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       Florida Senate - 2010                                    SB 2444
       By Senator Baker
       20-01118B-10                                          20102444__
    1                        A bill to be entitled                      
    2         An act relating to public-private partnership
    3         infrastructure projects; creating s. 287.09475, F.S.;
    4         providing legislative findings and intent; defining
    5         terms; providing for state agencies and local
    6         governments to receive or solicit proposals to enter
    7         into a public works infrastructure project agreement
    8         with a private entity, or a consortium of private
    9         entities, to build, operate, or finance a public works
   10         infrastructure project; providing criteria for the
   11         selection of the project and the private entity that
   12         will enter into a partnership agreement with the
   13         participating governmental unit to build or operate
   14         the project; requiring all reasonable costs to the
   15         state which are related to the infrastructure project
   16         and not part of the governmental unit’s work plan to
   17         be borne by the private entity; authorizing the
   18         private entity to impose user fees for the use of the
   19         infrastructure project by the public; setting forth
   20         financing and revenue criteria for the infrastructure
   21         project agreement; requiring that each infrastructure
   22         facility be in compliance with all applicable federal,
   23         state, and local laws, construction standards, and
   24         performance standards; authorizing each participating
   25         governmental unit to exercise any lawful power
   26         possessed by it to aid in the development and
   27         construction of the infrastructure project; specifying
   28         applicable procurement procedures; requiring the
   29         procurement documents to provide for the payment of
   30         subcontractors; requiring a governmental unit to
   31         provide an independent analysis of the cost
   32         effectiveness and public benefit of a proposed
   33         project; authorizing a participating governmental unit
   34         to use innovative financing techniques for the
   35         infrastructure project; authorizing a governmental
   36         unit to enter into a public-private infrastructure
   37         project agreement that provides for payments based on
   38         performance; limiting the term of the infrastructure
   39         project agreement to a specified number of years;
   40         prohibiting the department or a participating
   41         governmental unit from soliciting proposals from or
   42         entering into an agreement with a private entity that
   43         engages in or benefits from dealings with a terrorist
   44         state; providing an effective date.
   46  Be It Enacted by the Legislature of the State of Florida:
   48         Section 1. Section 287.09475, Florida Statutes, is created
   49  to read:
   50         287.09475Public-private partnership infrastructure
   51  projects.—
   52         (1)The Legislature finds and declares that there is a
   53  public need for the rapid construction of public works
   54  infrastructure projects for the purpose of improving the
   55  economic, environmental, social, and cultural infrastructure of
   56  this state, and that it is in the public interest to provide for
   57  the construction or expansion of public works infrastructure
   58  projects.
   59         (2)As used in this section, the term:
   60         (a)Governmental unit” means a state agency, county,
   61  municipality, school district, or an independent special
   62  district.
   63         (b)Infrastructure project” or “public works
   64  infrastructure project” means a project to construct, operate,
   65  or maintain the basic public works of this state, including
   66  telecommunications, cable television, electricity, and broadband
   67  technology infrastructure; infrastructure for the transportation
   68  of gas, oil, or crude oil products; solid waste, waste water,
   69  and storm water infrastructure not connected with highway
   70  drainage; or other similar projects. The term does not include a
   71  transportation facility as defined in s. 334.03(31).
   72         (c)Maintain” includes ordinary repair, rehabilitation,
   73  capital maintenance, maintenance replacement, and any other
   74  categories of maintenance on an infrastructure project as
   75  designated by a participating governmental unit.
   76         (d)“Operate” or “operation” means an action to construct,
   77  maintain, rehabilitate, improve, equip, or modify an
   78  infrastructure project.
   79         (e)“Private entity” means a person who enters into a
   80  public-private infrastructure project agreement with a
   81  participating governmental unit.
   82         (f)“Participating governmental unit means the
   83  governmental unit that enters into a public-private
   84  infrastructure project agreement with a private entity.
