Florida Senate - 2015 CS for CS for SB 824
By the Committees on Governmental Oversight and Accountability;
and Community Affairs; and Senator Evers
585-03186-15 2015824c2
1 A bill to be entitled
2 An act relating to public-private partnerships;
3 transferring, renumbering, and amending s. 287.05712,
4 F.S.; revising definitions; deleting provisions
5 creating the Public-Private Partnership Guidelines
6 Task Force; requiring a private entity that submits an
7 unsolicited proposal to pay an initial application fee
8 and additional amounts if the fee does not cover
9 certain costs; specifying payment methods; authorizing
10 a responsible public entity to alter the statutory
11 timeframe for accepting proposals for a qualifying
12 project under certain circumstances; deleting a
13 provision that requires approval of the local
14 governing body before a school board enters into a
15 comprehensive agreement; requiring a responsible
16 public entity to include a design criteria package in
17 a solicitation; specifying requirements for the design
18 criteria package; revising the conditions necessary
19 for a responsible public entity to approve a
20 comprehensive agreement; deleting provisions relating
21 to notice to affected local jurisdictions; providing
22 that fees imposed by a private entity must be applied
23 as set forth in the comprehensive agreement;
24 restricting provisions in financing agreements that
25 could result in a responsible public entity’s losing
26 ownership of real or tangible personal property;
27 deleting a provision that required a responsible
28 public entity to comply with specific financial
29 obligations; providing duties of the Department of
30 Management Services; revising provisions relating to
31 construction of the act; providing an effective date.
32
33 Be It Enacted by the Legislature of the State of Florida:
34
35 Section 1. Section 287.05712, Florida Statutes, is
36 transferred, renumbered as section 255.065, Florida Statutes,
37 and amended to read:
38 255.065 287.05712 Public-private partnerships.—
39 (1) DEFINITIONS.—As used in this section, the term:
40 (a) “Affected local jurisdiction” means a county,
41 municipality, or special district in which all or a portion of a
42 qualifying project is located.
43 (b) “Develop” means to plan, design, finance, lease,
44 acquire, install, construct, or expand.
45 (c) “Fees” means charges imposed by the private entity of a
46 qualifying project for use of all or a portion of such
47 qualifying project pursuant to a comprehensive agreement.
48 (d) “Lease payment” means any form of payment, including a
49 land lease, by a public entity to the private entity of a
50 qualifying project for the use of the project.
51 (e) “Material default” means a nonperformance of its duties
52 by the private entity of a qualifying project which jeopardizes
53 adequate service to the public from the project.
54 (f) “Operate” means to finance, maintain, improve, equip,
55 modify, or repair.
56 (g) “Private entity” means any natural person, corporation,
57 general partnership, limited liability company, limited
58 partnership, joint venture, business trust, public benefit
59 corporation, nonprofit entity, or other private business entity.
60 (h) “Proposal” means a plan for a qualifying project with
61 detail beyond a conceptual level for which terms such as fixing
62 costs, payment schedules, financing, deliverables, and project
63 schedule are defined.
64 (i) “Qualifying project” means:
65 1. A facility or project that serves a public purpose,
66 including, but not limited to, any ferry or mass transit
67 facility, vehicle parking facility, airport or seaport facility,
68 rail facility or project, fuel supply facility, oil or gas
69 pipeline, medical or nursing care facility, recreational
70 facility, sporting or cultural facility, or educational facility
71 or other building or facility that is used or will be used by a
72 public educational institution, or any other public facility or
73 infrastructure that is used or will be used by the public at
74 large or in support of an accepted public purpose or activity;
75 2. An improvement, including equipment, of a building that
76 will be principally used by a public entity or the public at
77 large or that supports a service delivery system in the public
78 sector;
79 3. A water, wastewater, or surface water management
80 facility or other related infrastructure; or
81 4. Notwithstanding any provision of this section, for
82 projects that involve a facility owned or operated by the
83 governing board of a county, district, or municipal hospital or
84 health care system, or projects that involve a facility owned or
85 operated by a municipal electric utility, only those projects
86 that the governing board designates as qualifying projects
87 pursuant to this section.
