The new legislation in Florida affecting Public Private Partnerships became effective July 1, 2013.

1. NEW P3 LEGISLATIONNEW P3 LEGISLATION
FEFPA CONFERENCEFEFPA CONFERENCE
July 2013July 2013
Lee A. Weintraub, Esq.Lee A. Weintraub, Esq.
Becker & Poliakoff, P.A.Becker & Poliakoff, P.A.
3111 Stirling Road3111 Stirling Road
Ft. Lauderdale, FL 33311Ft. Lauderdale, FL 33311
954-985-4147954-985-4147
lweintraub@becker-poliakoff.comlweintraub@becker-poliakoff.com

2. Section 287.05712 applies to any facility or projectSection 287.05712 applies to any facility or project
serving a public purposeserving a public purpose
 ““Qualifying Project” includes educational facilities or otherQualifying Project” includes educational facilities or other
buildings used or to be used by public educational institutionbuildings used or to be used by public educational institution
It applies to counties, municipalities, school boards, anyIt applies to counties, municipalities, school boards, any
other political subdivision of the state, and any publicother political subdivision of the state, and any public
body, corporate and politicbody, corporate and politic
Legislative findingsLegislative findings::
 Need for development & maintenance of educational facilities,Need for development & maintenance of educational facilities,
not wholly satisfied by existing procurement methodsnot wholly satisfied by existing procurement methods
 Inadequate resources to develop new educational facilities,Inadequate resources to develop new educational facilities,
which P3 can resolvewhich P3 can resolve

3. Establishes the Partnership for Public Facilities and InfrastructureEstablishes the Partnership for Public Facilities and Infrastructure
Act Guidelines Task ForceAct Guidelines Task Force
 Task force will recommend guidelines for the legislature to consider toTask force will recommend guidelines for the legislature to consider to
create a uniform process for establishing P3’screate a uniform process for establishing P3’s
 Including factors public entities should consider when processingIncluding factors public entities should consider when processing
requestsrequests
Task force will begin meeting by August 31, 2013 to establishTask force will begin meeting by August 31, 2013 to establish
procedures for the conduct of its businessprocedures for the conduct of its business
No more than two task force meetings may be held for the purposeNo more than two task force meetings may be held for the purpose
of taking public testimonyof taking public testimony
Task force must submit final recommendations to governor andTask force must submit final recommendations to governor and
legislature by July 1, 2014legislature by July 1, 2014

4. Formal establishment or adoption ofFormal establishment or adoption of
guidelines by public entity is not requiredguidelines by public entity is not required
for entity to request or receive P3for entity to request or receive P3
proposalsproposals
 Public entity may adopt its own guidelinesPublic entity may adopt its own guidelines
provided they are consistent with this statuteprovided they are consistent with this statute

5. Procurement ProceduresProcurement Procedures
Public entity may receive unsolicited proposalsPublic entity may receive unsolicited proposals
or may solicit proposals through traditionalor may solicit proposals through traditional
procurement methodsprocurement methods
Public entity may establish a reasonablePublic entity may establish a reasonable
application fee for unsolicited proposalsapplication fee for unsolicited proposals
 Fee must be sufficient to pay costs of evaluating theFee must be sufficient to pay costs of evaluating the
proposalproposal
 Public entity may hire private consultants to assist inPublic entity may hire private consultants to assist in
the evaluation, paid for by private entitythe evaluation, paid for by private entity

6. Procurement ProceduresProcurement Procedures
If the public entity intends to enter into aIf the public entity intends to enter into a
comprehensive agreement, it must publishcomprehensive agreement, it must publish
notice in the Florida Administrativenotice in the Florida Administrative
Register and newspaper of generalRegister and newspaper of general
circulation at least once a week for twocirculation at least once a week for two
weeksweeks

7. Procurement ProceduresProcurement Procedures
Notice must provide that the public entity has received aNotice must provide that the public entity has received a
proposal and will accept other proposals for the sameproposal and will accept other proposals for the same
projectproject
Time frame for accepting other proposals shall beTime frame for accepting other proposals shall be
determined by public entity on project by project basisdetermined by public entity on project by project basis
 Based upon complexity of the project and the public benefit to beBased upon complexity of the project and the public benefit to be
gained by allowing a longer or shorter period of time forgained by allowing a longer or shorter period of time for
competing proposalscompeting proposals
 Time frame must be at least 21 days, but no more than 120Time frame must be at least 21 days, but no more than 120
days, after initial date of publicationdays, after initial date of publication
Copy of the notice must be mailed to each localCopy of the notice must be mailed to each local
government in affected areagovernment in affected area

