Florida Senate - 2024 CS for CS for SB 266
By the Appropriations Committee on Transportation, Tourism, and
Economic Development; the Committee on Transportation; and
Senator Hooper
606-03119-24 2024266c2
1 A bill to be entitled
2 An act relating to transportation; amending s. 206.46,
3 F.S.; prohibiting the Department of Transportation
4 from annually committing more than a certain
5 percentage of revenues derived from state fuel taxes
6 and motor vehicle license-related fees to public
7 transit projects; providing exceptions; amending s.
8 288.9606, F.S.; conforming provisions to changes made
9 by the act; making technical changes; amending s.
10 334.30, F.S.; authorizing the department to enter into
11 comprehensive agreements with private entities or the
12 consortia thereof for the building, operation,
13 ownership, or financing of transportation facilities;
14 conforming provisions to changes made by the act;
15 replacing the term “public-private partnership
16 agreement” with the term “comprehensive agreement”;
17 requiring a private entity to provide an independent
18 traffic and revenue study prepared by a certain
19 expert; providing a requirement for such study;
20 revising the timeframe within which the department
21 must publish a certain notice of receipt of an
22 unsolicited proposal for a public-private
23 transportation project; authorizing the department to
24 enter into an interim agreement with a private entity
25 regarding a qualifying project; providing that an
26 interim agreement does not obligate the department to
27 enter into a comprehensive agreement and is not
28 required under certain circumstances; providing
29 requirements for an interim agreement; conforming
30 provisions to changes made by the act; authorizing the
31 secretary of the department to authorize comprehensive
32 agreements for a term of up to 75 years for certain
33 projects; making technical changes; requiring the
34 department to notify the Division of Bond Finance of
35 the State Board of Administration before entering into
36 an interim agreement or comprehensive agreement;
37 amending s. 336.044, F.S.; prohibiting a local
38 governmental entity from adopting certain standards or
39 specifications concerning asphalt pavement material;
40 amending s. 337.11, F.S.; requiring the department to
41 receive three letters of interest before proceeding
42 with requests for proposals for certain contracts;
43 making technical changes; amending s. 337.18, F.S.;
44 authorizing the department to allow the issuance of
45 multiple contract performance and payment bonds in
46 succession to meet certain requirements; revising the
47 timeframe for certain actions against the contractor
48 or the surety; specifying a timeframe for when an
49 action for recovery of retainage must be instituted;
50 amending s. 337.195, F.S.; revising a presumption
51 regarding the proximate cause of death, injury, or
52 damage in a civil suit against the department;
53 defining terms; providing for immunity for contractors
54 under certain circumstances; conforming provisions
55 related to certain limitations on liability relating
56 to traffic control plans; making technical changes;
57 providing construction; providing that certain
58 provisions do not preclude liability when the
59 contractor’s negligence is the proximate cause of the
60 personal injury, property damage, or death; revising a
61 presumption regarding a design engineer’s degree of
62 care and skill; deleting immunity for certain persons
63 and entities; creating s. 339.2820, F.S.; creating
64 within the department a local agency program for a
65 specified purpose; requiring the department to update
66 certain project cost estimates at a specified time and
67 include a contingency amount as part of the project
68 cost estimate; authorizing the department to oversee
69 certain projects; requiring local agencies to
70 prioritize budgeting certain local projects through
71 their respective M.P.O.’s or governing boards for a
72 specified purpose; specifying that certain funds are
73 available only to local agencies that are certified by
74 the department; requiring local agencies to include in
75 certain contracts a specified document and a
76 contingency amount for costs incurred due to
77 unforeseen conditions; amending s. 339.2825, F.S.;
78 conforming a provision to changes made by the act;
79 providing an effective date.
80
81 Be It Enacted by the Legislature of the State of Florida:
82
83 Section 1. Subsection (6) is added to section 206.46,
84 Florida Statutes, to read:
85 206.46 State Transportation Trust Fund.—
86 (6) The department may not annually commit more than 20
87 percent of the revenues derived from state fuel taxes and motor
88 vehicle license-related fees deposited into the State
89 Transportation Trust Fund to public transit projects, in
90 accordance with chapter 341. However, this subsection does not
91 apply to either of the following:
92 (a) A public transit project that uses revenues derived
93 from state fuel taxes and motor vehicle license-related fees to
94 match funds made available by the Federal Government.
