HomeMy WebLinkAboutDocumentation_Workshop_Tab 03_4/3/2023Agenda Item #3.
Workshop
STAFF
MEMO
Meeting: Workshop - Apr 03 2023
Staff Contact: Jeremy Allen, Village Manager Department: Manager
Discuss Options For Future Enhancements To Open Spaces
The Village continues to seek ways enhance existing and to expand open space throughout the Village
with limited resources. The Village staff will continue to look for grant opportunities, donations, and
Private -Public Partnerships (P3).
Grant
Parks and Open Space Florida Forever Grant Program
The Parks and Open Space Florida Forever grant program assists the Department of Environmental
Protection in helping communities meet the challenges of growth, supporting viable community
development and protecting natural resources and open space.
*If funded by the State of Florida, eligible funding would be available for application in June,
2023.
Florida Recreation Development Assistance Program (FRDAP).
This competitive, reimbursement grant program provides financial assistance for acquisition or
development of land for public outdoor recreation. Eligible participants include all county governments,
municipalities in Florida and other legally constituted local governmental entities with the responsibility
for providing outdoor recreational sites and facilities for the general public.
*Application cycle estimated in August, 2023
Donations
Per Village of Tequesta Donation Policy (Approved Aug. 1, 2022)
The Village welcomes donations that enhance Village services, reduce costs that the Village would
incur in the absence of the donation, or that otherwise provide a benefit to the Village.
Donations, whether in -kind, cash, or otherwise, shall be complete transfers of ownership, rights,
privileges, and/or title in or to the donated goods or services and become exclusive property of the
Village upon delivery.
Private -Public Partnership
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Public -private partnerships involve collaboration between a government agency and a private -sector
company that can be used to finance, build, and operate projects. Financing a project through a public -
private partnership can allow a project to be completed and/or make it a possibility.
Public -private partnerships often involve concessions, protection from liability, or partial ownership
rights over nominally public services and property to private sector, for -profit entities.
Florida Statutes require for a P3 procurement, it is necessary that the local government entering into
the P3 project must own the project and the property upon which it is developed at the conclusion of
the development.
Attached is the State Statutes regulating Private -Public Partnerships
This document and any attachments may be reproduced upon request in an alternative format by
completing our Accessibility Feedback Form, sending an e-mail to the Village Clerk or calling 561-768-
0443.
PROJECT NAME: NA BUDGET: NA ENCUMBERED: NA
Proposed:
NA
PROJECTED TOTAL: NA
Donation Policy Amended 8-11-2022
The 2022 Florida Statutes
Projected Remaining:
NA
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EXHIBIT A
Directive Number:
Effective Date: August 1, 2022
Approved by: Ap.^AAAAA,
Jn y AlleUiwllage, Manager
TITLE: Village of Tequesta Donation Policy
OBJECTIVE:
The purpose of this policy is to establish rules and regulations governing the acceptance,
valuation, and recognition of all types of donations, gifts, and sponsorships from third
parties to support Village governmental activities that serve a public purpose. This policy
is intended to create practices that adequately safeguard public funds, provide for
accountability, and ensure compliance with all federal, state and local laws. This policy
is separate and distinct from the Code of Ethics for Public Officers and Employees, Part
III, Chapter 112, Florida Statutes, as well as the gift policy included in the Palm Beach
County Code of Ethics.
SCOPE/RESPONSIBILITY:
This policy applies to all Village employees, organizations, volunteers and individuals
who receive, authorize, accept, value, or record donations, gifts, or sponsorships on
behalf of The Village.
PROCEDURES:
Definitions
1. Donation or Gift — refers to a contribution made to the Village of Tequesta without
expectation of goods, services, or significant benefit in return. Donations may be
in the form of money or in -kind contributions of products, services, investment
securities, real or personal property or any combination thereof. For purposes of
this policy, the terms "donation" and "gift" shall be synonymous.
2. Donation Agreement -an agreement between the Village and the donor that details
any restrictions on a donation as well as the respective obligations of the donor
and the Village.
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3. Donor— a person or other legal entity that proposes or provides a donation to the
Village.
4. Endowment — donations that are restricted to the extent that only earnings, and
not principal, may be used for a particular purpose.
5. Fundraising— any activity conducted with the intent of generating donations to the
Village. Fundraising activities may include, but are not limited to, promoting
endowment programs, program adoption or pledge drives, and contacting
individuals, companies, foundations, or other entities with a request for a donation
to the Village.
6. In -Kind — a donation provided in the form of products, goods and/or services that
do not include a monetary exchange.