   85         (g)“Public-private infrastructure project agreement” means
   86  the document representing the agreement between a private entity
   87  and a participating governmental unit. The agreement must
   88  include:
   89         1.Acceptance by the participating governmental unit of a
   90  private contribution, including a money payment, in exchange for
   91  allowing the private entity to construct, operate, manage, or
   92  maintain a public works infrastructure project or services
   93  connected with an infrastructure project;
   94         2.The means of delivering a project or service to the
   95  public; and
   96         3.Cooperation in researching, developing, and implementing
   97  projects or services for an infrastructure project.
   98         (h)“User fee” means the rate, toll, fee, or other charges
   99  imposed on the public by a private entity for use of all or part
  100  of an infrastructure project.
  101         (3)(a)A governmental unit may receive or solicit proposals
  102  and enter into a public-private infrastructure project agreement
  103  with a private entity, or a consortium of private entities, to
  104  build, operate, manage, maintain, or finance a public works
  105  infrastructure project. A participating governmental unit may
  106  advance a project included in its adopted work program or 10
  107  year plan. The project may use funds provided by the private
  108  entity, which shall be reimbursed from user fees derived from
  109  the project as programmed in the adopted work program.
  110         (b)Governmental units shall adopt rules to establish an
  111  application fee for the submission of unsolicited proposals
  112  under this section. The fee may not exceed the cost of
  113  evaluating the proposal.
  114         (c)A governmental unit may engage the services of private
  115  consultants to assist in the evaluation of proposals.
  116         (d)Before approving a project, the governmental unit must
  117  determine whether the proposed infrastructure project:
  118         1.Is in the public interest;
  119         2.Will have adequate safeguards in place to ensure that no
  120  additional costs or service disruptions would affect the public
  121  and residents of the state if the private entity defaults or if
  122  the governmental unit cancels the project;
  123         3.Will have adequate safeguards in place to ensure that
  124  the governmental unit or the private entity has the opportunity
  125  to add capacity to the proposed project and other infrastructure
  126  projects serving similar goals and objectives; and
  127         4.Will be owned by the governmental unit upon completion
  128  or termination of the public-private infrastructure project
  129  agreement.
  131  A participating governmental unit shall require all reasonable
  132  costs related to infrastructure projects that are not part of a
  133  participating governmental unit’s work plan to be borne by the
  134  private entity. This includes all design, development, and
  135  installation costs related to the project. The costs associated
  136  with the design, development, and installation of the public
  137  private infrastructure project may be recouped in the user fee,
  138  if applicable. The participating governmental unit shall also
  139  require that all reasonable costs to the state and substantially
  140  affected local governments and utilities related to the
  141  infrastructure project are borne by the private entity for
  142  infrastructure projects that are owned by private entities.
  143         (4)If a public-private infrastructure project agreement
  144  authorizes the private entity to impose user fees:
  145         (a)The participating governmental unit may lease an
  146  existing public works facility to a private entity through a
  147  public-private partnership. The public-private partnership
  148  infrastructure project agreement must require that the
  149  infrastructure facility is properly operated, maintained, and
  150  renewed in accordance with the participating governmental unit’s
  151  standards.
  152         (b)The participating governmental unit may develop new
  153  infrastructure projects or increase capacity of existing
  154  projects through public-private partnerships. The public-private
  155  partnership infrastructure project agreement must require that
  156  the public works infrastructure project is properly operated and
  157  maintained in accordance with the participating governmental
  158  unit’s existing standards.
  159         (c)Revenue from user fees must be regulated by the
  160  participating governmental unit. The regulations governing
  161  future increases in fees or rates must be included in the
  162  public-private partnership infrastructure project agreement.
  163         (d)The public-private partnership infrastructure project
  164  agreement must include provisions requiring that a portion of
  165  revenue from projects that generate revenue is returned to the
  166  participating governmental unit over the term of the agreement.
  167  If an infrastructure project agreement includes the lease of an
  168  existing public works facility, the participating governmental
  169  unit must receive a portion of the funds upon closing the
  170  agreement, with the remainder paid from excess revenue that
  171  accrues during the term of the public-private infrastructure
  172  project agreement.
  173         (e)The private entity must provide to the participating
  174  governmental unit an investment-grade usage and revenue study
  175  prepared by an internationally recognized public works revenue
  176  expert who is recognized by the national bond rating agencies.