88 (j) “Responsible public entity” means a county,
89 municipality, school district, special district, Florida College
90 System institution, or state university board, or any other
91 political subdivision of the state; a public body corporate and
92 politic; or a regional entity that serves a public purpose and
93 is authorized to develop or operate a qualifying project.
94 (k) “Revenues” means the income, earnings, user fees, lease
95 payments, or other service payments relating to the development
96 or operation of a qualifying project, including, but not limited
97 to, money received as grants or otherwise from the Federal
98 Government, a public entity, or an agency or instrumentality
99 thereof in aid of the qualifying project.
100 (l) “Service contract” means a contract between a
101 responsible public entity and the private entity which defines
102 the terms of the services to be provided with respect to a
103 qualifying project.
104 (2) LEGISLATIVE FINDINGS AND INTENT.—The Legislature finds
105 that there is a public need for the construction or upgrade of
106 facilities that are used predominantly for public purposes and
107 that it is in the public’s interest to provide for the
108 construction or upgrade of such facilities.
109 (a) The Legislature also finds that:
110 1. There is a public need for timely and cost-effective
111 acquisition, design, construction, improvement, renovation,
112 expansion, equipping, maintenance, operation, implementation, or
113 installation of projects serving a public purpose, including
114 educational facilities, transportation facilities, water or
115 wastewater management facilities and infrastructure, technology
116 infrastructure, roads, highways, bridges, and other public
117 infrastructure and government facilities within the state which
118 serve a public need and purpose, and that such public need may
119 not be wholly satisfied by existing procurement methods.
120 2. There are inadequate resources to develop new
121 educational facilities, transportation facilities, water or
122 wastewater management facilities and infrastructure, technology
123 infrastructure, roads, highways, bridges, and other public
124 infrastructure and government facilities for the benefit of
125 residents of this state, and that a public-private partnership
126 has demonstrated that it can meet the needs by improving the
127 schedule for delivery, lowering the cost, and providing other
128 benefits to the public.
129 3. There may be state and federal tax incentives that
130 promote partnerships between public and private entities to
131 develop and operate qualifying projects.
132 4. A procurement under this section serves the public
133 purpose of this section if such procurement facilitates the
134 timely development or operation of a qualifying project.
135 (b) It is the intent of the Legislature to encourage
136 investment in the state by private entities; to facilitate
137 various bond financing mechanisms, private capital, and other
138 funding sources for the development and operation of qualifying
139 projects, including expansion and acceleration of such financing
140 to meet the public need; and to provide the greatest possible
141 flexibility to public and private entities contracting for the
142 provision of public services.
143 (3) PUBLIC-PRIVATE PARTNERSHIP GUIDELINES TASK FORCE.—
144 (a) There is created the Partnership for Public Facilities
145 and Infrastructure Act Guidelines Task Force for the purpose of
146 recommending guidelines for the Legislature to consider for
147 purposes of creating a uniform process for establishing public
148 private partnerships, including the types of factors responsible
149 public entities should review and consider when processing
150 requests for public-private partnership projects pursuant to
151 this section.
152 (b) The task force shall be composed of seven members, as
153 follows:
154 1. The Secretary of Management Services or his or her
155 designee, who shall serve as chair of the task force.
156 2. Six members appointed by the Governor, as follows:
157 a. One county government official.
158 b. One municipal government official.
159 c. One district school board member.
160 d. Three representatives of the business community.
161 (c) Task force members must be appointed by July 31, 2013.
162 By August 31, 2013, the task force shall meet to establish
163 procedures for the conduct of its business and to elect a vice
164 chair. The task force shall meet at the call of the chair. A
165 majority of the members of the task force constitutes a quorum,
166 and a quorum is necessary for the purpose of voting on any
167 action or recommendation of the task force. All meetings shall
168 be held in Tallahassee, unless otherwise decided by the task
169 force, and then no more than two such meetings may be held in
170 other locations for the purpose of taking public testimony.
171 Administrative and technical support shall be provided by the
172 department. Task force members shall serve without compensation
173 and are not entitled to reimbursement for per diem or travel
174 expenses.
175 (d) In reviewing public-private partnerships and developing
176 recommendations, the task force must consider:
177 1. Opportunities for competition through public notice and
178 the availability of representatives of the responsible public
179 entity to meet with private entities considering a proposal.
180 2. Reasonable criteria for choosing among competing
181 proposals.
