Bill Text: MS SB2458 | 2019 | Regular Session | Introduced
Bill Title: Mississippi Municipal Public-Private Partnership Act; enact.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Failed) 2019-02-05 - Died In Committee [SB2458 Detail]
Download: Mississippi-2019-SB2458-Introduced.html
MISSISSIPPI LEGISLATURE
2019 Regular Session
To: Finance
By: Senator(s) Carter, Gollott
Senate Bill 2458
AN ACT TO CREATE NEW SECTION 31-33-1, MISSISSIPPI CODE OF 1972, TO DESIGNATE A NEW CHAPTER OF LAW AS THE "MISSISSIPPI PUBLIC-PRIVATE PARTNERSHIP ACT OF 2019"; TO CREATE NEW SECTION 31-33-3, MISSISSIPPI CODE OF 1972, TO SPECIFY THE INTENT OF THE LEGISLATURE REGARDING PUBLIC-PRIVATE PARTNERSHIPS; TO CREATE NEW SECTION 31-33-5, MISSISSIPPI CODE OF 1972, TO PROVIDE CERTAIN DEFINITIONS; TO CREATE NEW SECTION 31-33-7, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE MISSISSIPPI DEVELOPMENT AUTHORITY TO REVIEW AND APPROVE PUBLIC-PRIVATE PARTNERSHIP AGREEMENTS AND TO CREATE GUIDELINES TO GOVERN SUCH AGREEMENTS; TO CREATE NEW SECTION 31-33-9, MISSISSIPPI CODE OF 1972, TO AUTHORIZE RESPONSIBLE PUBLIC ENTITIES TO ENTER INTO CERTAIN AGREEMENTS TO DEVELOP QUALIFYING PROJECTS; TO CREATE NEW SECTION 31-33-11, MISSISSIPPI CODE OF 1972, TO PROVIDE HOW A RESPONSIBLE PUBLIC ENTITY REQUESTS, RECEIVES AND RESPONDS TO PROPOSALS FOR QUALIFYING PROJECTS; TO CREATE NEW SECTION 31-33-13, MISSISSIPPI CODE OF 1972, TO REQUIRE THE CHIEF EXECUTIVE OF A RESPONSIBLE PUBLIC ENTITY TO MAKE A FINDING OF PUBLIC INTEREST BEFORE ENTERING INTO A PARTNERSHIP AGREEMENT; TO CREATE NEW SECTION 31-33-15, MISSISSIPPI CODE OF 1972, TO REQUIRE NOTICE OF PROPOSED PROJECTS BE GIVEN TO AFFECTED JURISDICTIONS; TO CREATE NEW SECTION 31-33-17, MISSISSIPPI CODE OF 1972, TO AUTHORIZE RESPONSIBLE PUBLIC ENTITIES AND PRIVATE PARTNERS TO ENTER INTO INTERIM AGREEMENTS; TO CREATE NEW SECTION 31-33-19, MISSISSIPPI CODE OF 1972, TO SPECIFY THE PROJECT DELIVERY METHODS THAT A RESPONSIBLE PUBLIC ENTITY MAY UTILIZE; TO CREATE NEW SECTION 31-33-21, MISSISSIPPI CODE OF 1972, TO SPECIFY HOW A QUALIFYING PROJECT MAY BE FINANCED; TO CREATE NEW SECTION 31-33-23, MISSISSIPPI CODE OF 1972, TO REQUIRE PUBLIC-PRIVATE PARTNERSHIP AGREEMENTS TO BE VALIDATED IN THE SAME MANNER AS BONDS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The following shall be codified as Section 31-33-1, Mississippi Code of 1972:
31-33-1. This chapter shall be known and may be cited as the "Mississippi Municipal Public-Private Partnership Act."
