Bill Text: FL S2444 | 2010 | Regular Session | Introduced
Bill Title: Public-private Partnership Infrastructure Projects [WPSC]
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2010-04-30 - Died in Committee on Governmental Oversight and Accountability [S2444 Detail]
Download: Florida-2010-S2444-Introduced.html
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. 45 46 Be It Enacted by the Legislature of the State of Florida: 47 48 Section 1. Section 287.09475, Florida Statutes, is created 49 to read: 50 287.09475 Public-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. 130 131 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.