7. Public Funds - defined as money, funds, and accounts, regardless of the source
from which the funds are derived, that are owned, held, or administered by the
state or any of its political subdivisions. All monies received through donations,
gifts, or sponsorships are considered public funds.
8. Sponsorship — an arrangement in which one party provides money, goods or
services in exchange for access to the commercial marketing potential associated
with the other party's activities.
9. Vendor— any person or entity who has a pending bid proposal, an offer or request
to sell goods or services, sell or lease real or personal property, or who currently
sells goods or services, or sells or leases real or personal property to the Village.
For purposes of this definition a vendor entity includes an owner, director, manager
or employee.
General Policv Statements
1. The Village welcomes donations that enhance Village services, reduce costs that
the Village would incur in the absence of the donation, or that otherwise provide a
benefit to the Village. It is the policy of the Village of Tequesta to consider all
donation requests and decide if accepting such donations is in the best interest of
the community.
2. The Village has no obligation to accept any donation proposed by a donor.
3. All donations shall be in compliance with Chapter 112, Florida Statutes, as well as
Sec. 2-444, Palm Beach County Code of Ethics.
4. The collection of funds or assets associated with donations, gifts or sponsorships
will comply with the Village's cash receipting policies. The expenditure of any
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public funds associated with donations, gifts, or sponsorships will also comply with
the Village's purchasing policies.
5. Donations, whether in -kind, cash, or otherwise, shall be complete transfers of
ownership, rights, privileges, and/or title in or to the donated goods or services and
become exclusive property of the Village upon delivery.
6. Donations, gifts, and sponsorships shall not be directed at specific Village
employees, vendors, or brand name goods or services.
7. Donated funds shall not compensate public employees, directly or indirectly.
8. Donations or gifts shall not be accepted that advertise or depict products that are
prohibited by law for sale or use by minors, such as alcohol, tobacco, or other
substances that are known to endanger the health and well-being of minors.
9. Village employees are not permitted to accept personal payments or gratuities in
any form from a vendor or potential vendor as a precondition for purchase of any
product or service.
10. The Village shall comply with all applicable laws and regulations of the Internal
Revenue Service regarding the acceptance of donations. All costs, including initial
installation, labor and materials associated with a donation are the responsibility
of the donor, unless otherwise agreed to by the Village. Some projects may require
an endowment to ensure the longevity of the gift and to assist the Village with
future maintenance.
11.The Village reserves the right to decline donations, gifts, and sponsorships that
are deemed to have not been made with the intent of furtherance of a public
purpose.
12. The making of a donation to the Village will not provide any extra consideration to
the donating or sponsoring party in relation to any Village procurement, any
regulatory activities of the Village, or other Village business. No Village employee
or other Village official is authorized to offer any such extra consideration to a
donating party.
13. In no event shall the Village be held liable for value or tax assertions/claims by the
donor. The donor(s) agree(s) to hold the Village harmless and indemnify the
Village for any and all claims which might arise from any person, entity or
corporation, resulting from the donor's use of the Village property or right-of-way
for installation purposes, or arising from the donor's performance or
improvement/item donated pursuant to this policy.
3
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14. The Village does not provide legal, accounting, tax or other such advice to donors.
Each donor is ultimately responsible for ensuring that the donor's proposed
donation meets and furthers the donor's charitable, financial and estate planning
goals. As such, each donor is encouraged to meet with a professional advisor
before making any donation to the Village.
Process
1. Types of Donations: Donations may be received in the form of cash, financial
securities, real or personal property. Donations may be restricted or unrestricted.
2. Who May Accept Donations: Donations of $5,000 or less may be accepted by the
Village Manager. All donations exceeding $5,000 must be brought before the
Village Council for approval and acceptance. All donations other than real property
may be evaluated and accepted by the following persons or bodies ("authorized
person") based on the value and nature of the donation — as follows:
Description of Donation Authorized Person
Donations of $5,000 or less Village Manager_
.....
Donationsgreater than $5,000 Village Council 1
-........... _. _ .....
Anonymous donations Village Council ;
3. For Donations greater than $5,000 a memo/letter detailing the intended purpose
for using these funds must be submitted by the donating party to the Village
Manager. As necessary, the Village may develop a review team to consider the
proposal. In certain instances, the appropriate Advisory Board or the Village
Council may be involved in the review process. The following guiding principles
will be considered when evaluating a donation:
• appropriate and safe location for placement, easements, utilities,
existing structures;
• durability, high -quality materials, longevity, conformity with Village's
architectural standards;
• liability, safety;
• future or ongoing maintenance, budget impact;
• future site development plans;
• natural environment;
• accessibility, usefulness; and/or
• overall public acceptance/approval.