SECTION 2. The following shall be codified as Section 31-33-3, Mississippi Code of 1972:
31-33-3. By enacting this chapter, it is the intent of the Legislature to encourage public-private partnerships to:
(a) Promote the development and operation of quality infrastructure projects that provide economic and social value;
(b) Provide a well-defined mechanism to facilitate collaboration between responsible public entities and private partners in infrastructure development and operation and enable increased investment of private capital;
(c) Promote innovation with respect to the delivery and financing of public projects;
(d) Provide flexibility in contracting and delivering infrastructure projects;
(e) Reduce total life-cycle costs of public infrastructure; and
(f) Allow for cost and risk sharing between responsible public entities and private partners.
SECTION 3. The following shall be codified as Section 31-33-5, Mississippi Code of 1972:
31-33-5. As used in this chapter, the following terms shall have the meanings ascribed unless the context clearly indicates otherwise:
(a) "Affected jurisdiction" means any county, municipality, city, town or special district in which all or a portion of the qualifying project is located.
(b) "Concession" means any lease, license, franchise, easement, or other binding agreement transferring from a responsible public entity to a private partner rights for the use or control, in whole or in part, of a qualifying project for a definite term during which the private partner will provide services in return for the right to receive all or a portion of the revenues of the qualifying project.
(c) "Design-build agreement" means a contract between a responsible public entity and a private partner that combines the design and construction phases of a qualifying project into a single contract and wherein the private partner is required to satisfactorily perform, at a minimum, the design and construction of the qualifying project.
(d) "Design-build-finance agreement" means a contract between a responsible public entity and a private partner that combines the design, construction and financing phases of a qualifying project into a single contract and wherein the private partner is required to satisfactorily perform, at a minimum, the design, construction and financing of the qualifying project.
(e) "Design-build-finance-operate agreement" means a contract between a responsible public entity and a private partner that combines the design, construction, financing and operation phases of a qualifying project into a single contract and wherein the private partner is required to satisfactorily perform, at a minimum, the design, construction, financing and operation of the qualifying project.
(f) "Design-build-finance-operate-maintain agreement" means a contract between a responsible public entity and a private partner that combines the design, construction, financing, operation and maintenance phases of a qualifying project into a single contract and wherein the private partner is required to satisfactorily perform, at a minimum, the design, construction, financing, operation and maintenance of the qualifying project.
(g) "Design-build-operate-maintain agreement" means a contract between a responsible public entity and a private partner that combines the design, construction, operation and maintenance phases of a qualifying project into a single contract and wherein the private partner is required to satisfactorily perform, at a minimum, the design, construction, operation and maintenance of the qualifying project.
(h) "Design-build-maintain agreement" means a contract between a responsible public entity and a private partner that combines the design and construction phases of a qualifying project into a single contract and wherein the private partner is required to satisfactorily perform, at a minimum, the design, construction and maintenance of the qualifying project.
(i) "Develop" means to plan, design, develop, improve, equip, modify, repair, operate, maintain, finance, lease, acquire, install, construct and/or expand a qualifying project.
(j) "Eligible costs" means, to the extent determined by the responsible public entity, a percentage of the estimated costs incurred by a private partner, not to exceed fifty percent (50%), in responding to a request for proposals issued by a responsible public entity pursuant to this chapter.
(k) "Fees" means rates, tolls, fees or other charges imposed by the private partner or responsible public entity for use of all or a portion of a qualifying project pursuant to a public-private partnership agreement.
(l) "Interim agreement" means an agreement between a private partner and a responsible public entity concerning the terms discussed in Section 31-33-17.
(m) "Material default" means, to the extent provided in a public-private partnership agreement, any default by a private partner in the performance of its duties as outlined in such public-private partnership agreement which is not remedied following notice and a reasonable cure period.
(n) "Operate-maintain agreement" means a contract between a responsible public entity and a private partner that combines the operation and maintenance phases of a qualifying project into a single contract and wherein the private partner is required to satisfactorily perform, at a minimum, the operation and maintenance of the qualifying project.
(o) "Private partner" means any natural person, corporation, general partnership, limited liability company, limited partnership, joint venture, business trust, public benefit corporation, nonprofit entity, other private business entity or any combination thereof.