182 3. Suggested timelines for selecting proposals and
183 negotiating an interim or comprehensive agreement.
184 4. If an accelerated selection and review and documentation
185 timelines should be considered for proposals involving a
186 qualifying project that the responsible public entity deems a
187 priority.
188 5. Procedures for financial review and analysis which, at a
189 minimum, include a cost-benefit analysis, an assessment of
190 opportunity cost, and consideration of the results of all
191 studies and analyses related to the proposed qualifying project.
192 6. The adequacy of the information released when seeking
193 competing proposals and providing for the enhancement of that
194 information, if deemed necessary, to encourage competition.
195 7. Current exemptions from public records and public
196 meetings requirements, if any changes to those exemptions are
197 necessary, or if any new exemptions should be created in order
198 to maintain the confidentiality of financial and proprietary
199 information received as part of an unsolicited proposal.
200 8. Recommendations regarding the authority of the
201 responsible public entity to engage the services of qualified
202 professionals, which may include a Florida-registered
203 professional or a certified public accountant, not otherwise
204 employed by the responsible public entity, to provide an
205 independent analysis regarding the specifics, advantages,
206 disadvantages, and long-term and short-term costs of a request
207 by a private entity for approval of a qualifying project, unless
208 the governing body of the public entity determines that such
209 analysis should be performed by employees of the public entity.
210 (e) The task force must submit a final report of its
211 recommendations to the Governor, the President of the Senate,
212 and the Speaker of the House of Representatives by July 1, 2014.
213 (f) The task force is terminated December 31, 2014. The
214 establishment of guidelines pursuant to this section or the
215 adoption of such guidelines by a responsible public entity is
216 not required for such entity to request or receive proposals for
217 a qualifying project or to enter into a comprehensive agreement
218 for a qualifying project. A responsible public entity may adopt
219 guidelines so long as such guidelines are not inconsistent with
220 this section.
221 (3)(4) PROCUREMENT PROCEDURES.—A responsible public entity
222 may receive unsolicited proposals or may solicit proposals for
223 qualifying projects and may thereafter enter into a
224 comprehensive an agreement with a private entity, or a
225 consortium of private entities, for the building, upgrading,
226 operating, ownership, or financing of facilities.
227 (a)1. The responsible public entity may establish a
228 reasonable application fee for the submission of an unsolicited
229 proposal under this section.
230 2. A private entity that submits an unsolicited proposal to
231 a responsible public entity must concurrently pay an initial
232 application fee, as determined by the responsible public entity.
233 Payment must be made by cash, cashier’s check, or other
234 noncancelable instrument. Personal checks may not be accepted.
235 3. If the initial application fee does not cover the
236 responsible public entity’s costs to evaluate the unsolicited
237 proposal, the responsible public entity must request in writing
238 the additional amounts required. The private entity must pay the
239 requested additional amounts within 30 days after receipt of the
240 notice. The responsible public entity may stop its review of the
241 unsolicited proposal if the private entity fails to pay the
242 additional fee.
243 4. If the responsible public entity does not evaluate the
244 unsolicited proposal, the responsible public entity must return
245 the application fee The fee must be sufficient to pay the costs
246 of evaluating the proposal. The responsible public entity may
247 engage the services of a private consultant to assist in the
248 evaluation.
249 (b) The responsible public entity may request a proposal
250 from private entities for a qualifying public-private project
251 or, if the responsible public entity receives an unsolicited
252 proposal for a qualifying public-private project and the
253 responsible public entity intends to enter into a comprehensive
254 agreement for the project described in the such unsolicited
255 proposal, the responsible public entity shall publish notice in
256 the Florida Administrative Register and a newspaper of general
257 circulation at least once a week for 2 weeks stating that the
258 responsible public entity has received a proposal and will
259 accept other proposals for the same project. The timeframe
260 within which the responsible public entity may accept other
261 proposals shall be determined by the responsible public entity
262 on a project-by-project basis based upon the complexity of the
263 qualifying project and the public benefit to be gained by
264 allowing a longer or shorter period of time within which other
265 proposals may be received; however, the timeframe for allowing
266 other proposals must be at least 21 days, but no more than 120
267 days, after the initial date of publication. If approved by a
268 majority vote of the responsible public entity’s governing body,
269 the responsible public entity may alter the timeframe for
270 accepting proposals to more adequately suit the needs of the
271 qualifying project. A copy of the notice must be mailed to each
272 local government in the affected area.
