Anfield Session Week Report March 16-20
Budget
This week, after receiving allocations from their presiding officers, the House and Senate subcommittees released the “Chairman’s” budget proposals for the upcoming fiscal year. There are significant differences between the chambers with regard to the total funds dedicated to agriculture and natural resource management agencies. With respect to key environmental program and initiatives, the Chair’s allocations are as follows:
Program House Senate
______
Florida Forever/ Land Acquisition$205,000,000$ 22,000,000
Everglades Restoration $100,000,000 $ 79,000,000
Everglades Restoration (Incl. IRL)$ 33,000,000$ 0
Northern Everglades, WQ & Estuaries Projects $ 20,167,551$ 3,000,000
Springs Protection$ 55,215,853$ 50,000,000
Alternative Water Supply$ 50,000,000$ 50,000,000
Drinking Water State Revolving Loan Program $ 95,863,107$ 88,422,307
Wastewater Revolving Loan Program$191,128,531$181,210,531
Small County Wastewater Treatment Grants$ 16,000,000$ 16,000,000
Total Maximum Daily Loads$ 9,385,000$ 9,385,000
DACS “Water Farming” Lake O. Basin$ 7,000,000$ 0
DACS BMP’s Implementation$ 5,500,000$ 1,900,000
DACS Hybrid Wetland Treatment Program$ 6,200,000$ 0
Non-point Source Management$ 17,300,000$ 3,000,000
Keys Wastewater Treatment$ 25,000,000$ 0
Beach Restoration$ 40,000,000$ 25,000,000
Petroleum Tank Clean-up$110,000,000$110,000,000
Dry Cleaning Solvent Clean-up$ 6,500,000$ 6,500,000
Local Water Projects$ 80,589,000$ 0
Transfer to DOT for Trails$ 0 $ 25,000,000
As summarized below, with respect to funds associated with the Land Acquisition and Management Trust Fund (Amendment 1), the chambers took different approaches towards the expenditure of the funds.
AgencyHouse Senate______
Dept. of Agriculture and Consumer Services$125,104,703$ 89,525,015
Department of Environmental Protection$505,316,871$504,006,631
Fish and Wildlife Commission$ 98,975,597$120,662,794
Total$729,397,171$714,154,400
Next week (4th week) both chambers will consider and amend these proposals in the full appropriationscommittees prior to floor action. Once each chamber approves their versions of the State budget they will be in a posture to commence budget conference (reconcile the difference) as soon as the presiding officers agree on allocations within each area of the budget. This is not anticipated to happen until week 7 at the earliest.
Hazardous Walking Conditions (CS/CS/SB 154 & CS/HB 41)
Background:Each district school superintendent is responsible for determining which students require busing directly to & from the school and for making recommendations to the district school board regarding transportation plans and procedures, including the routing and scheduling of school buses. Students in grades 6 and below, students who live more than two miles from the school, or students who face hazardous walking conditions on the way to school must be provided with transportation by the district board.
Under the current definitions in statute, in order for a school route parallel to a road to be classified as a “hazardous walking condition”, it must meet one of the following criteria:
1. Sidewalks or non-road medium parallelto road are less than 4 feet wide, or
2. The road is uncurbed, the posted speed limit is at least 55 miles per hour, and the walking surface is less than three feet from the road surface.
The definitions specifically exclude roads that go through residential areas that have little vehicular traffic (less than 180 vehicles going in either direction) during the hours when students are walking to school, and which have a posted speed limit of 30 MPH or less.
For a route that crosses a busy section of road to be defined as a hazardous walking condition, the total traffic volume must exceed 360 vehicles per hour, per direction, during the opening and closing school hours, and cuts through an “uncontrolled” crossing point, or, the total hourly traffic must exceed 4,000 vehicles per hour and cut through an intersection controlled by a stop sign or traffic light(the exception being crossing lanes that are supervised by a crossing guard or traffic officer during opening and closing school hours.)
Requests for a review of the local walking conditions must be made to the district school super-intendant and performed by a representative of both the school district and the local government. Once the school district and the local government have come to a mutual agreement that a hazardous walking condition exists, the district superintendent may file a report with the Department of Education (DOE) and request that the local government determine whether they will correct the hazardous condition and if so, provide a predetermined completion date.
Proposed Changes: This bill:
- Requires district school boards and other governmental entities to cooperate to identify hazardous walking conditions;
- Requires the entity with jurisdiction over the road to correct the hazardous condition within a reasonable time;
- Requires the entity with jurisdiction over the road to include correction of a hazardous condition in its next annual 5-year capital improvements program or provide a statement of the factors justifying why a correction is not so included;
- Revises the criteria identifying hazardous walking conditions for walkways parallel to the road;
- Creates a new hazardous walking condition category, “crossings over the road”;
- Requires additional parties to participate with the representatives of the school district and entity with jurisdiction over the road in inspecting the walking condition and determining whether it is hazardous;
- Provides the district school board, after notice, may initiate a declaratory judgment proceeding if the local governmental entities cannot agree whether the condition is hazardous; and
- Provides a hazardous walking condition determination may not be used as evidence in a civil action for damages against a governmental entity.
