_h1343__
HB 1343

1
A bill to be entitled
2An act relating to public-private partnership
3infrastructure projects; creating s. 287.09475, F.S.;
4providing legislative findings and intent; defining terms;
5providing for state agencies and local governments to
6receive or solicit proposals to enter into a public works
7infrastructure project agreement with a private entity, or
8a consortium of private entities, to build, operate, or
9finance a public works infrastructure project; providing
10criteria for the selection of the project and the private
11entity that will enter into a partnership agreement with
12the participating governmental unit to build or operate
13the project; requiring all reasonable costs to the state
14which are related to the infrastructure project and not
15part of the governmental unit's work plan to be borne by
16the private entity; authorizing the private entity to
17impose user fees for the use of the infrastructure project
18by the public; setting forth financing and revenue
19criteria for the infrastructure project agreement;
20requiring that each infrastructure facility be in
21compliance with all applicable federal, state, and local
22laws, construction standards, and performance standards;
23authorizing each participating governmental unit to
24exercise any lawful power possessed by it to aid in the
25development and construction of the infrastructure
26project; specifying applicable procurement procedures;
27requiring the procurement documents to provide for the
28payment of subcontractors; requiring a governmental unit
29to provide an independent analysis of the cost-
30effectiveness and public benefit of a proposed project;
31authorizing participating governmental unit to use
32innovative financing techniques for the infrastructure
33project; authorizing a governmental unit to enter into a
34public-private infrastructure project agreement that
35provides for payments based on performance; limiting the
36term of the infrastructure project agreement to a
37specified number of years; prohibiting the department or a
38participating governmental unit from soliciting proposals
39from or entering into an agreement with a private entity
40that engages in or benefits from dealings with a terrorist
41state; providing an effective date.
42
43Be It Enacted by the Legislature of the State of Florida:
44
45     Section 1.  Section 287.09475, Florida Statutes, is created
46to read:
47     287.09475  Public-private partnership infrastructure
48projects.-
49     (1)  The Legislature finds and declares that there is a
50public need for the rapid construction of public works
51infrastructure projects for the purpose of improving the
52economic, environmental, social, and cultural infrastructure of
53this state, and that it is in the public interest to provide for
54the construction or expansion of public works infrastructure
55projects.
56     (2)  As used in this section, the term:
57     (a)  "Governmental unit" means a state agency, county,
58municipality, school district, or an independent special
59district.
60     (b)  "Infrastructure project" or "public works
61infrastructure project" means a project to construct, operate,
62or maintain the basic public works of this state, including
63telecommunications, cable television, electricity, and broadband
64technology infrastructure; infrastructure for the transportation
65of gas, oil, or crude oil products; solid waste, waste water,
66and storm water infrastructure not connected with highway
67drainage; or other similar projects. The term does not include a
68transportation facility as defined in s. 334.03(31).
69     (c)  "Maintain" includes ordinary repair, rehabilitation,
70capital maintenance, maintenance replacement, and any other
71categories of maintenance on an infrastructure project as
72designated by a participating governmental unit.
73     (d)  "Operate" or "operation" means an action to construct,
74maintain, rehabilitate, improve, equip, or modify an
75infrastructure project.
76     (e)  "Private entity" means a person who enters into a
77public-private infrastructure project agreement with a
78participating governmental unit.
79     (f)  "Participating governmental unit" means the
80governmental unit that enters into a public-private
81infrastructure project agreement with a private entity.
82     (g)  "Public-private infrastructure project agreement"
83means the document representing the agreement between a private
84entity and a participating governmental unit. The agreement must
85include:
86     1.  Acceptance by the participating governmental unit of a
87private contribution, including a money payment, in exchange for
88allowing the private entity to construct, operate, manage, or
89maintain a public works infrastructure project or services
90connected with an infrastructure project;
91     2.  The means of delivering a project or service to the
92public; and
93     3.  Cooperation in researching, developing, and
94implementing projects or services for an infrastructure project.
95     (h)  "User fee" means the rate, toll, fee, or other charges
96imposed on the public by a private entity for use of all or part
97of an infrastructure project.
98     (3)(a)  A governmental unit may receive or solicit
99proposals and enter into a public-private infrastructure project
100agreement with a private entity, or a consortium of private
101entities, to build, operate, manage, maintain, or finance a
102public works infrastructure project. A participating
103governmental unit may advance a project included in its adopted
104work program or 10-year plan. The project may use funds provided
105by the private entity, which shall be reimbursed from user fees
106derived from the project as programmed in the adopted work
107program.
108     (b)  Governmental units shall adopt rules to establish an
109application fee for the submission of unsolicited proposals
110under this section. The fee may not exceed the cost of
111evaluating the proposal.
112     (c)  A governmental unit may engage the services of private
113consultants to assist in the evaluation of proposals.
114     (d)  Before approving a project, the governmental unit must
115determine whether the proposed infrastructure project:
116     1.  Is in the public interest;
117     2.  Will have adequate safeguards in place to ensure that
118no additional costs or service disruptions would affect the
119public and residents of the state if the private entity defaults
120or if the governmental unit cancels the project;
121     3.  Will have adequate safeguards in place to ensure that
122the governmental unit or the private entity has the opportunity
123to add capacity to the proposed project and other infrastructure
124projects serving similar goals and objectives; and
125     4.  Will be owned by the governmental unit upon completion
126or termination of the public-private infrastructure project
127agreement.
128
129A participating governmental unit shall require all reasonable
130costs related to infrastructure projects that are not part of a
131participating governmental unit's work plan to be borne by the
132private entity. This includes all design, development, and
133installation costs related to the project. The costs associated
134with the design, development, and installation of the public-
135private infrastructure project may be recouped in the user fee,
136if applicable. The participating governmental unit shall also
137require that all reasonable costs to the state and substantially
138affected local governments and utilities related to the