(p) "Proposal" means a plan to develop a qualifying project submitted by a private partner with detail beyond a conceptual level for which all terms determined to be necessary by the responsible public entity are defined, including, without limitation, but depending on any delivery methods set forth in Section 31-33-19.
(q) "State" means the State of Mississippi.
SECTION 4. The following shall be codified as Section 31-33-7, Mississippi Code of 1972:
31-33-7. (1) The Mississippi Development Authority shall: (a) Promulgate guidelines by July 1, 2019, or as soon as practicable, following a period of public review, setting forth a uniform process for the review, solicitation, evaluation, award, and delivery of public-private partnership agreements, including timeframes and requirements for public outreach prior to entering into a public-private partnership agreement on a selected proposal. The timeframes and requirements shall provide for a reasonable period of public review and comment;
(b) Make any recommendations to the Legislature and the Governor on any amendments to this chapter deemed helpful to carry out the purposes of this chapter;
(c) Make any recommendations to the departments and agencies of the state concerning any amendments to the regulations of each respective agency deemed necessary to carry out the purposes of this chapter;
(d) Review all public-private partnership agreements authorized by this chapter;
(e) Render any necessary advice to responsible public entities in order to accomplish the purposes of this chapter; and
(f) Retain and exercise approval power over all public-private partnership agreements prior to the responsible public entity executing a public-private partnership agreement.
(2) All responsible public entities shall follow the final guidelines of the Mississippi Development Authority with regard to any public-private partnership agreement subject to this chapter, however, a responsible public entity may also adopt supplemental guidelines for public-private partnerships other than those described in this section so long as such guidelines are supplemental to and not inconsistent with this chapter.
(3) The responsible public entity must assess, through a standardized screening process, as outlined in the guidelines adopted by the Mississippi Development Authority, whether a public-private partnership for a qualified project may provide a greater value added than traditional procurement.
SECTION 5. The following shall be codified as Section 31-33-9, Mississippi Code of 1972:
31-33-9. The responsible public entity may, either separately or in combination with any other public entities, enter into working agreements, coordination agreements, or similar implementation agreements, including the formation of bi-state or multistate organizations, to develop or operate a qualifying project subject to the requirements of this chapter. These agreements must conform to any relevant state laws.
SECTION 6. The following shall be codified as Section 31-33-11, Mississippi Code of 1972:
31-33-11. (1) The responsible public entity may request proposals from private partners for the development of a qualifying project under one or more of the project delivery methods described in Section 31-33-19. Private partners who respond to requests for proposals from responsible public entities but whom are not selected to perform the services described in such request may be recompensed for eligible costs incurred as part of the response to proposal process, but only to the extent provided in the request for proposal issued by the responsible public entity.
(2) Upon submitting a proposal, a private partner shall identify those portions of a proposal that the private partner considers to be a trade secret or confidential commercial, financial, or proprietary information and provide any justification as to why these materials, upon request, should not be disclosed by the responsible public entity. A private partner shall fully comply with any applicable state laws for such materials to be exempt from disclosure. Patent information will be exempt from disclosure until the patent expires. Records of negotiation are exempt from disclosure under the Mississippi Public Records Act of 1983. Other information such as originality of design may only be protected under this section until a public-private partnership agreement is reached. Projects under federal jurisdiction or using federal funds must conform to federal regulations under the Freedom of Information Act. Subject to the foregoing requirements, the related responsible public entity shall determine what is exempt from disclosure and shall otherwise comply with the Mississippi Public Records Act of 1983.
(3) For any selected proposal for a qualifying project, the responsible public entity shall obtain an independent audit of the proposed private-public partnership, including an assessment of projected usage and public costs, before the public-private partnership agreement is executed. The analysis shall be disclosed to the public prior to execution of a public-private partnership agreement.
(4) The responsible public entity may apply for local, state or federal credit or financial assistance or endorse such applications submitted by private partners to develop any qualifying project pursuant to a public-private partnership agreement.
(5) Professionals, consultants and experts, including, without limitation, accountants, architects, attorneys, engineers and financial advisors, may be engaged by a responsible public entity at any point to assist in the evaluation, negotiation and development of qualifying projects.