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4. Depending on the nature of the donation, the Village may request supplemental
information.
5. Before acceptance of a donation valued at more than $5,000, the respective
obligations of the donor and the Village shall be set forth in a donation agreement.
6. The Village Manager may accept or decline any donation in the Village Manager's
sole discretion or may choose to request Village Council consideration of any
donation.
7. Because the Village is prohibited from investing in equities and many debt
securities, donations of publicly traded equity and debt securities will be
immediately sold upon receipt in the Village's designated brokerage account. The
sales proceeds are then transferred from the Village's brokerage account to its
depository bank account.
8. For gifts of property that require an independent qualified appraisal, Internal
Revenue Service regulations require the following to be included in the appraisal:
• Full description of the property.
• The physical condition of any tangible property.
• Date (or expected date) of contribution.
• List how the property will be used by the Village
• Name, address, and taxpayer identification number of the appraiser.
• Qualifications of the qualified appraiser.
• A statement that the appraisal was prepared for income tax
purposes.
• Date (or dates) property was valued.
• The appraised fair market value (one figure, not a range) on the date
(or expected date) of the contribution.
• Method of valuation (income approach, comparable sales or market
data approach, replacement cost less depreciation, etc.)
• The specific basis for the evaluation
• Name, address, taxpayer identification number of the donor
• Manner and date of acquisition and cost basis
• Name, address and tax ID number of donee (Village of Tequesta)
9. For donations of real property, the following information shall be submitted for
consideration to the Village Council through the office of the Village Manager:
a. the appraised value of the donation;
s
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b. any expenditure or maintenance obligations for the Village associated with the
donation;
c. whether any encumbrances or liens exist on the real property through the
review of a preliminary title report;
d. potential liabilities associated with the donation, such as hazardous conditions
or environmental concerns; or whether an environmental audit is necessary to
determine whether the property contains any hazardous material or has been
used in a manner prohibited by environmental laws;
e. whether the donation has any special restrictions, and if so, if those restrictions
are acceptable to the Village Council;
f. any recommendations for conditions of acceptance.
10.Once the proposal is reviewed, Village staff will respond to the applicant if the
donation was accepted or with the reasons the donation was rejected.
11.All costs, including initial installation, labor and materials are the responsibility of
the donor unless the Village agrees otherwise. Some projects may require an
endowment to ensure the longevity of the gift and to assist the Village with future
maintenance. In special situations, such as when the donor is allowed to hire a
contractor, a memorandum of understanding or a project agreement may be
required. A contingency fund may also be required to cover necessary change
orders and overruns associated with the project. Remaining contingency funds will
be applied to the endowment fund for future maintenance costs or returned to the
donor pursuant to the pertinent project agreement.
12. Unless specifically agreed to in writing, the Village may, at any future date, elect in
its sole discretion to remove or relocate the donation (donated property). No
permanent right, title, or interest of any kind shall vest in the donor's behalf by
virtue of donation acceptance.
13.All donations will receive appropriate recognition as determined by the Village
Manager or Village Council at the time the donation is accepted.
14. The Village Manager shall prepare a monthly report to the Village Council notifying
the Council of all donations accepted since the previous report, including the form
of the donation, restrictions on its use, its approximate value, and the name of the
donor.
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The 2022 Florida Statutes (including 2022 Special Session A and 2023 Special Session B)
Title XVIII
PUBLIC LANDS AND PROPERTY
Chapter 255
PUBLIC PROPERTY AND PUBLICLY OWNED BUILDINGS
View Entire Chapter
255.065 Public -private partnerships.—
(1) DEFINITIONS. —As used in this section, the term:
(a) "Affected local jurisdiction" means a county, municipality, or special district in which all or a portion
of a qualifying project is located.
(b) "Develop" means to plan, design, finance, lease, acquire, install, construct, or expand.
(c) "Fees" means charges imposed by the private entity of a qualifying project for use of all or a portion
of such qualifying project pursuant to a comprehensive agreement.
(d) "Lease payment" means any form of payment, including a land lease, by a public entity to the
private entity of a qualifying project for the use of the project.
(e) "Material default" means a nonperformance of its duties by the private entity of a qualifying
project which jeopardizes adequate service to the public from the project.
(f) "Operate" means to finance, maintain, improve, equip, modify, or repair.
(g) "Private entity" means any natural person, corporation, general partnership, limited liability
company, limited partnership, joint venture, business trust, public benefit corporation, nonprofit entity,
or other private business entity.