95 (b) A public transit project included in the transportation
96 improvement program adopted pursuant to s. 339.175(8) and
97 approved by a supermajority vote of the board of county
98 commissioners where the project is located.
99 Section 2. Subsections (6) and (7) of section 288.9606,
100 Florida Statutes, are amended to read:
101 288.9606 Issue of revenue bonds.—
102 (6) The proceeds of any bonds of the corporation may not be
103 used, in any manner, to acquire any building or facility that
104 will be, during the pendency of the financing, used by, occupied
105 by, leased to, or paid for by any state, county, or municipal
106 agency or entity. This subsection does not prohibit the use of
107 proceeds of bonds of the corporation for the purpose of
108 financing the acquisition or construction of a transportation
109 facility under a comprehensive public-private partnership
110 agreement authorized by s. 334.30.
111 (7) Notwithstanding any provision of this section, the
112 corporation in its corporate capacity may, without authorization
113 from a public agency under s. 163.01(7), issue revenue bonds or
114 other evidence of indebtedness under this section to:
115 (a) Finance the undertaking of any project within the state
116 that promotes renewable energy as defined in s. 366.91 or s.
117 377.803;
118 (b) Finance the undertaking of any project within the state
119 that is a project contemplated or allowed under s. 406 of the
120 American Recovery and Reinvestment Act of 2009; or
121 (c) If permitted by federal law, finance qualifying
122 improvement projects within the state under s. 163.08; or.
123 (d) Finance the costs of acquisition or construction of a
124 transportation facility by a private entity or consortium of
125 private entities under a comprehensive public-private
126 partnership agreement authorized by s. 334.30.
127 Section 3. Present subsections (8) through (13) of section
128 334.30, Florida Statutes, are redesignated as subsections (9)
129 through (14), respectively, a new subsection (8) is added to
130 that section, and subsections (1), (2), and (6) and present
131 subsections (8), (10), (11), and (13) of that section are
132 amended, to read:
133 334.30 Public-private transportation facilities.—The
134 Legislature finds and declares that there is a public need for
135 the rapid construction of safe and efficient transportation
136 facilities for the purpose of traveling within the state, and
137 that it is in the public’s interest to provide for the
138 construction of additional safe, convenient, and economical
139 transportation facilities.
140 (1) The department may receive or solicit proposals and,
141 with legislative approval as evidenced by approval of the
142 project in the department’s work program, enter into
143 comprehensive agreements with private entities, or consortia
144 thereof, for the building, operation, ownership, or financing of
145 transportation facilities. The department may advance projects
146 programmed in the adopted 5-year work program or projects
147 increasing transportation capacity and greater than $500 million
148 in the 10-year Strategic Intermodal Plan using funds provided by
149 public-private partnerships or private entities to be reimbursed
150 from department funds for the project as programmed in the
151 adopted work program. The department shall by rule establish an
152 application fee for the submission of unsolicited proposals
153 under this section. The fee must be sufficient to pay the costs
154 of evaluating the proposals. The department may engage the
155 services of private consultants to assist in the evaluation.
156 Before approval, the department must determine that the proposed
157 project:
158 (a) Is in the public’s best interest;
159 (b) Would not require state funds to be used unless the
160 project is on the State Highway System;
161 (c) Would have adequate safeguards in place to ensure that
162 no additional costs or service disruptions would be realized by
163 the traveling public and residents of the state in the event of
164 default or cancellation of the comprehensive agreement by the
165 department;
166 (d) Would have adequate safeguards in place to ensure that
167 the department or the private entity has the opportunity to add
168 capacity to the proposed project and other transportation
169 facilities serving similar origins and destinations; and
170 (e) Would be owned by the department upon completion or
171 termination of the comprehensive agreement.