8. Procurement ProceduresProcurement Procedures
Public entity is authorized to approve projectPublic entity is authorized to approve project
if:if:
 Project is in public’s best interestProject is in public’s best interest
 Facility is owned by public entity or ownership will be conveyedFacility is owned by public entity or ownership will be conveyed
to public entityto public entity
 Adequate safeguards in place to ensure additional costs orAdequate safeguards in place to ensure additional costs or
service disruptions are not imposed on public if material defaultservice disruptions are not imposed on public if material default
or cancellation of agreementor cancellation of agreement
 Adequate safeguards in place to ensure capacity may be addedAdequate safeguards in place to ensure capacity may be added
if desiredif desired
 Estimated cost is reasonable in relation to similar facilitiesEstimated cost is reasonable in relation to similar facilities

9. Project Approval RequirementsProject Approval Requirements
Unsolicited proposal must be accompanied byUnsolicited proposal must be accompanied by
following items, unless waived by public entity:following items, unless waived by public entity:
 Conceptual design of facility and schedule forConceptual design of facility and schedule for
constructionconstruction
 Description of method by which private entityDescription of method by which private entity
proposes to secure necessary property interestsproposes to secure necessary property interests
 Description of private entity’s general plans forDescription of private entity’s general plans for
financing projectfinancing project
Includes sources of private entity’s funds and identity of anyIncludes sources of private entity’s funds and identity of any
dedicated revenue source or proposed debt or equitydedicated revenue source or proposed debt or equity
investment on behalf of private entityinvestment on behalf of private entity

10. CONTENTS OF UNSOLICITEDCONTENTS OF UNSOLICITED
PROPOSAL (CON’T)PROPOSAL (CON’T)
 Proposed user fees, lease payments or otherProposed user fees, lease payments or other
service payments over term of agreementservice payments over term of agreement
Including methodology for and circumstances thatIncluding methodology for and circumstances that
would allow changes to user feeswould allow changes to user fees

11. Project Qualification and ProcessProject Qualification and Process
After competitive bidding period has expired,After competitive bidding period has expired,
public entity ranks proposals received in order ofpublic entity ranks proposals received in order of
preferencepreference
 Public entity may consider professional qualifications,Public entity may consider professional qualifications,
general business terms, innovative designgeneral business terms, innovative design
techniques, cost reduction terms, and finance planstechniques, cost reduction terms, and finance plans
 Private entity must meet minimum standardsPrivate entity must meet minimum standards
contained in public entity’s guidelines for qualifyingcontained in public entity’s guidelines for qualifying
professional services & contracts for traditionalprofessional services & contracts for traditional
procurement projectsprocurement projects

12. Project Qualification and ProcessProject Qualification and Process
Public entity may then begin negotiatingPublic entity may then begin negotiating
with highest ranked firmwith highest ranked firm
 If pubic entity is not satisfied with results ofIf pubic entity is not satisfied with results of
negotiations, public entity may terminatenegotiations, public entity may terminate
negotiations and begin negotiating withnegotiations and begin negotiating with
second ranked firmsecond ranked firm
 Public entity may reject all proposals at anyPublic entity may reject all proposals at any
point in processpoint in process

13. Project Qualification and ProcessProject Qualification and Process
Public entity shall perform independentPublic entity shall perform independent
analysis of proposed P3 to demonstrateanalysis of proposed P3 to demonstrate
cost-effectiveness & overall public benefitcost-effectiveness & overall public benefit
before initiating procurement process orbefore initiating procurement process or
awarding contractawarding contract

14. Notice to Affected LocalNotice to Affected Local
JurisdictionsJurisdictions
Public entity must furnish copy of proposal to eachPublic entity must furnish copy of proposal to each
affected local jurisdictionaffected local jurisdiction
Each affected local jurisdiction has 60 days from receiptEach affected local jurisdiction has 60 days from receipt
of notice to submit written comments indicating whetherof notice to submit written comments indicating whether
proposed facility is incompatible with local jurisdiction’sproposed facility is incompatible with local jurisdiction’s
plansplans
If affected local jurisdiction fails to respond within 60If affected local jurisdiction fails to respond within 60
days, non-response is deemed acknowledgement thatdays, non-response is deemed acknowledgement that
project is compatibleproject is compatible

15. Interim AgreementInterim Agreement
May be entered into before or in connection withMay be entered into before or in connection with
negotiation for comprehensive agreementnegotiation for comprehensive agreement
Interim agreement does not obligate public entity to enterInterim agreement does not obligate public entity to enter
into comprehensive agreementinto comprehensive agreement
Interim agreement is discretionaryInterim agreement is discretionary
Parties may proceed directly to comprehensive agreementParties may proceed directly to comprehensive agreement