273 (c) If the responsible public entity solicits proposals
274 under this section, the solicitation must include a design
275 criteria package prepared by an architect, engineer, or
276 landscape architect licensed in this state which is sufficient
277 to allow private entities to prepare a bid or a response. The
278 design criteria package must specify performance-based criteria
279 for the project, including the legal description of the site,
280 with survey information; interior space requirements; material
281 quality standards; schematic layouts and conceptual design
282 criteria for the project; cost or budget estimates; design and
283 construction schedules; and site development and utility
284 requirements A responsible public entity that is a school board
285 may enter into a comprehensive agreement only with the approval
286 of the local governing body.
287 (d) Before approving a comprehensive agreement approval,
288 the responsible public entity must determine that the proposed
289 project:
290 1. Is in the public’s best interest.
291 2. Is for a facility that is owned by the responsible
292 public entity or for a facility for which ownership will be
293 conveyed to the responsible public entity.
294 3. Has adequate safeguards in place to ensure that
295 additional costs or service disruptions are not imposed on the
296 public in the event of material default or cancellation of the
297 comprehensive agreement by the responsible public entity.
298 4. Has adequate safeguards in place to ensure that the
299 responsible public entity or private entity has the opportunity
300 to add capacity to the proposed project or other facilities
301 serving similar predominantly public purposes.
302 5. Will be owned by the responsible public entity upon
303 completion, expiration, or termination of the comprehensive
304 agreement and upon payment of the amounts financed.
305 (e) Before signing a comprehensive agreement, the
306 responsible public entity must consider a reasonable finance
307 plan that is consistent with subsection (9) (11); the qualifying
308 project cost; revenues by source; available financing; major
309 assumptions; internal rate of return on private investments, if
310 governmental funds are assumed in order to deliver a cost
311 feasible project; and a total cash-flow analysis beginning with
312 the implementation of the project and extending for the term of
313 the comprehensive agreement.
314 (f) In considering an unsolicited proposal, the responsible
315 public entity may require from the private entity a technical
316 study prepared by a nationally recognized expert with experience
317 in preparing analysis for bond rating agencies. In evaluating
318 the technical study, the responsible public entity may rely upon
319 internal staff reports prepared by personnel familiar with the
320 operation of similar facilities or the advice of external
321 advisors or consultants who have relevant experience.
322 (4)(5) PROJECT APPROVAL REQUIREMENTS.—An unsolicited
323 proposal from a private entity for approval of a qualifying
324 project must be accompanied by the following material and
325 information, unless waived by the responsible public entity:
326 (a) A description of the qualifying project, including the
327 conceptual design of the facilities or a conceptual plan for the
328 provision of services, and a schedule for the initiation and
329 completion of the qualifying project.
330 (b) A description of the method by which the private entity
331 proposes to secure the necessary property interests that are
332 required for the qualifying project.
333 (c) A description of the private entity’s general plans for
334 financing the qualifying project, including the sources of the
335 private entity’s funds and the identity of any dedicated revenue
336 source or proposed debt or equity investment on behalf of the
337 private entity.
338 (d) The name and address of a person who may be contacted
339 for additional information concerning the proposal.
340 (e) The proposed user fees, lease payments, or other
341 service payments over the term of a comprehensive agreement, and
342 the methodology for and circumstances that would allow changes
343 to the user fees, lease payments, and other service payments
344 over time.
345 (f) Additional material or information that the responsible
346 public entity reasonably requests.
347
348 Any pricing or financial terms included in an unsolicited
349 proposal must be specific as to when the pricing or terms
350 expire.
351 (5)(6) PROJECT QUALIFICATION AND PROCESS.—
352 (a) The private entity, or the applicable party or parties
353 of the private entity’s team, must meet the minimum standards
354 contained in the responsible public entity’s guidelines for
355 qualifying professional services and contracts for traditional
356 procurement projects.