(h) "Proposal" means a plan for a qualifying project with detail beyond a conceptual level for which
terms such as fixing costs, payment schedules, financing, deliverables, and project schedule are defined.
(i) "Qualifying project" means:
1. A facility or project that serves a public purpose, including, but not limited to, any ferry or mass
transit facility, vehicle parking facility, airport or seaport facility, rail facility or project, fuel supply
facility, oil or gas pipeline, medical or nursing care facility, recreational facility, sporting or cultural
facility, or educational facility or other building or facility that is used or will be used by a public
educational institution, or any other public facility or infrastructure that is used or will be used by the
public at large or in support of an accepted public purpose or activity;
2. An improvement, including equipment, of a building that will be principally used by a public entity or
the public at large or that supports a service delivery system in the public sector;
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3. A water, wastewater, or surface water management facility or other related infrastructure; or
4. Notwithstanding any provision of this section, for projects that involve a facility owned or operated
by the governing board of a county, district, or municipal hospital or health care system, or projects that
involve a facility owned or operated by a municipal electric utility, only those projects that the governing
board designates as qualifying projects pursuant to this section.
(j) "Responsible public entity' means a county, municipality, school district, special district, or any
other political subdivision of the state; a public body corporate and politic; or a regional entity that
serves a public purpose and is authorized to develop or operate a qualifying project.
(k) "Revenues" means the income, earnings, user fees, lease payments, or other service payments
relating to the development or operation of a qualifying project, including, but not limited to, money
received as grants or otherwise from the Federal Government, a public entity, or an agency or
instrumentality thereof in aid of the qualifying project.
(1) "Service contract" means a contract between a responsible public entity and the private entity
which defines the terms of the services to be provided with respect to a qualifying project.
(2) LEGISLATIVE FINDINGS AND INTENT. —The Legislature finds that there is a public need for the
construction or upgrade of facilities that are used predominantly for public purposes and that it is in the
public's interest to provide for the construction or upgrade of such facilities.
(a) The Legislature also finds that:
1. There is a public need for timely and cost-effective acquisition, design, construction, improvement,
renovation, expansion, equipping, maintenance, operation, implementation, or installation of projects
serving a public purpose, including educational facilities, transportation facilities, water or wastewater
management facilities and infrastructure, technology infrastructure, roads, highways, bridges, and other
public infrastructure and government facilities within the state which serve a public need and purpose,
and that such public need may not be wholly satisfied by existing procurement methods.
2. There are inadequate resources to develop new educational facilities, transportation facilities, water
or wastewater management facilities and infrastructure, technology infrastructure, roads, highways,
bridges, and other public infrastructure and government facilities for the benefit of residents of this
state, and that a public -private partnership has demonstrated that it can meet the needs by improving
the schedule for delivery, lowering the cost, and providing other benefits to the public.
3. There may be state and federal tax incentives that promote partnerships between public and
private entities to develop and operate qualifying projects.
4. A procurement under this section serves the public purpose of this section if such procurement
facilitates the timely development or operation of a qualifying project.
(b) It is the intent of the Legislature to encourage investment in the state by private entities; to
facilitate various bond financing mechanisms, private capital, and other funding sources for the
development and operation of qualifying projects, including expansion and acceleration of such
financing to meet the public need; and to provide the greatest possible flexibility to public and private
entities contracting for the provision of public services.
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(3) PROCUREMENT PROCEDURES. —A responsible public entity may receive unsolicited proposals or
may solicit proposals for a qualifying project and may thereafter enter into a comprehensive agreement
with a private entity, or a consortium of private entities, for the building, upgrading, operating,
ownership, or financing of facilities.
(a)1. The responsible public entity may establish a reasonable application fee for the submission of an
unsolicited proposal under this section.
2. A private entity that submits an unsolicited proposal to a responsible public entity must
concurrently pay an initial application fee, as determined by the responsible public entity. Payment must
be made by cash, cashier's check, or other noncancelable instrument. Personal checks may not be
accepted.
3. If the initial application fee does not cover the responsible public entity's costs to evaluate the
unsolicited proposal, the responsible public entity must request in writing the additional amounts
required. The private entity must pay the requested additional amounts within 30 days after receipt of
the notice. The responsible public entity may stop its review of the unsolicited proposal if the private
entity fails to pay the additional amounts.
4. If the responsible public entity does not evaluate the unsolicited proposal, the responsible public
entity must return the application fee.