172
173 The department shall ensure that all reasonable costs to the
174 state, related to transportation facilities that are not part of
175 the State Highway System, are borne by the private entity. The
176 department shall also ensure that all reasonable costs to the
177 state and substantially affected local governments and
178 utilities, related to the private transportation facility, are
179 borne by the private entity for transportation facilities that
180 are owned by private entities. For projects on the State Highway
181 System, the department may use state resources to participate in
182 funding and financing the project as provided for under the
183 department’s enabling legislation. Because the Legislature
184 recognizes that private entities or consortia thereof would
185 perform a governmental or public purpose or function when they
186 enter into comprehensive agreements with the department to
187 design, build, operate, own, or finance transportation
188 facilities, the transportation facilities, including leasehold
189 interests thereof, are exempt from ad valorem taxes as provided
190 in chapter 196 to the extent property is owned by the state or
191 other government entity, and from intangible taxes as provided
192 in chapter 199 and special assessments of the state, any city,
193 town, county, special district, political subdivision of the
194 state, or any other governmental entity. The private entities or
195 consortia thereof are exempt from tax imposed by chapter 201 on
196 all documents or obligations to pay money which arise out of the
197 comprehensive agreements to design, build, operate, own, lease,
198 or finance transportation facilities. Any private entities or
199 consortia thereof must pay any applicable corporate taxes as
200 provided in chapter 220, and reemployment assistance taxes as
201 provided in chapter 443, and sales and use tax as provided in
202 chapter 212 shall be applicable. The private entities or
203 consortia thereof must also register and collect the tax imposed
204 by chapter 212 on all their direct sales and leases that are
205 subject to tax under chapter 212. The comprehensive agreement
206 between the private entity or consortia thereof and the
207 department establishing a transportation facility under this
208 chapter constitutes documentation sufficient to claim any
209 exemption under this section.
210 (2) Comprehensive agreements entered into pursuant to this
211 section may authorize the private entity to impose tolls or
212 fares for the use of the facility. The following provisions
213 shall apply to such agreements:
214 (a) With the exception of the Florida Turnpike System, the
215 department may lease existing toll facilities through public
216 private partnerships. The comprehensive public-private
217 partnership agreement must ensure that the transportation
218 facility is properly operated, maintained, and renewed in
219 accordance with department standards.
220 (b) The department may develop new toll facilities or
221 increase capacity on existing toll facilities through public
222 private partnerships. The comprehensive public-private
223 partnership agreement must ensure that the toll facility is
224 properly operated, maintained, and renewed in accordance with
225 department standards.
226 (c) Any toll revenues shall be regulated by the department
227 pursuant to s. 338.165(3). The regulations governing the future
228 increase of toll or fare revenues shall be included in the
229 comprehensive public-private partnership agreement.
230 (d) The department shall provide the analysis required in
231 subparagraph (6)(e)2. to the Legislative Budget Commission
232 created pursuant to s. 11.90 for review and approval prior to
233 awarding a contract on a lease of an existing toll facility.
234 (e) The department shall include provisions in the
235 comprehensive public-private partnership agreement which that
236 ensure a negotiated portion of revenues from tolled or fare
237 generating projects are returned to the department over the life
238 of the comprehensive public-private partnership agreement. In
239 the case of a lease of an existing toll facility, the department
240 shall receive a portion of funds upon closing on the
241 comprehensive agreement agreements and shall also include
242 provisions in the comprehensive agreement to receive payment of
243 a portion of excess revenues over the life of the public-private
244 partnership.
245 (f) The private entity shall provide an independent
246 investment grade traffic and revenue study prepared by a an
247 internationally recognized traffic and revenue expert as part of
248 the private entity proposal. The study must be that is accepted
249 by the national bond rating agencies before closing on the
250 financing that supports the comprehensive agreement for the
251 public-private partnership project. The private entity shall
252 also provide a finance plan that identifies the project cost,
253 revenues by source, financing, major assumptions, internal rate
254 of return on private investments, and whether any government
255 funds are assumed to deliver a cost-feasible project, and a
256 total cash flow analysis beginning with implementation of the
257 project and extending for the term of the comprehensive
258 agreement.