(6) After the responsible public entity makes a determination of a qualifying project as provided in subsection (1) of this section, the responsible public entity shall:
(a) Seek competing private partners for the qualifying project by issuing a request for qualifications for not less than ninety (90) days.
(b) Review all qualifications submitted in response to such request for qualifications based on the criteria established in such request for qualifications.
(c) If exactly one (1) private partner responds to the request for qualifications and such private partner meets the criteria defined in such request for qualifications, the responsible public entity may: (i) begin negotiations with such private partner to enter into a public-private partnership agreement and submit a request for proposals to such private partner under the processes and procedures described in this chapter; (ii) reject the private-partner applicant and re-submit its request for qualifications; or (iii) cancel its request for qualifications and reject all private-partner applicants.
(d) If more than one (1) private partner submits qualifications meeting the criteria defined in such request for qualifications, the responsible public entity shall seek competing proposals for the qualifying project by issuing a request for proposals for not less than sixty (60) days. Thereafter, the responsible public entity shall review all proposals submitted in response to such request for competing proposals based on the criteria established in such request for competing proposals.
(7) When the time for receiving proposals expires, the responsible public entity shall first rank the proposals in accordance with the factors set forth in the request for proposals. The responsible public entity shall not be required to select the proposal with the lowest price offer, but it may consider price as one (1) of various factors in evaluating the proposals received in response to the request for proposals for a qualifying project. Factors that may be considered include:
(a) The proposed cost to develop the qualifying project;
(b) The estimated life-cycle cost of the qualifying project;
(c) The general reputation, industry experience, and financial capacity of the private partner;
(d) The proposed design of the qualifying project;
(e) The eligibility of the qualifying project for accelerated selection, review, and documentation timelines under the Mississippi Development Authority's guidelines;
(f) Estimated benefits to the public;
(g) The private partner's compliance with a minority business enterprise participation plan;
(h) The private partner's plans to employ local contractors and residents; and
(i) Other criteria that the responsible public entity deems appropriate.
(8) After ranking the proposals, the responsible public entity shall begin simultaneous negotiations with the first and second ranked private partners. If the responsible public entity and the first or second ranked private partner do not reach a public-private partnership agreement or interim agreement, then the responsible public entity may conduct negotiations with the next ranked private partner. This process shall continue until the responsible public entity either voluntarily abandons the process or executes a public-private partnership agreement or interim agreement with a private partner.
(9) At any time during the process outlined in this chapter, but before the full execution of a public-private partnership agreement, the responsible public entity may, without liability to any private partner or third party, except to the extent of any eligible costs provided for in the request for qualifications and/or request for proposals, cancel its request for proposals or reject all proposals received in response to its request for proposals, for any reason whatsoever.
(10) Responsible public entities who utilize the processes and procedures described in this chapter shall not be subject to Chapter 7, Title 31, Mississippi Code of 1972, or any other public bidding laws of this state.
SECTION 7. The following shall be codified as Section 31-33-13, Mississippi Code of 1972:
31-33-13. (1) The responsible public entity may enter into a public-private partnership agreement to develop a qualifying project only after the chief executive officer of the responsible public entity makes a finding of public interest and regional plan compatibility. Such findings shall, at a minimum, consider the following:
(a) Benefits to the public;
(b) Advantages or disadvantages to develop the qualifying project as a public-private partnership versus a traditional procurement, including the anticipated cost over the project life-cycle, adjusted for risk and risk transfers;
(c) Sources of funding and financing for the qualifying project;
(d) The general reputation, qualifications, industry experience and financial capacity of the private partner or private partners;
(e) The proposal's compatibility with regional infrastructure plans; and
(f) Other criteria that the responsible public entity deems appropriate.
(2) The responsible public entity shall publicly disclose all findings of public interest and regional compatibility made pursuant to the requirements of subsection (1)(a) and (b) of this section in a public report, which shall include a detailed discussion of all considerations on which the findings are based followed by fourteen (14) days of public comment before execution of a public-private partnership agreement.