357 (b) The responsible public entity must:
358 1. Ensure that provision is made for the private entity’s
359 performance and payment of subcontractors, including, but not
360 limited to, surety bonds, letters of credit, parent company
361 guarantees, and lender and equity partner guarantees. For the
362 components of the qualifying project which involve construction
363 performance and payment, bonds are required and are subject to
364 the recordation, notice, suit limitation, and other requirements
365 of s. 255.05.
366 2. Ensure the most efficient pricing of the security
367 package that provides for the performance and payment of
368 subcontractors.
369 3. Ensure that provision is made for the transfer of the
370 private entity’s obligations if the comprehensive agreement
371 addresses termination upon is terminated or a material default
372 of the comprehensive agreement occurs.
373 (c) After the public notification period has expired in the
374 case of an unsolicited proposal, the responsible public entity
375 shall rank the proposals received in order of preference. In
376 ranking the proposals, the responsible public entity may
377 consider factors that include, but are not limited to,
378 professional qualifications, general business terms, innovative
379 design techniques or cost-reduction terms, and finance plans.
380 The responsible public entity may then begin negotiations for a
381 comprehensive agreement with the highest-ranked firm. If the
382 responsible public entity is not satisfied with the results of
383 the negotiations, the responsible public entity may terminate
384 negotiations with the proposer and negotiate with the second
385 ranked or subsequent-ranked firms, in the order consistent with
386 this procedure. If only one proposal is received, the
387 responsible public entity may negotiate in good faith, and if
388 the responsible public entity is not satisfied with the results
389 of the negotiations, the responsible public entity may terminate
390 negotiations with the proposer. Notwithstanding this paragraph,
391 the responsible public entity may reject all proposals at any
392 point in the process until a contract with the proposer is
393 executed.
394 (d) The responsible public entity shall perform an
395 independent analysis of the proposed public-private partnership
396 which demonstrates the cost-effectiveness and overall public
397 benefit before the procurement process is initiated or before
398 the contract is awarded.
399 (e) The responsible public entity may approve the
400 development or operation of an educational facility, a
401 transportation facility, a water or wastewater management
402 facility or related infrastructure, a technology infrastructure
403 or other public infrastructure, or a government facility needed
404 by the responsible public entity as a qualifying project, or the
405 design or equipping of a qualifying project that is developed or
406 operated, if:
407 1. There is a public need for or benefit derived from a
408 project of the type that the private entity proposes as the
409 qualifying project.
410 2. The estimated cost of the qualifying project is
411 reasonable in relation to similar facilities.
412 3. The private entity’s plans will result in the timely
413 acquisition, design, construction, improvement, renovation,
414 expansion, equipping, maintenance, or operation of the
415 qualifying project.
416 (f) The responsible public entity may charge a reasonable
417 fee to cover the costs of processing, reviewing, and evaluating
418 the request, including, but not limited to, reasonable attorney
419 fees and fees for financial and technical advisors or
420 consultants and for other necessary advisors or consultants.
421 (g) Upon approval of a qualifying project, the responsible
422 public entity shall establish a date for the commencement of
423 activities related to the qualifying project. The responsible
424 public entity may extend the commencement date.
425 (h) Approval of a qualifying project by the responsible
426 public entity is subject to entering into a comprehensive
427 agreement with the private entity.
428 (7) NOTICE TO AFFECTED LOCAL JURISDICTIONS.—
429 (a) The responsible public entity must notify each affected
430 local jurisdiction by furnishing a copy of the proposal to each
431 affected local jurisdiction when considering a proposal for a
432 qualifying project.
433 (b) Each affected local jurisdiction that is not a
434 responsible public entity for the respective qualifying project
435 may, within 60 days after receiving the notice, submit in
436 writing any comments to the responsible public entity and
437 indicate whether the facility is incompatible with the local
438 comprehensive plan, the local infrastructure development plan,
439 the capital improvements budget, any development of regional
440 impact processes or timelines, or other governmental spending
441 plan. The responsible public entity shall consider the comments
442 of the affected local jurisdiction before entering into a
443 comprehensive agreement with a private entity. If an affected
444 local jurisdiction fails to respond to the responsible public
445 entity within the time provided in this paragraph, the
446 nonresponse is deemed an acknowledgment by the affected local
447 jurisdiction that the qualifying project is compatible with the
448 local comprehensive plan, the local infrastructure development
449 plan, the capital improvements budget, or other governmental
450 spending plan.