259 (6) The procurement of public-private partnerships by the
260 department shall follow the provisions of this section. Sections
261 337.025, 337.11, 337.14, 337.141, 337.145, 337.175, 337.18,
262 337.185, 337.19, 337.221, and 337.251 may shall not apply to
263 procurements under this section unless a provision is included
264 in the procurement documents. The department shall ensure that
265 generally accepted business practices for exemptions provided by
266 this subsection are part of the procurement process or are
267 included in the comprehensive public-private partnership
268 agreement.
269 (a) The department may request proposals from private
270 entities for public-private transportation projects or, if the
271 department receives an unsolicited proposal, the department
272 shall publish a notice in the Florida Administrative Register
273 and a newspaper of general circulation at least once a week for
274 2 weeks stating that the department has received the proposal
275 and will accept, for between 30 and 120 days after the initial
276 date of publication as determined by the department based on the
277 complexity of the project, other proposals for the same project
278 purpose. A copy of the notice must be mailed to each local
279 government in the affected area.
280 (b) Public-private partnerships shall be qualified by the
281 department as part of the procurement process as outlined in the
282 procurement documents, provided such process ensures that the
283 private firm meets at least the minimum department standards for
284 qualification in department rule for professional engineering
285 services and road and bridge contracting prior to submitting a
286 proposal under the procurement.
287 (c) The department shall ensure that procurement documents
288 include provisions for performance of the private entity and
289 payment of subcontractors, including, but not limited to, surety
290 bonds, letters of credit, parent company guarantees, and lender
291 and equity partner guarantees. The department shall balance the
292 structure of the security package for the public-private
293 partnership that ensures performance and payment of
294 subcontractors with the cost of the security to ensure the most
295 efficient pricing.
296 (d) After the public notification period has expired, the
297 department shall rank the proposals in order of preference. In
298 ranking the proposals, the department may consider factors that
299 include, but are not limited to, professional qualifications,
300 general business terms, innovative engineering or cost-reduction
301 terms, finance plans, and the need for state funds to deliver
302 the project. If the department is not satisfied with the results
303 of the negotiations, the department may, at its sole discretion,
304 terminate negotiations with the proposer. If these negotiations
305 are unsuccessful, the department may go to the second-ranked and
306 lower-ranked firms, in order, using this same procedure. If only
307 one proposal is received, the department may negotiate in good
308 faith and, if the department is not satisfied with the results
309 of the negotiations, the department may, at its sole discretion,
310 terminate negotiations with the proposer. Notwithstanding this
311 subsection, the department may, at its discretion, reject all
312 proposals at any point in the process up to completion of a
313 contract with the proposer.
314 (e) The department shall provide an independent analysis of
315 the proposed public-private partnership that demonstrates the
316 cost-effectiveness and overall public benefit at the following
317 times:
318 1. Prior to moving forward with the procurement; and
319 2. If the procurement moves forward, prior to awarding the
320 contract.
321 (8) Before or in connection with the negotiation of a
322 comprehensive agreement, the department may enter into an
323 interim agreement with the private entity proposing the
324 development or operation of a qualifying project. An interim
325 agreement does not obligate the department to enter into a
326 comprehensive agreement. The interim agreement is discretionary
327 with the parties and is not required on a project for which the
328 parties may proceed directly to a comprehensive agreement
329 without the need for an interim agreement. An interim agreement
330 must be limited to any of the following provisions that:
331 (a) Authorize the private entity to commence activities for
332 which it may be compensated related to the proposed qualifying
333 project, including, but not limited to, project planning and
334 development, designing, environmental analysis and mitigation,
335 surveying, other activities concerning any part of the proposed
336 qualifying project, and ascertaining the availability of
337 financing for the proposed facility or facilities.
338 (b) Establish the process and timing for the negotiation of
339 the comprehensive agreement.
340 (c) Contain such other provisions related to an aspect of
341 the development or operation of a qualifying project which the
342 department and the private entity deem appropriate.