5. If the responsible public entity chooses to evaluate an unsolicited proposal involving architecture,
engineering, or landscape architecture, it must ensure a professional review and evaluation of the
design and construction proposed by the initial or subsequent proposers to assure material quality
standards, interior space utilization, budget estimates, design and construction schedules, and
sustainable design and construction standards consistent with public projects. Such review shall be
performed by an architect, a landscape architect, or an engineer licensed in this state qualified to
perform the review, and such professional shall advise the responsible public entity through completion
of the design and construction of the project.
(b) The responsible public entity may request a proposal from private entities for a qualifying project
or, if the responsible public entity receives an unsolicited proposal for a qualifying project and the
responsible public entity intends to enter into a comprehensive agreement for the project described in
the unsolicited proposal, the responsible public entity shall publish notice in the Florida Administrative
Register and a newspaper of general circulation at least once a week for 2 weeks stating that the
responsible public entity has received a proposal and will accept other proposals for the same project.
The timeframe within which the responsible public entity may accept other proposals shall be
determined by the responsible public entity on a project -by -project basis based upon the complexity of
the qualifying project and the public benefit to be gained by allowing a longer or shorter period of time
within which other proposals may be received; however, the timeframe for allowing other proposals
must be at least 21 days, but no more than 120 days, after the initial date of publication. If approved by
a majority vote of the responsible public entity's governing body, the responsible public entity may alter
the timeframe for accepting proposals to more adequately suit the needs of the qualifying project. A
copy of the notice must be mailed to each local government in the affected area.
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(c) If the solicited qualifying project provided in paragraph (b) includes design work, the solicitation
must include a design criteria package prepared by an architect, a landscape architect, or an engineer
licensed in this state which is sufficient to allow private entities to prepare a bid or a response. The
design criteria package must specify reasonably specific criteria for the qualifying project such as the
legal description of the site, with survey information; interior space requirements; material quality
standards; schematic layouts and conceptual design criteria for the qualifying project; cost or budget
estimates; design and construction schedules; and site development and utility requirements. The
licensed design professional who prepares the design criteria package shall be retained to serve the
responsible public entity through completion of the design and construction of the project.
(d) Before approving a comprehensive agreement, the responsible public entity must determine that
the proposed project:
1. Is in the public's best interest.
2. Is for a facility that is owned by the responsible public entity or for a facility for which ownership will
be conveyed to the responsible public entity.
3. Has adequate safeguards in place to ensure that additional costs or service disruptions are not
imposed on the public in the event of material default or cancellation of the comprehensive agreement
by the responsible public entity.
4. Has adequate safeguards in place to ensure that the responsible public entity or private entity has
the opportunity to add capacity to the proposed project or other facilities serving similar predominantly
public purposes.
5. Will be owned by the responsible public entity upon completion, expiration, or termination of the
comprehensive agreement and upon payment of the amounts financed.
(e) Before signing a comprehensive agreement, the responsible public entity must consider a
reasonable finance plan that is consistent with subsection (9); the qualifying project cost; revenues by
source; available financing; major assumptions; internal rate of return on private investments, if
governmental funds are assumed in order to deliver a cost -feasible project; and a total cash -flow
analysis beginning with the implementation of the project and extending for the term of the
comprehensive agreement.
(f) In considering an unsolicited proposal, the responsible public entity may require from the private
entity a technical study prepared by a nationally recognized expert with experience in preparing analysis
for bond rating agencies. In evaluating the technical study, the responsible public entity may rely upon
internal staff reports prepared by personnel familiar with the operation of similar facilities or the advice
of external advisors or consultants who have relevant experience.
(4) PROJECT APPROVAL REQUIREMENTS. —An unsolicited proposal from a private entity for approval of
a qualifying project must be accompanied by the following material and information, unless waived by
the responsible public entity:
(a) A description of the qualifying project, including the conceptual design of the facilities or a
conceptual plan for the provision of services, and a schedule for the initiation and completion of the
qualifying project.
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(b) A description of the method by which the private entity proposes to secure the necessary property
interests that are required for the qualifying project.
(c) A description of the private entity's general plans for financing the qualifying project, including the
sources of the private entity's funds and the identity of any dedicated revenue source or proposed debt
or equity investment on behalf of the private entity.
(d) The name and address of a person who may be contacted for additional information concerning
the proposal.
(e) The proposed user fees, lease payments, or other service payments over the term of a
comprehensive agreement, and the methodology for and circumstances that would allow changes to
the user fees, lease payments, and other service payments over time.
(f) Additional material or information that the responsible public entity reasonably requests.
Any pricing or financial terms included in an unsolicited proposal must be specific as to when the pricing
or terms expire.