SECTION 8. The following shall be codified as Section 31-33-15, Mississippi Code of 1972:
31-33-15. (1) Before entering into a public-private partnership agreement, the responsible public entity shall notify affected jurisdictions in writing of such proposal from the private partner and by furnish a copy of the proposal from the private partner to each affected jurisdiction.
(2) Each affected jurisdiction may, within sixty (60) days after receiving the notice required under subsection (1) of this section, submit in writing any comments to the responsible public entity on the project's potential impact and compatibility with local and regional budgets and infrastructure plans.
(3) The responsible public entity shall consider the comments of the affected jurisdiction before entering into a public-private partnership agreement with a private partner.
SECTION 9. The following shall be codified as Section 31-33-17, Mississippi Code of 1972:
31-33-17. (1) Before or in connection with the negotiation of a public-private partnership agreement, the responsible public entity may enter into an interim agreement with the private partner that submitted the selected proposal. An interim agreement shall not obligate the responsible public entity to enter into a public-private partnership agreement. The interim agreement is wholly discretionary; the responsible public entity and the private partner may proceed directly to creating a public-private partnership agreement without creating an interim agreement. An interim agreement shall only:
(a) Authorize the private partner to commence activities for which it may be compensated related to the proposed qualifying project, including, but not limited to, project planning, design and engineering, environmental analysis and mitigation and ascertaining the availability of financing for the proposed facility; and
(b) Establish the process and timing of the negotiation of the public-private partnership agreement.
(2) A responsible public entity may enter into an interim agreement with multiple private partners if the responsible public entity determines, in writing, that it is in the public interest to do so.
(3) Prior to developing a qualifying project, the private partner that submitted the selected proposal shall enter into a public-private partnership agreement with the responsible public entity stipulating the obligations of and the allocation of responsibilities among the parties, which, in addition to other contract terms, must include:
(a) Descriptions of which party will assume responsibility for specific project elements and when;
(b) How the parties will share management of the risks of the qualifying project;
(c) How the parties will share the various costs to develop the qualifying project;
(d) How the parties will allocate financial responsibility for cost overruns;
(e) The term of the public-private partnership agreement;
(f) Any safeguards to mitigate additional costs or service disruptions to the public in the event of a material default or cancellation of the public-private partnership agreement;
(g) Performance standards and any damages for nonperformance;
(h) Any performance incentives;
(i) Accounting and auditing standards to be used to evaluate work on the qualifying project;
(j) The responsibility for reconstruction or renovations required for a qualifying project to meet all applicable government standards upon reversion of the qualifying project to the responsible public entity at the termination of the public-private partnership agreement; and
(k) Such other terms and conditions agreed to mutually by the responsible public entity and the private partner.
(4) The public-private partnership agreement shall provide for such fees as may be established by agreement of the parties and shall not be subject to Chapter 7, Title 31, Mississippi Code of 1972.
(5) The public-private partnership agreement shall contain a provision by which a private partner expressly agrees that it is prohibited from seeking injunctive or other equitable relief to delay, prevent or otherwise hinder the responsible public entity or any jurisdiction from developing or operating any project that was planned and that may impact the revenue that the private partner may derive from the qualifying project under a public-private partnership agreement, except that the public-private partnership agreement may provide for reasonable compensation to the private partner for the adverse effect on revenues resulting from an unplanned revenue-impacting project undertaken by any responsible public entity.
SECTION 10. The following shall be codified as Section 31-33-19, Mississippi Code of 1972:
31-33-19. (1) Subject to the requirements of this chapter, the responsible public entity may utilize any project delivery method or agreement or combination of methods or agreements to develop a qualifying project including, but not limited to:
(a) A design-build agreement;
(b) A design-build-finance agreement;
(c) A design-build-finance-operate agreement;
(d) A design-build-finance-operate-maintain agreement;
(e) A design-build-maintain agreement;
(f) A design-build-operate-maintain agreement;
(g) An operate-maintain agreement;
(h) A concession providing for the private partner to design, build, operate, maintain, manage, and/or lease a qualifying project; or
(i) Any other innovative or nontraditional project delivery method or agreement or combination of methods or agreements that the responsible public entity determines will serve the public interest.