343 (9)(8) The department may enter into comprehensive public
344 private partnership agreements that include extended terms
345 providing annual payments for performance based on the
346 availability of service or the facility being open to traffic or
347 based on the level of traffic using the facility. In addition to
348 other provisions in this section, the following provisions shall
349 apply:
350 (a) The annual payments under any such comprehensive
351 agreement must shall be included in the department’s tentative
352 work program developed under s. 339.135 and the long-range
353 transportation plan for the applicable metropolitan planning
354 organization developed under s. 339.175. The department shall
355 ensure that annual payments on multiyear comprehensive public
356 private partnership agreements are prioritized ahead of new
357 capacity projects in the development and updating of the
358 tentative work program.
359 (b) The annual payments are subject to annual appropriation
360 by the Legislature as provided in the General Appropriations Act
361 in support of the first year of the tentative work program.
362 (11)(10) Before Prior to entering into any comprehensive
363 such agreement in which where funds are committed from the State
364 Transportation Trust Fund, the project must be prioritized as
365 follows:
366 (a) The department, in coordination with the local
367 metropolitan planning organization, shall prioritize projects
368 included in the Strategic Intermodal System 10-year and long
369 range cost-feasible plans.
370 (b) The department, in coordination with the local
371 metropolitan planning organization or local government where
372 there is no metropolitan planning organization, shall prioritize
373 projects, for facilities not on the Strategic Intermodal System,
374 included in the metropolitan planning organization cost-feasible
375 transportation improvement plan and long-range transportation
376 plan.
377 (12)(11) Comprehensive Public-private partnership
378 agreements under this section are shall be limited to a term not
379 exceeding 50 years. Upon making written findings that a
380 comprehensive an agreement under this section requires a term in
381 excess of 50 years, the secretary of the department may
382 authorize a term of up to 75 years for projects that are
383 partially or completely funded from project user fees.
384 Comprehensive agreements under this section may shall not have a
385 term in excess of 75 years unless specifically approved by the
386 Legislature. The department shall identify each new project
387 under this section with a term exceeding 75 years in the
388 transmittal letter that accompanies the submittal of the
389 tentative work program to the Governor and the Legislature in
390 accordance with s. 339.135.
391 (14)(13) In connection with a proposal to finance or
392 refinance a transportation facility pursuant to this section,
393 the department shall consult with the Division of Bond Finance
394 of the State Board of Administration. The department shall
395 notify the division before entering into an interim agreement or
396 comprehensive agreement and provide the division with the
397 information necessary to provide timely consultation and
398 recommendations. The Division of Bond Finance may make an
399 independent recommendation to the Executive Office of the
400 Governor.
401 Section 4. Subsection (5) of section 336.044, Florida
402 Statutes, is amended to read:
403 336.044 Use of recyclable materials in construction.—
404 (5) Notwithstanding any law, rule, or ordinance to the
405 contrary, a local governmental entity may not adopt standards or
406 specifications that are contrary to the department standards or
407 specifications for permissible use of reclaimed asphalt pavement
408 material or deem reclaimed asphalt pavement material as in
409 construction. For purposes of this section, such material may
410 not be considered solid waste.
411 Section 5. Paragraph (e) of subsection (7) and subsection
412 (13) of section 337.11, Florida Statutes, are amended to read:
413 337.11 Contracting authority of department; bids; emergency
414 repairs, supplemental agreements, and change orders; combined
415 design and construction contracts; progress payments; records;
416 requirements of vehicle registration.—
417 (7)
418 (e) For design-build contracts and phased design-build
419 contracts, the department must receive at least three letters of
420 interest in order to proceed with a request for proposals. The
421 department shall request proposals from no fewer than three of
422 the design-build firms submitting letters of interest. If a
423 design-build firm withdraws from consideration after the
424 department requests proposals, the department may continue if at
425 least two proposals are received.
426 (13) Any motor vehicle used in Each contract let by the
427 department for the performance of road or bridge construction or
428 maintenance work on a department project must shall require all
429 motor vehicles that the contractor operates or causes to be
430 operated in this state to be registered in compliance with
431 chapter 320.
432 Section 6. Paragraphs (a) and (d) of subsection (1) of
433 section 337.18, Florida Statutes, are amended to read:
434 337.18 Surety bonds for construction or maintenance
435 contracts; requirement with respect to contract award; bond
436 requirements; defaults; damage assessments.—
437 (1)(a) A surety bond shall be required of the successful
438 bidder in an amount equal to the awarded contract price.