(5) PROJECT QUALIFICATION AND PROCESS. —
(a) The private entity, or the applicable party or parties of the private entity's team, must meet the
minimum standards contained in the responsible public entity's guidelines for qualifying professional
services and contracts for traditional procurement projects.
(b) The responsible public entity must:
1. Ensure that provision is made for the private entity's performance and payment of subcontractors,
including, but not limited to, surety bonds, letters of credit, parent company guarantees, and lender and
equity partner guarantees. For the components of the qualifying project which involve construction
performance and payment, bonds are required and are subject to the recordation, notice, suit
limitation, and other requirements of s. 255.05.
2. Ensure the most efficient pricing of the security package that provides for the performance and
payment of subcontractors.
3. Ensure that the comprehensive agreement addresses termination upon a material default of the
comprehensive agreement.
(c) After the public notification period has expired in the case of an unsolicited proposal, the
responsible public entity shall rank the proposals received in order of preference. In ranking the
proposals, the responsible public entity may consider factors that include, but are not limited to,
professional qualifications, general business terms, innovative design techniques or cost -reduction
terms, and finance plans. The responsible public entity may then begin negotiations for a
comprehensive agreement with the highest -ranked firm. If the responsible public entity is not satisfied
with the results of the negotiations, the responsible public entity may terminate negotiations with the
proposer and negotiate with the second -ranked or subsequent -ranked firms, in the order consistent
with this procedure. If only one proposal is received, the responsible public entity may negotiate in good
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faith, and if the responsible public entity is not satisfied with the results of the negotiations, the
responsible public entity may terminate negotiations with the proposer. Notwithstanding this
paragraph, the responsible public entity may reject all proposals at any point in the process until a
contract with the proposer is executed.
(d) The responsible public entity shall perform an independent analysis of the proposed public -private
partnership which demonstrates the cost-effectiveness and overall public benefit before the
procurement process is initiated or before the contract is awarded.
(e) The responsible public entity may approve the development or operation of an educational facility,
a transportation facility, a water or wastewater management facility or related infrastructure, a
technology infrastructure or other public infrastructure, or a government facility needed by the
responsible public entity as a qualifying project, or the design or equipping of a qualifying project that is
developed or operated, if:
1. There is a public need for or benefit derived from a project of the type that the private entity
proposes as the qualifying project.
2. The estimated cost of the qualifying project is reasonable in relation to similar facilities.
3. The private entity's plans will result in the timely acquisition, design, construction, improvement,
renovation, expansion, equipping, maintenance, or operation of the qualifying project.
(f) The responsible public entity may charge a reasonable fee to cover the costs of processing,
reviewing, and evaluating the request, including, but not limited to, reasonable attorney fees and fees
for financial and technical advisors or consultants and for other necessary advisors or consultants.
(g) Upon approval of a qualifying project, the responsible public entity shall establish a date for the
commencement of activities related to the qualifying project. The responsible public entity may extend
the commencement date.
(h) Approval of a qualifying project by the responsible public entity is subject to entering into a
comprehensive agreement with the private entity.
(6) INTERIM AGREEMENT. —Before or in connection with the negotiation of a comprehensive
agreement, the responsible public entity may enter into an interim agreement with the private entity
proposing the development or operation of the qualifying project. An interim agreement does not
obligate the responsible public entity to enter into a comprehensive agreement. The interim agreement
is discretionary with the parties and is not required on a qualifying project for which the parties may
proceed directly to a comprehensive agreement without the need for an interim agreement. An interim
agreement must be limited to provisions that:
(a) Authorize the private entity to commence activities for which it may be compensated related to the
proposed qualifying project, including, but not limited to, project planning and development, design,
environmental analysis and mitigation, survey, other activities concerning any part of the proposed
qualifying project, and ascertaining the availability of financing for the proposed facility or facilities.
(b) Establish the process and timing of the negotiation of the comprehensive agreement.
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(c) Contain such other provisions related to an aspect of the development or operation of a qualifying
project that the responsible public entity and the private entity deem appropriate.
(7) COMPREHENSIVE AGREEMENT. —
(a) Before developing or operating the qualifying project, the private entity must enter into a
comprehensive agreement with the responsible public entity. The comprehensive agreement must
provide for:
1. Delivery of performance and payment bonds, letters of credit, or other security acceptable to the
responsible public entity in connection with the development or operation of the qualifying project in
the form and amount satisfactory to the responsible public entity. For the components of the qualifying
project which involve construction, the form and amount of the bonds must comply with s. 255.05.