(2) For each of the types of public-private partnership agreements authorized under subsection (1) of this section, the following process shall apply:
(a) Subject to Section 31-33-11(2), the evaluation of the responsible public entity is a public record and shall be maintained for a minimum of ten (10) years after project completion by the responsible public entity.
(b) The responsible public entity shall maintain detailed records on qualifying projects separate and apart from its regular record keeping.
(c) The responsible public entity shall file a report to the Mississippi Development Authority evaluating the chosen method of contracting by comparing it to the low-bid method of contracting. At a minimum, the report must include:
(i) The management goals and objectives for such public-private partnership agreement's system of management;
(ii) A complete description of such public-private partnership agreement's management system, including a description of the system the responsible public entity put into place on all projects managed under the system to ensure that it has the complete information on costs and to ensure proper analysis of any proposal the responsible public entity receives from a private partner;
(iii) The accountability systems the responsible public entity established to monitor any of such public-private partnership agreement's compliance with specific goals and objectives for the qualifying project;
(iv) The outcome of any qualifying project or any interim report on an ongoing project let under the public-private partnership agreement's management system showing compliance with the goals, objectives, policies and procedures the responsible public entity set for the qualifying project;
(v) The method used by the responsible public entity to select qualifying projects to utilize such public-private partnership agreement's system of management and all other systems, policies and procedures that the responsible public entity considered as necessary components to such public-private partnership agreement's management system; and
(vi) A comparison of the costs between the selected public-private partnership agreement and the anticipated cost of a traditional procurement process.
SECTION 11. The following shall be codified as Section 31-33-21, Mississippi Code of 1972:
31-33-21. (1) Any financing of a qualifying project may be in such amounts and upon such terms and conditions as may be determined by the parties to the public-private partnership agreement. The private partner and the responsible public entity may utilize any and all revenues that may be available to them for the purposes of this chapter, to the extent provided in the related public-private partnership agreement, and may include, arrangements relating to:
(a) Issuer debt, equity, or other securities or obligations;
(b) Leases, concessions, and grant and loan agreements;
(c) Access to any designated state funds;
(d) Loans or grants from any state agency or state infrastructure bank; and
(e) Any other financing secured with a pledge of, security interest in, or lien on all or a portion of its property interests in the qualifying project.
(2) A responsible public entity may issue bonds as otherwise authorized by state law to fund a public-private partnership agreement.
(3) The responsible public entity may take any action to obtain federal, state, and/or local assistance for a qualifying project that serves the purpose of this chapter and may enter into contracts required to receive such assistance. To the fullest extent allowed by law, federal, state and local monies may be combined with any private sector monies in connection with a qualifying project.
(4) The responsible public entity is authorized to acquire right-of-way by any means allowable under applicable federal and state constitutional, legal and regulatory requirements.
SECTION 12. The following shall be codified as Section 31-33-23, Mississippi Code of 1972:
31-33-23. (1) All public-private partnership agreements completed under the authority of this chapter shall be validated in the chancery court of the county in which the project is sited, with all public agencies involved in such approved qualifying project being parties to the validation proceedings, with the full right to any party in interest to file objections thereto, in the manner provided now by Chapter 13, Title 31, Mississippi Code of 1972, and the validation decree of the chancellor validating the conditions and obligations of the public-private partnership agreement and its approval shall carry the same force and effect therein. All objections to any matters relating to such public-private partnership agreement shall be adjudicated and determined by the chancery court in the validation proceedings and in no other manner, and all rights of the parties shall be preserved and not foreclosed, for the hearing before the chancery court or the chancellor in vacation.
(2) All such public-private partnership agreements may be completed without any other proceedings or the happening of any other conditions or things other than those proceedings, conditions and things which are specified or required by this chapter.
SECTION 13. This act shall take effect and be in force from and after July 1, 2019.