139infrastructure project are borne by the private entity for
140infrastructure projects that are owned by private entities.
141     (4)  If a public-private infrastructure project agreement
142authorizes the private entity to impose user fees:
143     (a)  The participating governmental unit may lease an
144existing public works facility to a private entity through a
145public-private partnership. The public-private partnership
146infrastructure project agreement must require that the
147infrastructure facility is properly operated, maintained, and
148renewed in accordance with the participating governmental unit's
149standards.
150     (b)  The participating governmental unit may develop new
151infrastructure projects or increase capacity of existing
152projects through public-private partnerships. The public-private
153partnership infrastructure project agreement must require that
154the public works infrastructure project is properly operated and
155maintained in accordance with the participating governmental
156unit's existing standards.
157     (c)  Revenue from user fees must be regulated by the
158participating governmental unit. The regulations governing
159future increases in fees or rates must be included in the
160public-private partnership infrastructure project agreement.
161     (d)  The public-private partnership infrastructure project
162agreement must include provisions requiring that a portion of
163revenue from projects that generate revenue is returned to the
164participating governmental unit over the term of the agreement.
165If an infrastructure project agreement includes the lease of an
166existing public works facility, the participating governmental
167unit must receive a portion of the funds upon closing the
168agreement, with the remainder paid from excess revenue that
169accrues during the term of the public-private infrastructure
170project agreement.
171     (e)  The private entity must provide to the participating
172governmental unit an investment-grade usage and revenue study
173prepared by an internationally recognized public works revenue
174expert who is recognized by the national bond rating agencies.
175The private entity must also provide a financing plan that
176identifies the project costs; lists the projected revenue by
177source; states the methodology of the financing plan, including
178supporting calculations and assumptions used to evaluate costs
179and revenues, and the internal rate of return on private
180investments; specifies whether any government funds are
181necessary in order to deliver a cost-feasible project; and
182provides a total cash flow analysis beginning with
183implementation of the project and extending for the term of the
184public-private infrastructure project agreement.
185     (5)  Each infrastructure project constructed pursuant to
186this section shall be constructed in compliance with all
187requirements of federal, state, and local laws; state, regional,
188and local comprehensive plans; applicable rules, policies,
189procedures, and standards for infrastructure public works
190projects; and any other conditions that a participating
191governmental unit determines to be in the public interest.
192     (6)  The participating governmental unit may exercise its
193powers with respect to the development and construction of state
194and local public works infrastructure projects, including
195eminent domain, to facilitate the development and construction
196of infrastructure projects under this section. The participating
197governmental unit may provide services to the private entity,
198but the public-private infrastructure project agreement must
199provide for full reimbursement for these services.
200     (7)  Except as otherwise provided in this section, this
201section does not grant additional powers to, or further
202restrict, local governmental entities from regulating and
203entering into cooperative arrangements with private entities for
204the planning, construction, and operation of infrastructure
205projects.
206     (8)  Procurement conducted by a governmental unit shall
207adhere to the requirements set forth in s. 287.057.
208     (a)  Procurement documents must include provisions for
209performance by the private entity and payment of subcontractors,
210including, but not limited to, surety bonds, letters of credit,
211parent company guarantees, and lender and equity partner
212guarantees. The governmental unit must make a good faith effort
213to balance the structure of the security requirements with the
214cost of the security in order to ensure the most efficient
215pricing.
216     (b)  The governmental unit must provide an independent
217analysis of the proposed public-private infrastructure project
218agreement which demonstrates its cost-effectiveness and overall
219public benefit before moving forward with procurement and, if
220the procurement moves forward, before awarding the contract.
221     (9)  A governmental unit may use innovative finance
222techniques associated with a public-private partnership under
223this section, including, but not limited to, federal loans as
224provided in 23 and 49 C.F.R. and commercial bank loans.
225     (10)  A participating governmental unit may enter into a
226public-private infrastructure project agreement that includes
227extended terms providing annual payments for performance based
228on the availability of services or the opening of a facility to
229the public. In addition to other provisions in this section, the
230following apply:
231     (a)  The annual payments under a public works
232infrastructure project agreement must be included in the
233participating governmental unit's tentative work program and the
234long-range infrastructure plan for the applicable metropolitan
235planning organization. The participating governmental unit shall
236ensure that annual payments on multiyear, public-private
237infrastructure project agreements are prioritized ahead of new
238capacity projects in the development and updating of the
239tentative work infrastructure project.
240     (b)  The annual payments must be subject to annual
241appropriation by the Legislature as specified in the General
242Appropriations Act or subject to appropriation by the governing
243body of the governmental unit that provides the initial funding
244support for the program.
245     (11)  A public-private infrastructure project agreement
246under this section is limited to a term not exceeding 50 years.
247All renewals of the agreement must be expressly approved by the
248governing body of the participating governmental unit or an
249agency head.
250     (12)  A participating governmental unit may not receive or
251solicit proposals from, or enter into a public-private
252infrastructure project agreement with, any private entity or
253consortium of private entities to build, operate, manage,
254maintain, or finance a public works infrastructure project under
255this section if the private entity or consortium of private
256entities engages in or in any way benefits from dealings with,
257or activities related to or involving, a terrorist state. For
258the purposes of this section, "terrorist state" is defined as
259any state, country, or nation designated by the United States
260Department of State as a state sponsor of terrorism.
261     Section 2.  This act shall take effect July 1, 2010.


CODING: Words stricken are deletions; words underlined are additions.

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