  177  The private entity must also provide a financing plan that
  178  identifies the project costs; lists the projected revenue by
  179  source; states the methodology of the financing plan, including
  180  supporting calculations and assumptions used to evaluate costs
  181  and revenues, and the internal rate of return on private
  182  investments; specifies whether any government funds are
  183  necessary in order to deliver a cost-feasible project; and
  184  provides a total cash flow analysis beginning with
  185  implementation of the project and extending for the term of the
  186  public-private infrastructure project agreement.
  187         (5)Each infrastructure project constructed pursuant to
  188  this section shall be constructed in compliance with all
  189  requirements of federal, state, and local laws; state, regional,
  190  and local comprehensive plans; applicable rules, policies,
  191  procedures, and standards for infrastructure public works
  192  projects; and any other conditions that a participating
  193  governmental unit determines to be in the public interest.
  194         (6)The participating governmental unit may exercise its
  195  powers with respect to the development and construction of state
  196  and local public works infrastructure projects, including
  197  eminent domain, to facilitate the development and construction
  198  of infrastructure projects under this section. The participating
  199  governmental unit may provide services to the private entity,
  200  but the public-private infrastructure project agreement must
  201  provide for full reimbursement for these services.
  202         (7)Except as otherwise provided in this section, this
  203  section does not grant additional powers to, or further
  204  restrict, local governmental entities from regulating and
  205  entering into cooperative arrangements with private entities for
  206  the planning, construction, and operation of infrastructure
  207  projects.
  208         (8)Procurement conducted by a governmental unit shall
  209  adhere to the requirements set forth in s. 287.057.
  210         (a)Procurement documents must include provisions for
  211  performance by the private entity and payment of subcontractors,
  212  including, but not limited to, surety bonds, letters of credit,
  213  parent company guarantees, and lender and equity partner
  214  guarantees. The governmental unit must make a good faith effort
  215  to balance the structure of the security requirements with the
  216  cost of the security in order to ensure the most efficient
  217  pricing.
  218         (b)The governmental unit must provide an independent
  219  analysis of the proposed public-private infrastructure project
  220  agreement which demonstrates its cost-effectiveness and overall
  221  public benefit before moving forward with procurement and, if
  222  the procurement moves forward, before awarding the contract.
  223         (9)A governmental unit may use innovative finance
  224  techniques associated with a public-private partnership under
  225  this section, including, but not limited to, federal loans as
  226  provided in 23 and 49 C.F.R. and commercial bank loans.
  227         (10)A participating governmental unit may enter into a
  228  public-private infrastructure project agreement that includes
  229  extended terms providing annual payments for performance based
  230  on the availability of services or the opening of a facility to
  231  the public. In addition to other provisions in this section, the
  232  following apply:
  233         (a)The annual payments under a public works infrastructure
  234  project agreement must be included in the participating
  235  governmental unit’s tentative work program and the long-range
  236  infrastructure plan for the applicable metropolitan planning
  237  organization. The participating governmental unit shall ensure
  238  that annual payments on multiyear, public-private infrastructure
  239  project agreements are prioritized ahead of new capacity
  240  projects in the development and updating of the tentative work
  241  infrastructure project.
  242         (b)The annual payments must be subject to annual
  243  appropriation by the Legislature as specified in the General
  244  Appropriations Act or subject to appropriation by the governing
  245  body of the governmental unit that provides the initial funding
  246  support for the program.
  247         (11)A public-private infrastructure project agreement
  248  under this section is limited to a term not exceeding 50 years.
  249  All renewals of the agreement must be expressly approved by the
  250  governing body of the participating governmental unit or an
  251  agency head.
  252         (12) A participating governmental unit may not receive or
  253  solicit proposals from, or enter into a public-private
  254  infrastructure project agreement with, any private entity or
  255  consortium of private entities to build, operate, manage,
  256  maintain, or finance a public works infrastructure project under
  257  this section if the private entity or consortium of private
  258  entities engages in or in any way benefits from dealings with,
  259  or activities related to or involving, a terrorist state. For
  260  the purposes of this section, “terrorist state” is defined as
  261  any state, country, or nation designated by the United States
  262  Department of State as a state sponsor of terrorism.
  263         Section 2. This act shall take effect July 1, 2010.

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