2. Review of the design for the qualifying project by the responsible public entity and, if the design
conforms to standards acceptable to the responsible public entity, the approval of the responsible public
entity. This subparagraph does not require the private entity to complete the design of the qualifying
project before the execution of the comprehensive agreement.
3. Inspection of the qualifying project by the responsible public entity to ensure that the private
entity's activities are acceptable to the responsible public entity in accordance with the comprehensive
agreement.
4. Maintenance of a policy of public liability insurance, a copy of which must be filed with the
responsible public entity and accompanied by proofs of coverage, or self-insurance, each in the form
and amount satisfactory to the responsible public entity and reasonably sufficient to ensure coverage of
tort liability to the public and employees and to enable the continued operation of the qualifying
project.
5. Monitoring by the responsible public entity of the maintenance practices to be performed by the
private entity to ensure that the qualifying project is properly maintained.
6. Periodic filing by the private entity of the appropriate financial statements that pertain to the
qualifying project.
7. Procedures that govern the rights and responsibilities of the responsible public entity and the
private entity in the course of the construction and operation of the qualifying project and in the event
of the termination of the comprehensive agreement or a material default by the private entity. The
procedures must include conditions that govern the assumption of the duties and responsibilities of the
private entity by an entity that funded, in whole or part, the qualifying project or by the responsible
public entity, and must provide for the transfer or purchase of property or other interests of the private
entity by the responsible public entity.
8. Fees, lease payments, or service payments. In negotiating user fees, the fees must be the same for
persons using the facility under like conditions and must not materially discourage use of the qualifying
project. The execution of the comprehensive agreement or a subsequent amendment is conclusive
evidence that the fees, lease payments, or service payments provided for in the comprehensive
agreement comply with this section. Fees or lease payments established in the comprehensive
agreement as a source of revenue may be in addition to, or in lieu of, service payments.
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9. Duties of the private entity, including the terms and conditions that the responsible public entity
determines serve the public purpose of this section.
(b) The comprehensive agreement may include:
1. An agreement by the responsible public entity to make grants or loans to the private entity from
amounts received from the federal, state, or local government or an agency or instrumentality thereof.
2. A provision under which each entity agrees to provide notice of default and cure rights for the
benefit of the other entity, including, but not limited to, a provision regarding unavoidable delays.
3. A provision that terminates the authority and duties of the private entity under this section and
dedicates the qualifying project to the responsible public entity or, if the qualifying project was initially
dedicated by an affected local jurisdiction, to the affected local jurisdiction for public use.
(8) FEES. —A comprehensive agreement entered into pursuant to this section may authorize the
private entity to impose fees to members of the public for the use of the facility. The following
provisions apply to the comprehensive agreement:
(a) The responsible public entity may develop new facilities or increase capacity in existing facilities
through a comprehensive agreement with a private entity.
(b) The comprehensive agreement must ensure that the facility is properly operated, maintained, or
improved in accordance with standards set forth in the comprehensive agreement.
(c) The responsible public entity may lease existing fee -for -use facilities through a comprehensive
agreement.
(d) Any revenues must be authorized by and applied in the manner set forth in the comprehensive
agreement.
(e) A negotiated portion of revenues from fee -generating uses may be returned to the responsible
public entity over the life of the comprehensive agreement.
(9) FINANCING. —
(a) A private entity may enter into a private -source financing agreement between financing sources
and the private entity. A financing agreement and any liens on the property or facility must be paid in
full at the applicable closing that transfers ownership or operation of the facility to the responsible
public entity at the conclusion of the term of the comprehensive agreement.
(b) The responsible public entity may lend funds to private entities that construct projects containing
facilities that are approved under this section.
(c) The responsible public entity may use innovative finance techniques associated with a public -
private partnership under this section, including, but not limited to, federal loans as provided in Titles 23
and 49 C.F.R., commercial bank loans, and hedges against inflation from commercial banks or other
private sources. In addition, the responsible public entity may provide its own capital or operating
budget to support a qualifying project. The budget may be from any legally permissible funding sources
of the responsible public entity, including the proceeds of debt issuances. A responsible public entity
may use the model financing agreement provided in s. 489.145(6) for its financing of a facility owned by
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Agenda Item #3.
a responsible public entity. A financing agreement may not require the responsible public entity to
indemnify the financing source, subject the responsible public entity's facility to liens in violation of s.
11.066(5), or secure financing of the responsible public entity by a mortgage on, or security interest in,
the real or tangible personal property of the responsible public entity in a manner that could result in
the loss of the fee ownership of the property by the responsible public entity, and any such provision is
void.