The defined conditions would in turn be amended to be more expansive. For walkways parallel to roads, the exception for roads in residential areas would be removed; the posted speed limit threshold reduced from 55 to 50 miles per hour; and ditches, sluiceways, swales, or channels would no longer be considered walkable surfaces.
Routes through intersections and crossing points that are “uncontrolled” would be considered to have a hazardous walking condition if the road the route crosses has a posted speed limit of 50 or higher; or has six lanes or more (not including turning lanes), regardless of the speed limit.
Requests to identify a hazardous walking condition must be made to the school superintendent and the superintendent in turn must request a review of the school district’s walking conditions be made jointly with the proper local government agency (for municipal roads, the municipal police department; for county roads, the sheriff’s department; for state roads, the DOT). Upon completion of the review, it is ultimately up to local government entity to report in writing their determination to both the DOE and the school, regardless of whether they are in mutual agreement. If they are not, the local government must give specific reasons why they have determined no hazardous walking condition exists or why removal of the condition is not possible. Subsequently, the superintendent must provide a report and recommendation to the district school board regarding the lack ofconsensus.
Under these circumstances, the bill authorizes a district school board to initiate a proceeding under ch. 86, F.S., in order to obtain a declaratory judgment as to whether the condition at issue is indeed hazardous. If it is found that a hazardous walking condition exists, the superintendent must report the finding to DOE and formally request correction of the hazardous condition. Such formal process does not currently exist in statute.
In response to a request, the local government would be required to submit a position statement informing the superintendent whether the correction will be included in its next annual 5-year transportation work program and when the correction will be completed. Again, if it refuses to include correction of the condition in its five-year plan, it must provide a written statement explaining why to both the school district and the DOE.
Last, the bill adds a new provision which provides that designation of a hazardous walking condition is not admissible as evidence in a civil action for damages brought against a governmental entity under s. 768.28, F.S., relating to waiver of sovereign immunity.
Update: On Monday, the (S) Appropriations Subcommittee on Education passed CS/CS/SB 154without amendment. It will next be heard in (S) Appropriations, the Senate bill’s last committee of reference. CS/HB 41 is currently in the (H) Education Appropriations Subcommittee.
Civil Liability for Farmers (SB 158 & HB 137)
Background: It is common practice by farmers to open up their lands to visitors after commercial harvesting is completed in order to pick any remaining excess crops not yet harvested, a process known as “gleaning.” This may be done as part of an agritourism attraction or as a charitable gesture toward needy families in the area. During such gleaning seasons, the farmer is exempt from liability for any injuries or deaths to visitors resulting from a known hazardous condition of which that the farmer has provided adequate warning. This exemption does not extend to instances of gross negligence or intentional acts.
Proposed Changes: This bill extends the civil liability exemption a bit further. It provides that a farmer is exempt from liability so long as they do not fail to warn their visitors of a hazardous condition on their land that they are aware of or in cases where the condition would be obvious enough to a visitor upon entering the farmer’s land. (Note: Under the House version, such conditions would include the condition of the crops being picked)
It also expands the timeframe of the exemption from just after harvest to being year round.
Farmers would still be liable for any gross negligence or intentional acts on their own part.
Update: On Tuesday, the (H) Civil Justice Subcommittee passed HB 137 without amendment. Its next committee stop is the (H) Agriculture & Natural Resources Subcommittee. SB 158 wasrolled to Third Reading in the Senate on Wednesday.
Public-Private Partnerships (SB 824 & CS/HB 63)
Overview: Public-private partnerships (sometimes referred to as P3s) are contractual arrangements between a responsible public entity and a private entity for the purpose of carrying out public projects. Current law authorizes P3s for specified public purpose projects if the responsible public entity determines that the project is in the public’s best interest, that there is a need for or benefit derived from the project, the estimated cost of the project is reasonable, and the private entity’s plans will result in the timely acquisition, design, construction, improvement, renovation, expansion, equipping, maintenance, or operation of the qualifying project.
In 2013, the Public-Private Partnerships Task Force was convened for the purpose of establishing guidelines for the Legislature to develop a uniform process for establishing public-private partnerships, including the types of factors public entities should review and consider when processing requests for public-private partnership projects. In 2014, the Task Force issued its final report and a list of recommendations.
This bill incorporates many of the Task Force’s recommendations and touches on various issues that have bearing on the P3 process.
Definition of “Responsible Public Entity”
Background: The current definition in statute for “responsible public entity” includes the following: counties, municipalities, school boards, or “any other political subdivision of the state, public body corporate and politic, or regional body that serves a public purpose and is authorized to develop or operate a qualifying project.”
Proposed Changes: This bill would add school districts, special districts, state universities, or any Florida College System institution to the list of public entities covered under that definition.
Application Fees & Unsolicited Proposals
Background: While public entities may receive unsolicited proposals for public projects, they are also allowed under current law to charge a fee for receiving these proposals. The fee is meant to cover the cost of evaluating the proposal and therefore must be reasonable and sufficient toward that end.