451 (6)(8) INTERIM AGREEMENT.—Before or in connection with the
452 negotiation of a comprehensive agreement, the responsible public
453 entity may enter into an interim agreement with the private
454 entity proposing the development or operation of the qualifying
455 project. An interim agreement does not obligate the responsible
456 public entity to enter into a comprehensive agreement. The
457 interim agreement is discretionary with the parties and is not
458 required on a qualifying project for which the parties may
459 proceed directly to a comprehensive agreement without the need
460 for an interim agreement. An interim agreement must be limited
461 to provisions that:
462 (a) Authorize the private entity to commence activities for
463 which it may be compensated related to the proposed qualifying
464 project, including, but not limited to, project planning and
465 development, design, environmental analysis and mitigation,
466 survey, other activities concerning any part of the proposed
467 qualifying project, and ascertaining the availability of
468 financing for the proposed facility or facilities.
469 (b) Establish the process and timing of the negotiation of
470 the comprehensive agreement.
471 (c) Contain such other provisions related to an aspect of
472 the development or operation of a qualifying project that the
473 responsible public entity and the private entity deem
474 appropriate.
475 (7)(9) COMPREHENSIVE AGREEMENT.—
476 (a) Before developing or operating the qualifying project,
477 the private entity must enter into a comprehensive agreement
478 with the responsible public entity. The comprehensive agreement
479 must provide for:
480 1. Delivery of performance and payment bonds, letters of
481 credit, or other security acceptable to the responsible public
482 entity in connection with the development or operation of the
483 qualifying project in the form and amount satisfactory to the
484 responsible public entity. For the components of the qualifying
485 project which involve construction, the form and amount of the
486 bonds must comply with s. 255.05.
487 2. Review of the design for the qualifying project by the
488 responsible public entity and, if the design conforms to
489 standards acceptable to the responsible public entity, the
490 approval of the responsible public entity. This subparagraph
491 does not require the private entity to complete the design of
492 the qualifying project before the execution of the comprehensive
493 agreement.
494 3. Inspection of the qualifying project by the responsible
495 public entity to ensure that the private entity’s activities are
496 acceptable to the responsible public entity in accordance with
497 the comprehensive agreement.
498 4. Maintenance of a policy of public liability insurance, a
499 copy of which must be filed with the responsible public entity
500 and accompanied by proofs of coverage, or self-insurance, each
501 in the form and amount satisfactory to the responsible public
502 entity and reasonably sufficient to ensure coverage of tort
503 liability to the public and employees and to enable the
504 continued operation of the qualifying project.
505 5. Monitoring by the responsible public entity of the
506 maintenance practices to be performed by the private entity to
507 ensure that the qualifying project is properly maintained.
508 6. Periodic filing by the private entity of the appropriate
509 financial statements that pertain to the qualifying project.
510 7. Procedures that govern the rights and responsibilities
511 of the responsible public entity and the private entity in the
512 course of the construction and operation of the qualifying
513 project and in the event of the termination of the comprehensive
514 agreement or a material default by the private entity. The
515 procedures must include conditions that govern the assumption of
516 the duties and responsibilities of the private entity by an
517 entity that funded, in whole or part, the qualifying project or
518 by the responsible public entity, and must provide for the
519 transfer or purchase of property or other interests of the
520 private entity by the responsible public entity.
521 8. Fees, lease payments, or service payments. In
522 negotiating user fees, the fees must be the same for persons
523 using the facility under like conditions and must not materially
524 discourage use of the qualifying project. The execution of the
525 comprehensive agreement or a subsequent amendment is conclusive
526 evidence that the fees, lease payments, or service payments
527 provided for in the comprehensive agreement comply with this
528 section. Fees or lease payments established in the comprehensive
529 agreement as a source of revenue may be in addition to, or in
530 lieu of, service payments.
531 9. Duties of the private entity, including the terms and
532 conditions that the responsible public entity determines serve
533 the public purpose of this section.
534 (b) The comprehensive agreement may include:
535 1. An agreement by the responsible public entity to make
536 grants or loans to the private entity from amounts received from
537 the federal, state, or local government or an agency or
538 instrumentality thereof.