439 However, the department may choose, in its discretion and
440 applicable only to multiyear maintenance contracts, to allow for
441 incremental annual contract bonds that cumulatively total the
442 full, awarded, multiyear contract price. The department may also
443 choose, in its discretion and applicable only to phased design
444 build construction contracts under s. 337.11(7)(b), to allow the
445 issuance of multiple contract performance and payment bonds in
446 succession to align with each phase of the contract to meet the
447 bonding requirement in this subsection.
448 1. The department may waive the requirement for all or a
449 portion of a surety bond if:
450 a. The contract price is $250,000 or less and the
451 department determines that the project is of a noncritical
452 nature and that nonperformance will not endanger public health,
453 safety, or property;
454 b. The prime contractor is a qualified nonprofit agency for
455 the blind or for the other severely handicapped under s.
456 413.036(2); or
457 c. The prime contractor is using a subcontractor that is a
458 qualified nonprofit agency for the blind or for the other
459 severely handicapped under s. 413.036(2). However, the
460 department may not waive more than the amount of the
461 subcontract.
462 2. If the Secretary of Transportation or the secretary’s
463 designee determines that it is in the best interests of the
464 department to reduce the bonding requirement for a project and
465 that to do so will not endanger public health, safety, or
466 property, the department may waive the requirement of a surety
467 bond in an amount equal to the awarded contract price for a
468 project having a contract price of $250 million or more and, in
469 its place, may set a surety bond amount that is a portion of the
470 total contract price and provide an alternate means of security
471 for the balance of the contract amount that is not covered by
472 the surety bond or provide for incremental surety bonding and
473 provide an alternate means of security for the balance of the
474 contract amount that is not covered by the surety bond. Such
475 alternative means of security may include letters of credit,
476 United States bonds and notes, parent company guarantees, and
477 cash collateral. The department may require alternate means of
478 security if a surety bond is waived. The surety on such bond
479 shall be a surety company authorized to do business in the
480 state. All bonds shall be payable to the department and
481 conditioned for the prompt, faithful, and efficient performance
482 of the contract according to plans and specifications and within
483 the time period specified, and for the prompt payment of all
484 persons defined in s. 713.01 furnishing labor, material,
485 equipment, and supplies for work provided in the contract;
486 however, whenever an improvement, demolition, or removal
487 contract price is $25,000 or less, the security may, in the
488 discretion of the bidder, be in the form of a cashier’s check,
489 bank money order of any state or national bank, certified check,
490 or postal money order. The department shall adopt rules to
491 implement this subsection. Such rules shall include provisions
492 under which the department shall refuse to accept bonds on
493 contracts when a surety wrongfully fails or refuses to settle or
494 provide a defense for claims or actions arising under a contract
495 for which the surety previously furnished a bond.
496 (d) An action, except for an action for recovery of
497 retainage, must be instituted by a claimant, whether in privity
498 with the contractor or not, against the contractor or the surety
499 on the payment bond or the payment provisions of a combined
500 payment and performance bond within 365 days after the
501 performance of the labor or completion of delivery of the
502 materials or supplies. An action for recovery of retainage must
503 be instituted against the contractor or the surety within 365
504 days after final acceptance of the contract work by the
505 department. A claimant may not waive in advance his or her right
506 to bring an action under the bond against the surety. In any
507 action brought to enforce a claim against a payment bond under
508 this section, the prevailing party is entitled to recover a
509 reasonable fee for the services of his or her attorney for trial
510 and appeal or for arbitration, in an amount to be determined by
511 the court, which fee must be taxed as part of the prevailing
512 party’s costs, as allowed in equitable actions.
513 Section 7. Section 337.195, Florida Statutes, is amended to
514 read:
515 337.195 Limits on liability.—
516 (1) In a civil action for the death of or injury to a
517 person, or for damage to property, against the Department of
518 Transportation or its agents, consultants, or contractors for
519 work performed on a highway, road, street, bridge, or other
520 transportation facility when the death, injury, or damage
521 resulted from a motor vehicle crash within a construction zone
522 in which the driver of one of the vehicles was under the
523 influence of alcoholic beverages as set forth in s. 316.193,
524 under the influence of any chemical substance as set forth in s.