Proposed Changes: This bill would make it a requirement for vendors who submit an unsolicited proposal to pay any evaluation fees in cash, cashier’s check, or other non-cancelable instrument. Personal checks would no longer be accepted. If the original payment does not fully cover the cost of evaluation, the public entity would need to inform the vendor of this and the vendor in turn would be required to make additional payment within 30 days. Should they not do this, the public entity may suspend their evaluation. However, should the public entity decide not to evaluate the unsolicited proposal, they would also have to refund the original application fee to the private vendor.
The bill would also remove provisions allowing public entities to hire outside consultants in the evaluation process.
Last, any pricing terms and financial terms included in the unsolicited proposal must be specific as to when the pricing or terms expire.
Notice to Affected Jurisdictions & Solicitation Timeframes:
Background: Whenever a public entity receives an unsolicited proposal, or wishes to solicit a proposal, they must publish notice of this in the Florida Administrative Register (FAR) and a newspaper of general circulation. They then have between 21 and 120 days to review the proposal and any counter-proposals submitted by other vendors.
Local jurisdictions affected by the qualifying project must also be notified and receive a copy of the proposal, and those which are not responsible for the project have 60 days in which to register their concerns as to the project’s compatibility with any local comprehensive plans, infrastructure development plans, or developments of regional impact plans.
Proposed Changes: This bill would allow a public entity, by majority vote of its governing board, to alter the evaluation timeframe if an alternative timeframe would more adequately serve the needs of the qualifying project. It also removes the requirement that affected jurisdictions not responsible for the qualifying project be notified, although the responsible public entity would still have to submit a copy of the notice published in FAR concerning solicitations for qualifying projects in their area.
Comprehensive Agreements & Financing Agreement
Background: In order to enter into a public-private partnership, a comprehensive agreement must be developed between the private and public entity. The agreement must ensure that the project will be cost effective, is in the public interest, and that the project will be conveyed to the public entity’s ownership upon completion or termination of the agreement.
Financing for the project may be secured by the public entity via traditional methods (commercial bank loans, federal bank loans, hedge funds, etc.), however, no financing agreement entered into between a public entity and a funding source is allowed to require that the public entity pledge security interest against their lien on the project.
Proposed Changes: This bill would add the requirement that ownership of the public project be conveyed to the public entity on expiration of the comprehensive agreement, not just its completion or termination. A copy of the comprehensive agreement may be provided to the Department of Management Services (DMS) after all confidential and exempt information has been redacted for the purpose of sharing it with other responsible public entities, however this is not requirement.
The bill also further clarifies that any financing agreement with a funding source must not require the responsible public entity to secure financing 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.
Finally, this bill deletes the provisions creating the Public-Private Partnership Task Force, as it has already fulfilled its task and is now obsolete.
Update: On Tuesday, the (S) Community Affairs Committee passed SB 824 after adopting one late-filed amendment. The late-filed amendment adds a provision that would require a public entity that solicits proposals to also include a design criteria package along with the solicitation. The criteria package must specify performance-based criteria for the project, including a legal description of the site, with survey information; interior space requirements; material quality standards; schematic layouts and conceptual design criteria, with budget estimates; design and construction schedules; and site and utility requirements. The criteria package must be prepared by an engineer or architectlicensed in the state of Florida.
CS/SB 824 will next be taken up in the (S) Governmental Oversight & Accountability Committee. CS/HB 65 is currently in the (H) Local Government Affairs Subcommittee.
Public Records & Public Meetings/Pubic-Private Partnerships (SB 826 & CS/HB 65)
Background: Public-private partnerships (sometimes referred to as P3s) are contractual arrangements between a responsible public entity and a private entity for the purpose of carrying out public projects. Under state law, public entities may receive unsolicited proposals from private entities for certain projects or solicit for bids themselves. Should a public entity agree to consider entering into a P3 partnership with a private entity that has submitted an unsolicited proposal, they must post a public notice of this agreement and a notice that they are open to competing proposals in the Florida Administrative Register (FAR), as well as in a newspaper of general circulation at least once a week for two weeks.
Under Florida’s Sunshine Law and Article 1, sec. 24(a) of the Florida Constitution, meetings in which official actions are taken must be open to the public, and the affected public must be given reasonable advance notice of the meeting. Meetings in which competing bids are discussed are not specifically exempt from these requirements. However, there is a limited exception for those meetings that involve the vendor themselves making a presentation regarding their bid. In such circumstances a complete recording of the meeting must still be made.
There is also no exemption from the details of unsolicited bids being posted publicly, except in cases where such bids, proposal, or replies are “sealed” (in order to protect trade and business secrets), in which case they are exempt from public record for a period of 30 days after the bid is opened or until the public agency makes a decision, whichever comes sooner. Should the public agency reject all bids, but make known its intention to resume the bidding process sometime in the near future, the bids would remain exempt until such time as the public entity makes its final decision to either fully reject the bid or accept. In either case, this period cannot be more than 12 months after the initial rejection of all bids. These same time-based exemptions apply to any records made or presented at those meetings in which bid proposals are discussed.