Bill Text: MS HB896 | 2012 | Regular Session | Introduced

Mississippi House Bill 896 (Prior Session Legislation)

Introduced

Bill Title: Wind Farms; authorize Secretary of State to lease or rent certain state lands for establishment of for power generation.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Failed) 2012-03-06 - Died In Committee [HB896 Detail]

Download: Mississippi-2012-HB896-Introduced.html

MISSISSIPPI LEGISLATURE

2012 Regular Session

To: Public Property

By: Representative Weathersby

House Bill 896

AN ACT TO AMEND SECTION 29-1-107, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE SECRETARY OF STATE TO LEASE OR RENT ANY AVAILABLE STATE PRISON LANDS FOR THE PURPOSE OF ESTABLISHING WIND FARMS FOR WIND POWER GENERATION PROJECTS; TO PRESCRIBE THE TERMS OF THE LEASES AND THE DISTRIBUTION OF FUNDS RECEIVED FOR SUCH LEASES; TO AMEND SECTION 47-5-66, MISSISSIPPI CODE OF 1972, IN CONFORMITY TO THE PRECEDING PROVISIONS; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 29-1-107, Mississippi Code of 1972, is amended as follows:

29-1-107. (1) The Secretary of State with the approval of the Governor shall, as far as practicable, rent or lease all lands belonging to the state, except as otherwise provided by law for a period of not exceeding one (1) year, and account for the rents therefrom in the same manner as money received from the sale of state lands, provided that no state land shall be rented or leased to individuals, corporations, partnerships, or association of persons for hunting or fishing purposes. Property belonging to the state in municipalities, even though it may have been subdivided into lots, blocks, divisions, or otherwise escheated or was sold to the state by such description, may likewise be leased or rented by the Secretary of State under the terms provided above for other state lands, and the rents accounted for in the same manner. The state shall have all the liens, rights and remedies accorded to landlords in Sections 89-7-1 through 89-7-125; said leases and rental contracts shall automatically terminate on the date provided in said leases or contracts.

(2) (a) The Secretary of State, with the approval of the Governor, may rent or lease surface lands, tidelands or submerged lands owned or controlled by the State of Mississippi lying in or adjacent to the Mississippi Sound or Gulf of Mexico or streams emptying therein, for a period not exceeding forty (40) years for rental payable to the state annually. However, the term of any lease of state public trust tidelands to a person possessing a license under the Mississippi Gaming Control Act shall be governed by the provisions of subsection (4) of this section.

(b) The lessee under such agreement may construct such necessary items for marking channels, docking, wharfing, mooring or fleeting vessels which shall be in aid of navigation and not obstructions thereto.

(c) A lessee of record may be given the option to renew for an additional period not to exceed twenty-five (25) years; however, the term of a renewal for a lease of state public trust tidelands to a person possessing a gaming license under the Mississippi Gaming Control Act shall be governed by the provisions of subsection (4) of this section. The holder of a lease of Public Trust Tidelands, at the expiration thereof, shall have a prior right, exclusive of all other persons, to re-lease as may be agreed upon between the holder of the lease and the Secretary of State.

(d) Leases shall provide for review and rent adjustments at each fifth anniversary tied either to the All Urban Consumer Price Index-All Items (CPI) or to an appraisal which deducts the value of any improvements by the lessee which substantially enhance the value of the land. In the case where the initial rental was based on the value set by the ad valorem tax rolls, then the rent review and adjustment clause shall be likewise based on the value set by such tax rolls. In the event that the lessor and lessee cannot agree on a rental amount, the lease may be cancelled at the option of the lessor. The lessee shall, within thirty (30) days after execution of a sublease or assignment, file a copy thereof, including the total consideration therefor, with the Secretary of State. This paragraph shall not apply to a lease of state public trust tidelands or submerged lands to a person possessing a gaming license under the Mississippi Gaming Control Act who operates a gaming establishment on such tidelands.