525 877.111, or illegally under the influence of any substance
526 controlled under chapter 893, excluding low-THC cannabis, to the
527 extent that her or his normal faculties were impaired or that
528 she or he operated a vehicle recklessly as defined in s.
529 316.192, it is presumed that the driver’s operation of the
530 vehicle was the sole proximate cause of her or his own death,
531 injury, or damage. This presumption can be overcome if the gross
532 negligence or intentional misconduct of the Department of
533 Transportation, or of its agents, consultants, or contractors,
534 was a proximate cause of the driver’s death, injury, or damage.
535 (2)(a) For purposes of this section, the term:
536 1. “Contract documents” has the same meaning as in the
537 department’s Standard Specifications for Road and Bridge
538 Construction applicable under the contract between the
539 department and the contractor.
540 2. “Contractor” means a person or an entity, at any
541 contractual tier, including any member of a design-build team
542 pursuant to s. 337.11, who constructs, maintains, or repairs a
543 highway, road, street, bridge, or other transportation facility
544 for the department in connection with a department project.
545 3. “Design engineer” means a person or an entity, including
546 the design consultant of a design-build team, who contracts at
547 any tier to prepare or provide engineering plans, including
548 traffic control plans, for the construction or repair of a
549 highway, road, street, bridge, or other department
550 transportation facility for the department or in connection with
551 a department project.
552 4. “Traffic control plans” means the maintenance of traffic
553 plans designed by a professional engineer, or otherwise in
554 accordance with the department’s standard plans, and approved by
555 the department.
556 (b) A contractor is not liable for personal injury,
557 property damage, or death arising from any of the following:
558 1. The performance of the construction, maintenance, or
559 repair of the transportation facility, if, at the time the
560 personal injury, property damage, or death occurred, the
561 contractor was in compliance with the contract documents
562 material to the personal injury, property damage, or death.
563 2. Acts or omissions of a third party that furnishes or
564 contracts at any contractual level to furnish services or
565 materials to the transportation facility, including any
566 subcontractor; sub-subcontractor; laborer; materialman; owner,
567 lessor, or driver of a motor vehicle, trailer, semitrailer,
568 truck, heavy truck, truck tractor, or commercial motor vehicle,
569 as those terms are defined in s. 320.01; or any person who
570 performs services as an architect, a landscape architect, an
571 interior designer, an engineer, or a surveyor and mapper.
572 3. Acts or omissions of a third party who trespasses within
573 the limits of the transportation facility or otherwise is not
574 authorized to enter the area of the transportation facility in
575 which the personal injury, property damage, or death occurred.
576 4. Acts or omissions of a third party who damages,
577 modifies, moves, or removes any traffic control device, warning
578 device, barrier, or other facility or device used for the
579 public’s safety and convenience who constructs, maintains, or
580 repairs a highway, road, street, bridge, or other transportation
581 facility for the Department of Transportation is not liable to a
582 claimant for personal injury, property damage, or death arising
583 from the performance of the construction, maintenance, or repair
584 if, at the time of the personal injury, property damage, or
585 death, the contractor was in compliance with contract documents
586 material to the condition that was the proximate cause of the
587 personal injury, property damage, or death.
588 (c)(a) The limitations limitation on liability contained in
589 this subsection do does not apply when the proximate cause of
590 the personal injury, property damage, or death is a latent
591 condition, defect, error, or omission that was created by the
592 contractor and not a defect, error, or omission in the contract
593 documents; or when the proximate cause of the personal injury,
594 property damage, or death was the contractor’s failure to
595 perform, update, or comply with the maintenance of the traffic
596 control plans safety plan as required by the contract documents.
597 (d)(b) Nothing in This subsection may not shall be
598 interpreted or construed as relieving the contractor of any
599 obligation to provide the department of Transportation with
600 written notice of any apparent error or omission in the contract
601 documents, or as relieving the contractor of his or her contract
602 responsibility to manage the work of others performing under the
603 contract.