539 2. A provision under which each entity agrees to provide
540 notice of default and cure rights for the benefit of the other
541 entity, including, but not limited to, a provision regarding
542 unavoidable delays.
543 3. A provision that terminates the authority and duties of
544 the private entity under this section and dedicates the
545 qualifying project to the responsible public entity or, if the
546 qualifying project was initially dedicated by an affected local
547 jurisdiction, to the affected local jurisdiction for public use.
548 (8)(10) FEES.—A comprehensive An agreement entered into
549 pursuant to this section may authorize the private entity to
550 impose fees to members of the public for the use of the
551 facility. The following provisions apply to the comprehensive
552 agreement:
553 (a) The responsible public entity may develop new
554 facilities or increase capacity in existing facilities through a
555 comprehensive agreement with a private entity agreements with
556 public-private partnerships.
557 (b) The comprehensive public-private partnership agreement
558 must ensure that the facility is properly operated, maintained,
559 or improved in accordance with standards set forth in the
560 comprehensive agreement.
561 (c) The responsible public entity may lease existing fee
562 for-use facilities through a comprehensive public-private
563 partnership agreement.
564 (d) Any revenues must be authorized by and applied in the
565 manner set forth in regulated by the responsible public entity
566 pursuant to the comprehensive agreement.
567 (e) A negotiated portion of revenues from fee-generating
568 uses may must be returned to the responsible public entity over
569 the life of the comprehensive agreement.
570 (9)(11) FINANCING.—
571 (a) A private entity may enter into a private-source
572 financing agreement between financing sources and the private
573 entity. A financing agreement and any liens on the property or
574 facility must be paid in full at the applicable closing that
575 transfers ownership or operation of the facility to the
576 responsible public entity at the conclusion of the term of the
577 comprehensive agreement.
578 (b) The responsible public entity may lend funds to private
579 entities that construct projects containing facilities that are
580 approved under this section.
581 (c) The responsible public entity may use innovative
582 finance techniques associated with a public-private partnership
583 under this section, including, but not limited to, federal loans
584 as provided in Titles 23 and 49 C.F.R., commercial bank loans,
585 and hedges against inflation from commercial banks or other
586 private sources. In addition, the responsible public entity may
587 provide its own capital or operating budget to support a
588 qualifying project. The budget may be from any legally
589 permissible funding sources of the responsible public entity,
590 including the proceeds of debt issuances. A responsible public
591 entity may use the model financing agreement provided in s.
592 489.145(6) for its financing of a facility owned by a
593 responsible public entity. A financing agreement may not require
594 the responsible public entity to indemnify the financing source,
595 subject the responsible public entity’s facility to liens in
596 violation of s. 11.066(5), or secure financing of by the
597 responsible public entity by a mortgage on, or security interest
598 in, the real or tangible personal property of the responsible
599 public entity in a manner that could result in the loss of the
600 fee ownership of the property by the responsible public entity
601 with a pledge of security interest, and any such provision is
602 void.
603 (d) A responsible public entity shall appropriate on a
604 priority basis as required by the comprehensive agreement a
605 contractual payment obligation, annual or otherwise, from the
606 enterprise or other government fund from which the qualifying
607 projects will be funded. This required payment obligation must
608 be appropriated before other noncontractual obligations payable
609 from the same enterprise or other government fund.
610 (10)(12) POWERS AND DUTIES OF THE PRIVATE ENTITY.—
611 (a) The private entity shall:
612 1. Develop or operate the qualifying project in a manner
613 that is acceptable to the responsible public entity in
614 accordance with the provisions of the comprehensive agreement.
615 2. Maintain, or provide by contract for the maintenance or
616 improvement of, the qualifying project if required by the
617 comprehensive agreement.
618 3. Cooperate with the responsible public entity in making
619 best efforts to establish interconnection between the qualifying
620 project and any other facility or infrastructure as requested by
621 the responsible public entity in accordance with the provisions
622 of the comprehensive agreement.
623 4. Comply with the comprehensive agreement and any lease or
624 service contract.
625 (b) Each private facility that is constructed pursuant to
626 this section must comply with the requirements of federal,
627 state, and local laws; state, regional, and local comprehensive
628 plans; the responsible public entity’s rules, procedures, and
629 standards for facilities; and such other conditions that the
630 responsible public entity determines to be in the public’s best
631 interest and that are included in the comprehensive agreement.