16. Interim AgreementInterim Agreement
Interim Agreement must be limited to provisionsInterim Agreement must be limited to provisions
that authorize private entity to commencethat authorize private entity to commence
activities for which it may be compensatedactivities for which it may be compensated
related to the projectrelated to the project
Including project planning and development, design,Including project planning and development, design,
environmental analysis & mitigation, survey, ascertainingenvironmental analysis & mitigation, survey, ascertaining
availability of financingavailability of financing
Establish process & timing for negotiation of comprehensiveEstablish process & timing for negotiation of comprehensive
agreementagreement
Such other provisions the parties deem appropriateSuch other provisions the parties deem appropriate

17. Comprehensive AgreementComprehensive Agreement
MustMust provide for:provide for:
 Payment and performance bondsPayment and performance bonds
 Public entity’s review and approval of project designPublic entity’s review and approval of project design
Does not require private entity to complete the design beforeDoes not require private entity to complete the design before
executing comprehensive agreementexecuting comprehensive agreement
 Public entity’s inspection of construction activitiesPublic entity’s inspection of construction activities
 Public liability insurance requirementsPublic liability insurance requirements
 Public entity’s monitoring of maintenance practices byPublic entity’s monitoring of maintenance practices by
private entityprivate entity

18. Comprehensive AgreementComprehensive Agreement
 Periodic financial reporting by private entity pertainingPeriodic financial reporting by private entity pertaining
to projectto project
 Fees, lease payments, or service paymentsFees, lease payments, or service payments
 Rights and responsibilities of parties during course ofRights and responsibilities of parties during course of
construction and operationsconstruction and operations
Including provisions for termination of agreement & rightsIncluding provisions for termination of agreement & rights
and responsibilities upon default by private entityand responsibilities upon default by private entity
– Must provide for circumstances whereby defaulting privateMust provide for circumstances whereby defaulting private
entity’s responsibilities and interests may be assumed by eitherentity’s responsibilities and interests may be assumed by either
entity participating in funding of project or public entityentity participating in funding of project or public entity

19. Comprehensive AgreementComprehensive Agreement
MayMay include:include:
 Agreement by public entity to make grants orAgreement by public entity to make grants or
loans to private entity from amounts receivedloans to private entity from amounts received
from federal, state or local government orfrom federal, state or local government or
agenciesagencies
 Notice of default and right to cure provisionsNotice of default and right to cure provisions

20. Comprehensive AgreementComprehensive Agreement
Private entity will receive revenues fromPrivate entity will receive revenues from
fee-generating uses of facility over life offee-generating uses of facility over life of
agreementagreement
 Pre-negotiated portion of same must bePre-negotiated portion of same must be
returned to public entityreturned to public entity

21. FinancingFinancing
Private entity may enter into private source financingPrivate entity may enter into private source financing
agreement with financing sourcesagreement with financing sources
 Financing agreement obligations and liens on property must beFinancing agreement obligations and liens on property must be
paid in full before transfer of ownership or operation of facility topaid in full before transfer of ownership or operation of facility to
public entitypublic entity
Public entity may provide its own capital or operatingPublic entity may provide its own capital or operating
budget to support projectbudget to support project
 Budget must be from any legally permissible funding source ofBudget must be from any legally permissible funding source of
public entitypublic entity
 Financing agreement may not require public entity to indemnifyFinancing agreement may not require public entity to indemnify
financing source, subject public entity’s facility to liens, or pledgefinancing source, subject public entity’s facility to liens, or pledge
security interestsecurity interest
Any such provision in financing agreement is void as matterAny such provision in financing agreement is void as matter
of lawof law

22. FinancingFinancing
Public entity shall appropriate contractualPublic entity shall appropriate contractual
payment obligation, if required bypayment obligation, if required by
comprehensive agreement, on prioritycomprehensive agreement, on priority
basisbasis
 Payment obligation must be appropriatedPayment obligation must be appropriated
before other non-contractual obligationsbefore other non-contractual obligations
payable from same enterprise or governmentpayable from same enterprise or government
fundfund

23. Expiration or Termination ofExpiration or Termination of
AgreementsAgreements
If private entity materially defaults, compensationIf private entity materially defaults, compensation
otherwise due to private entity would be payableotherwise due to private entity would be payable
to investors & lenders on job as provided in anyto investors & lenders on job as provided in any
operative agreementoperative agreement
 Provided costs of operating and maintaining facility are paid inProvided costs of operating and maintaining facility are paid in
the normal coursethe normal course
 Public entity’s assumption of development or operation of projectPublic entity’s assumption of development or operation of project
does not obligate it to pay any obligation of private entity fromdoes not obligate it to pay any obligation of private entity from
sources other than revenues from the project unless statedsources other than revenues from the project unless stated
otherwise in comprehensive agreementotherwise in comprehensive agreement

24. Sovereign immunity is not waivedSovereign immunity is not waived
Doesn’t waive any requirement of s.Doesn’t waive any requirement of s.
287.055287.055
This act took effect July 1, 2013This act took effect July 1, 2013