604 (e)(c) Nothing in This subsection may not shall be
605 interpreted or construed to alter or affect any claim of the
606 department of Transportation against such contractor.
607 (f)(d) This subsection does not affect any claim of any
608 entity against such contractor, which claim is associated with
609 such entity’s facilities on or in department of Transportation
610 roads or other transportation facilities.
611 (g) This subsection may not be interpreted or construed to
612 alter or amend any of the provisions of chapter 440, which shall
613 take precedence in the event of any conflict with this
614 subsection.
615 (h) This subsection does not preclude liability where the
616 contractor’s negligence is the proximate cause of the personal
617 injury, property damage, or death.
618 (3) In all cases involving personal injury, property
619 damage, or death, a design engineer is person or entity who
620 contracts to prepare or provide engineering plans for the
621 construction or repair of a highway, road, street, bridge, or
622 other transportation facility for the Department of
623 Transportation shall be presumed to have prepared such
624 engineering plans using the degree of care and skill ordinarily
625 exercised by other engineers in the field under similar
626 conditions and in similar localities and with due regard for
627 acceptable engineering standards and principles if the
628 engineering plans conformed to the department’s Department of
629 Transportation’s design standards material to the condition or
630 defect that was the proximate cause of the personal injury,
631 property damage, or death. This presumption can be overcome only
632 upon a showing of the design engineer’s person’s or entity’s
633 gross negligence in the preparation of the engineering plans and
634 may shall not be interpreted or construed to alter or affect any
635 claim of the department of Transportation against such design
636 engineer person or entity. The limitation on liability contained
637 in this subsection does shall not apply to any hidden or
638 undiscoverable condition created by the design engineer. This
639 subsection does not affect any claim of any entity against such
640 design engineer or engineering firm, which claim is associated
641 with such entity’s facilities on or in department of
642 Transportation roads or other transportation facilities.
643 (4) In any civil action for death, injury, or damages
644 against the Department of Transportation or its agents,
645 consultants, engineers, or contractors for work performed on a
646 highway, road, street, bridge, or other transportation facility,
647 if the department, its agents, consultants, engineers, or
648 contractors are immune from liability pursuant to this section
649 or are not parties to the litigation, they may not be named on
650 the jury verdict form or be found to be at fault or responsible
651 for the injury, death, or damage that gave rise to the damages.
652 Section 8. Section 339.2820, Florida Statutes, is created
653 to read:
654 339.2820 Local agency program.—
655 (1) There is created within the department a local agency
656 program for the purpose of providing assistance to subrecipient
657 agencies, which include counties, municipalities,
658 intergovernmental agencies, and other eligible governmental
659 entities, to develop, design, and construct transportation
660 facilities using federal funds allocated to the department from
661 federal agencies which are suballocated to local agencies. The
662 department shall update the project cost estimate in the year
663 the project is granted to the local agency and include a
664 contingency amount as part of the project cost estimate.
665 (2) The department is authorized to oversee projects funded
666 by the Federal Highway Administration.
667 (3) Local agencies shall prioritize budgeting local
668 projects through their respective M.P.O.’s or governing boards
669 so that those organizations or boards may receive reimbursement
670 for the services they provide to the public which are in
671 compliance with applicable federal laws, rules, and regulations.
672 (4) Federal-aid highway funds are available only to local
673 agencies that are certified by the department based on the
674 agencies’ qualifications, experience, and ability to comply with
675 federal requirements, and their ability to undertake and
676 satisfactorily complete the work.
677 (5) Local agencies shall include in their contracts to
678 develop, design, or construct transportation facilities the
679 department’s Division I General Requirements and Covenants for
680 local agencies as well as a contingency amount to cover costs
681 incurred due to unforeseen conditions.
682 Section 9. Subsection (3) of section 339.2825, Florida
683 Statutes, is amended to read:
684 339.2825 Approval of contractor-financed projects.—
685 (3) This section does not apply to a comprehensive public
686 private partnership agreement authorized in s. 334.30(2)(a).
687 Section 10. This act shall take effect July 1, 2024.