632 (c) The responsible public entity may provide services to
633 the private entity. An agreement for maintenance and other
634 services entered into pursuant to this section must provide for
635 full reimbursement for services rendered for qualifying
636 projects.
637 (d) A private entity of a qualifying project may provide
638 additional services for the qualifying project to the public or
639 to other private entities if the provision of additional
640 services does not impair the private entity’s ability to meet
641 its commitments to the responsible public entity pursuant to the
642 comprehensive agreement.
643 (11)(13) EXPIRATION OR TERMINATION OF AGREEMENTS.—Upon the
644 expiration or termination of a comprehensive agreement, the
645 responsible public entity may use revenues from the qualifying
646 project to pay current operation and maintenance costs of the
647 qualifying project. If the private entity materially defaults
648 under the comprehensive agreement, the compensation that is
649 otherwise due to the private entity is payable to satisfy all
650 financial obligations to investors and lenders on the qualifying
651 project in the same way that is provided in the comprehensive
652 agreement or any other agreement involving the qualifying
653 project, if the costs of operating and maintaining the
654 qualifying project are paid in the normal course. Revenues in
655 excess of the costs for operation and maintenance costs may be
656 paid to the investors and lenders to satisfy payment obligations
657 under their respective agreements. A responsible public entity
658 may terminate with cause and without prejudice a comprehensive
659 agreement and may exercise any other rights or remedies that may
660 be available to it in accordance with the provisions of the
661 comprehensive agreement. The full faith and credit of the
662 responsible public entity may not be pledged to secure the
663 financing of the private entity. The assumption of the
664 development or operation of the qualifying project does not
665 obligate the responsible public entity to pay any obligation of
666 the private entity from sources other than revenues from the
667 qualifying project unless stated otherwise in the comprehensive
668 agreement.
669 (12)(14) SOVEREIGN IMMUNITY.—This section does not waive
670 the sovereign immunity of a responsible public entity, an
671 affected local jurisdiction, or an officer or employee thereof
672 with respect to participation in, or approval of, any part of a
673 qualifying project or its operation, including, but not limited
674 to, interconnection of the qualifying project with any other
675 infrastructure or project. A county or municipality in which a
676 qualifying project is located possesses sovereign immunity with
677 respect to the project, including, but not limited to, its
678 design, construction, and operation.
679 (13) DEPARTMENT OF MANAGEMENT SERVICES.—
680 (a) A responsible public entity may provide a copy of its
681 comprehensive agreement to the Department of Management
682 Services. A responsible public entity must redact any
683 confidential or exempt information from the copy of the
684 comprehensive agreement before providing it to the Department of
685 Management Services.
686 (b) The Department of Management Services may accept and
687 maintain copies of comprehensive agreements received from
688 responsible public entities for the purpose of sharing
689 comprehensive agreements with other responsible public entities.
690 (c) This subsection does not require a responsible public
691 entity to provide a copy of its comprehensive agreement to the
692 Department of Management Services.
693 (14)(15) CONSTRUCTION.—
694 (a) This section shall be liberally construed to effectuate
695 the purposes of this section.
696 (b) This section shall be construed as cumulative and
697 supplemental to any other authority or power vested in or
698 exercised by the governing body board of a county, municipality,
699 special district, or municipal hospital or health care system
700 including those contained in acts of the Legislature
701 establishing such public hospital boards or s. 155.40.
702 (c) This section does not affect any agreement or existing
703 relationship with a supporting organization involving such
704 governing body board or system in effect as of January 1, 2013.
705 (d)(a) This section provides an alternative method and does
706 not limit a county, municipality, special district, or other
707 political subdivision of the state in the procurement or
708 operation of a qualifying project acquisition, design, or
709 construction of a public project pursuant to other statutory or
710 constitutional authority.
711 (e)(b) Except as otherwise provided in this section, this
712 section does not amend existing laws by granting additional
713 powers to, or further restricting, a local governmental entity
714 from regulating and entering into cooperative arrangements with
715 the private sector for the planning, construction, or operation
716 of a facility.
717 (f)(c) This section does not waive any requirement of s.
718 287.055.
719 Section 2. This act shall take effect July 1, 2015.