existing laws by granting additional
  614  powers to, or further restricting, local governmental entities
  615  from regulating and entering into cooperative arrangements with
  616  the private sector for the planning, construction, and operation
  617  of facilities.
  618         (c) This section does not waive any requirement of s.
  619  287.055.
  620         Section 2. This act shall take effect July 1, 2013.