(3) Provided, however, the current occupants of public trust tidelands that were developed after the determinable mean high-water line nearest the effective date of the Coastal Wetlands Protection Law shall pay an annual rental based on the fair market value as determined by the assessed valuation of the property. The holder of a lease of Public Trust Tidelands, at the expiration thereof, shall have a prior right, exclusive of all other persons, to re-lease as may be agreed upon between the holder of the lease and the Secretary of State.

(4) (a) This subsection shall apply to any person possessing a license under the Mississippi Gaming Control Act who operates a gaming establishment in any of the three (3) most southern counties of the state.

(b) The following shall apply to all leases of state public trust tidelands executed by such a licensee:

(i) Every lease executed after August 29, 2005, shall be for a period of thirty (30) years for rental payable to the state annually.

(ii) By operation of this section, any lease executed before August 29, 2005, may, at the option of the lessee, either remain at the term stated in the original execution of the lease or be converted to a thirty-year term lease, beginning on such date after August 29, 2005, that the lessee either resumes or begins permanent gaming activities as approved by the Mississippi Gaming Commission, and the lessee shall be required to comply with all other provisions of the lease. Should the lessee choose to operate in a structure that is not on state public trust tidelands and that is on property contiguous to tidelands leased by the lessee, the lessee shall be required to comply with all other provisions of the lease and shall be exempt from the assessment provided for in paragraph (c) of this subsection. Easements for and rights-of-way for public streets and highways shall not be construed to interrupt the contiguous nature of a parcel of property. In the event that a lessee does not elect either to remain bound by the original term of the lease or to convert the lease to a thirty-year term, the Secretary of State may lease the state public trust tidelands that are the subject of the lease to any other person or entity.

(iii) Leases shall provide for review and rent adjustments at each annual anniversary tied to the All Urban Consumer Price Index-All Items (CPI). In the case of the renewal of a lease after the expiration of the original thirty-year term under this subsection, each renewal shall be for a term of thirty (30) years. The base rate to which the CPI shall apply for purposes of executing the subsequent lease shall be negotiated by the lessee with the Secretary of State.

(c) (i) Except as otherwise provided in this paragraph, any person possessing a license under the Mississippi Gaming Control Act who does not lease public trust tidelands from the state or any of its political subdivisions, and who operates a gaming establishment in any of the three (3) most southern counties of the state, shall pay an annual in-lieu tidelands assessment to the Public Trust Tidelands Assessments Fund (hereinafter referred to as "fund") created in Section 29-15-10, in the amount and manner provided for in this paragraph.

For calendar year 2006, the annual in-lieu tidelands assessment paid by the licensee to the fund shall be:

1. Four Hundred Thousand Dollars ($400,000.00), if the capital investment in the part of the structure in which licensed gaming activities are conducted is Fifty Million Dollars ($50,000,000.00) or less.

2. Four Hundred Fifty Thousand Dollars ($450,000.00), if the capital investment in the part of the structure in which licensed gaming activities are conducted is equal to or more than Fifty Million Dollars ($50,000,000.00) but less than Sixty Million Dollars ($60,000,000.00).

3. Five Hundred Thousand Dollars ($500,000.00), if the capital investment in the part of the structure in which licensed gaming activities are conducted is equal to or more than Sixty Million Dollars ($60,000,000.00) but less than Seventy-five Million Dollars ($75,000,000.00).

4. Six Hundred Thousand Dollars ($600,000.00), if the capital investment in the part of the structure in which licensed gaming activities are conducted is equal to or more than Seventy-five Million Dollars ($75,000,000.00) but less than One Hundred Million Dollars ($100,000,000.00).

5. Seven Hundred Thousand Dollars ($700,000.00), if the capital investment in the part of the structure in which licensed gaming activities are conducted is equal to or more than One Hundred Million Dollars ($100,000,000.00) but less than One Hundred Twenty-five Million Dollars ($125,000,000.00).