(10) POWERS AND DUTIES OF THE PRIVATE ENTITY. —
(a) The private entity shall:
1. Develop or operate the qualifying project in a manner that is acceptable to the responsible public
entity in accordance with the provisions of the comprehensive agreement.
2. Maintain, or provide by contract for the maintenance or improvement of, the qualifying project if
required by the comprehensive agreement.
3. Cooperate with the responsible public entity in making best efforts to establish interconnection
between the qualifying project and any other facility or infrastructure as requested by the responsible
public entity in accordance with the provisions of the comprehensive agreement.
4. Comply with the comprehensive agreement and any lease or service contract.
(b) Each private facility that is constructed pursuant to this section must comply with the requirements
of federal, state, and local laws; state, regional, and local comprehensive plans; the responsible public
entity's rules, procedures, and standards for facilities; and such other conditions that the responsible
public entity determines to be in the public's best interest and that are included in the comprehensive
agreement.
(c) The responsible public entity may provide services to the private entity. An agreement for
maintenance and other services entered into pursuant to this section must provide for full
reimbursement for services rendered for qualifying projects.
(d) A private entity of a qualifying project may provide additional services for the qualifying project to
the public or to other private entities if the provision of additional services does not impair the private
entity's ability to meet its commitments to the responsible public entity pursuant to the comprehensive
agreement.
(11) EXPIRATION OR TERMINATION OF AGREEMENTS. —Upon the expiration or termination of a
comprehensive agreement, the responsible public entity may use revenues from the qualifying project
to pay current operation and maintenance costs of the qualifying project. If the private entity materially
defaults under the comprehensive agreement, the compensation that is otherwise due to the private
entity is payable to satisfy all financial obligations to investors and lenders on the qualifying project in
the same way that is provided in the comprehensive agreement or any other agreement involving the
qualifying project, if the costs of operating and maintaining the qualifying project are paid in the normal
course. Revenues in excess of the costs for operation and maintenance costs may be paid to the
investors and lenders to satisfy payment obligations under their respective agreements. A responsible
public entity may terminate with cause and without prejudice a comprehensive agreement and may
exercise any other rights or remedies that may be available to it in accordance with the provisions of the
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Agenda Item #3.
comprehensive agreement. The full faith and credit of the responsible public entity may not be pledged
to secure the financing of the private entity. The assumption of the development or operation of the
qualifying project does not obligate the responsible public entity to pay any obligation of the private
entity from sources other than revenues from the qualifying project unless stated otherwise in the
comprehensive agreement.
(12) SOVEREIGN IMMUNITY. —This section does not waive the sovereign immunity of a responsible
public entity, an affected local jurisdiction, or an officer or employee thereof with respect to
participation in, or approval of, any part of a qualifying project or its operation, including, but not limited
to, interconnection of the qualifying project with any other infrastructure or project. A county or
municipality in which a qualifying project is located possesses sovereign immunity with respect to the
project, including, but not limited to, its design, construction, and operation.
(13) DEPARTMENT OF MANAGEMENT SERVICES. —
(a) A responsible public entity may provide a copy of its comprehensive agreement to the Department
of Management Services. A responsible public entity must redact any confidential or exempt
information from the copy of the comprehensive agreement before providing it to the Department of
Management Services.
(b) The Department of Management Services may accept and maintain copies of comprehensive
agreements received from responsible public entities for the purpose of sharing comprehensive
agreements with other responsible public entities.
(c) This subsection does not require a responsible public entity to provide a copy of its comprehensive
agreement to the Department of Management Services.
(14) CONSTRUCTION. —
(a) This section shall be liberally construed to effectuate the purposes of this section.
(b) This section shall be construed as cumulative and supplemental to any other authority or power
vested in or exercised by the governing body of a county, municipality, special district, or municipal
hospital or health care system including those contained in acts of the Legislature.
(c) This section does not affect any agreement or existing relationship with a supporting organization
involving such governing body or system in effect as of January 1, 2013.
(d) This section provides an alternative method and does not limit a county, municipality, special
district, or other political subdivision of the state in the procurement or operation of a qualifying project
pursuant to other statutory or constitutional authority.
(e) Except as otherwise provided in this section, this section does not amend existing laws by granting
additional powers to, or further restricting, a local governmental entity from regulating and entering
into cooperative arrangements with the private sector for the planning, construction, or operation of a
facility.
(f) This section does not waive any requirement of s. 287.055.
History.—s. 2, ch. 2013-223; s. 1, ch. 2016-153; s. 1, ch. 2016-154; s. 7, ch. 2022-5.
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Agenda Item #3.
Note. —Former s. 287.05712.
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