6. Seven Hundred Fifty Thousand Dollars ($750,000.00), if the capital investment in the part of the structure in which licensed gaming activities are conducted is equal to or more than One Hundred Twenty-five Million Dollars ($125,000,000.00).

For each calendar year thereafter, the Secretary of State shall review and adjust the value of the capital investment and the annual in-lieu tidelands assessment due. Such review and adjustment shall be tied to the CPI.

(ii) This paragraph shall not apply to a gaming licensee if the licensee conducts gaming in a structure that is located on property that is leased from the Mississippi State Port at Gulfport or any political subdivision of the state, or to a licensee who conducts gaming in a structure that is located on property that is leased to the licensee jointly by the State of Mississippi and the City of Biloxi; however, with regard to property owned by a political subdivision of the state, this exception shall only apply to property owned by the political subdivision on August 29, 2005, if legal gaming could have been conducted on such property on that date.

(iii) This paragraph shall not apply to a gaming licensee if the licensee conducts gaming in a structure that is located on property that is not leased from the State of Mississippi and/or a political subdivision of the State of Mississippi and is not on state public trust tidelands, and if the licensee conducted gaming on that property before August 29, 2005.

(5) (a) The Secretary of State, with the approval of the Governor, may rent or lease any available state prison lands for wind power generation projects. The Secretary of State is authorized to negotiate all aspects of such leases and to make any ancillary agreements as may be reasonably necessary to ensure a fair and equitable return to the state.

(b) The primary term and any renewal term of said lease combined shall not exceed fifty (50) years.

(c) Any lease, whether a new lease or renewal lease, executed under this section shall contain provisions for the periodic adjustment of rentals throughout the term of the lease. Leases may provide for a base rent, bonus, percentage of income, royalty or any combination thereof, along with other methods deemed necessary and reasonably calculated to maintain a fair and equitable return to the state throughout the term of any lease or renewal.

(d) (i) Any lease or renewal lease executed pursuant to this act shall contain such other terms and provisions as the Secretary of State, in his discretion, deems practical and necessary to protect the leased land and the interests of the state. The land may be leased for other uses prescribed in Section 47-5-66 and for wind power general projects simultaneously, provided that the leases entered into for uses authorized under Section 47-5-66, shall be negotiated by the Department of Finance and Administration in the manner prescribed in that section.

(ii) If a lease is entered into for the purpose of a wind power generation project, appropriate lease terms shall be included to provide for the mutual accommodation and protection of the respective rights of the holders of the lease for any other uses and for the wind power generation project lease.

(e) Oil, gas and mineral rights in the leased land shall be reserved to the State of Mississippi, and no provision of any lease may provide otherwise.

(f) Nothing in this subsection shall be construed to authorize the sale or transfer of title to any state prison lands leased for wind power generation projects.

(g) Any monies derived from leasing lands under this subsection shall be deposited to the General Fund except where the Legislature has designated monies derived from leasing specific state prison lands to be deposited in a special fund. The Secretary of State is authorized to charge fees and expenses, not to exceed costs, incurred in administering this act and leases executed hereunder. Where monies derived from leasing have been designated to be paid into a special fund, the agency having charge of the special fund is authorized to pay to the Secretary of State those fees and expenses from the special fund.

SECTION 2. Section 47-5-66, Mississippi Code of 1972, is amended as follows:

47-5-66. (1) Except as provided in Section 29-1-107, it shall be the duty of the Department of Finance and Administration, with the approval of the Public Procurement Review Board, to lease lands at public contract upon the submission of two (2) or more sealed bids to the Department of Finance and Administration after having advertised the land for rent in newspapers of general circulation published in Jackson, Mississippi; Memphis, Tennessee; the county in which the land is located; and contiguous counties for a period of not less than two (2) successive weeks. The first publication shall be made not less than ten (10) days before the date of the public contract, and the last publication shall be made not more than seven (7) days before that date. The Department of Finance and Administration may reject any and all bids. If all bids on a tract or parcel of land are rejected, the Department of Finance and Administration may then advertise for new bids on that tract or parcel of land. Successful bidders shall take possession of their leaseholds at the time authorized by the Department of Finance and Administration. However, rent shall be due no later than the day upon which the lessee shall assume possession of the leasehold, and shall be due on the anniversary date for each following year of the lease. The Department of Finance and Administration may provide in any lease that rent shall be paid in full in advance or paid in installments, as may be necessary or appropriate. In addition, the Department of Finance and Administration may accept, and the lease may provide for, assignments of federal, state or other agricultural support payments, growing crops or the proceeds from the sale thereof, promissory notes, or any other good and valuable consideration offered by any lessee to meet the rent requirements of the lease. If a promissory note is offered by a lessee, it shall be secured by a first lien on the crop of the lessee, or the proceeds from the sale thereof. The lien shall be filed pursuant to Article 9 of the Uniform Commercial Code and Section 1324 of the Food Security Act of 1985, as enacted or amended. If the note is not paid at maturity, it shall bear interest at the rate provided for judgments and decrees in Section 75-17-7 from its maturity date until the note is paid. The note shall provide for the payment of all costs of collection and reasonable attorney's fees if default is made in the payment of the note. The payment of rent by promissory note or any means other than cash in advance shall be subject to the approval of the Public Procurement Review Board, which shall place the approval of record in the minutes of the board. There is created a special fund to be designated as the "Prison Agricultural Enterprises Fund." Any monies in hand or due from the leasing of Penitentiary lands, except those lands leased under Section 29-1-107, and the sales of timber as provided in Section 47-5-56 and earmarked for the Prison Industries Fund shall be deposited to the special fund for prison agricultural enterprises. All monies in each fiscal year derived from the leasing of the Penitentiary lands, except those lands leased under Section 29-1-107, and the sales of timber as provided in Section 47-5-56 shall be deposited into the special fund for the purpose of conducting, operating and managing the prison agricultural enterprises of the department. All profits derived from the prison agricultural enterprises shall be deposited into the Prison Agricultural Enterprises Fund. All profits derived from prison industries shall be placed in a special fund in the State Treasury to be known as the "Prison Industries Fund," to be appropriated each year by the Legislature to the nonprofit corporation, which is required to be organized under the provisions of Section 47-5-535, for the purpose of operating and managing the prison industries. The state shall have the rights and remedies for the security and collection of the rents given by law to landlords. Lands leased for agricultural purposes under Section 47-5-64 shall be subject to a fee-in-lieu of ad valorem taxes, including taxes levied for school purposes. The fee-in-lieu shall be Nine Dollars ($9.00) per acre. Upon the execution of the agricultural leases to private entities as authorized by Section 47-5-64, the Department of Finance and Administration shall collect the in lieu fee and shall forward the fees to the tax collector in which the land is located. The tax collector shall disburse the fees to the appropriate county or municipal governing authority on a pro rata basis. The sum apportioned to a school district shall not be less than the school district's pro rata share based upon the proportion that the millage imposed for the school district by the appropriate levying authority bears to the millage imposed by the levying authority for all other county or municipal purposes. Any funds obtained by the corporation as a result of sale of goods and services manufactured and provided by it shall be accounted for separate and apart from any funds received by the corporation through appropriation from the State Legislature. All nonappropriated funds generated by the corporation shall not be subject to appropriation by the State Legislature.

Any land leased, as provided in this section, shall not be leased for an amount less than would be received if such land were to be leased under any federal loan program. In addition, all leases shall be subject to the final approval of the Public Procurement Review Board before such leases are to become effective.

For purposes of this section, the term "agricultural enterprises" does not include wind farms developed for purposes of wind power generation projects.

(2) This section shall be repealed from and after July 1, 2014.

SECTION 3. This act shall take effect and be in force from and after July 1, 2012.