SF 2243

1st Engrossment - 87th Legislature (2011 - 2012) Posted on 03/26/2012 12:45pm

A bill for an act
relating to transportation; contracts; establishing a public-private partnership
pilot program and related regulations.

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

Section 1. new text begin PUBLIC-PRIVATE PARTNERSHIP PILOT PROGRAM.
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new text begin (a) The commissioner of transportation is authorized to consider and utilize
public-private partnership procurement methods for up to three pilot projects if objective
analysis demonstrates that it provides better long-term value for the state than traditional
procurement methods.
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new text begin (b) Notwithstanding Minnesota Statutes, section 160.845, 160.98, or any other law
to the contrary, the commissioner may consider for use in the pilot program any existing
public-private partnership mechanism or any proposed mechanism that proves the best
available option for the state. Mechanisms the commissioner may consider include, but
are not limited to, toll facilities, BOT facilities, or BTO facilities. For the purposes of this
paragraph, toll facilities, BOT facilities, and BTO facilities have the meanings given
under section 160.84.
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new text begin (c) As part of the pilot program, the commissioner is directed to form an independent
advisory and oversight committee. The committee shall consist of the commissioner of
management and budget, the legislative auditor, and one representative each from the
American Council of Engineering Companies - Minnesota chapter, the Central Minnesota
Transportation Alliance, and the Minnesota County Engineers Association, and its duties
shall include, but are not limited to, reviewing and approving projects proposed under this
section, reviewing any contractual or financial agreements to ensure program requirements
are met, and ensuring that any proposed or executed agreement serves the public interest.
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new text begin (d) Among the projects the commissioner may consider is the construction of the
Interstate 94/US Highway 10 River Crossing near marked Minnesota Trunk Highway 24.
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Sec. 2. new text begin PILOT PROGRAM RESTRICTIONS.
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new text begin (a) The commissioner may not accept unsolicited proposals for a public-private
initiative.
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new text begin (b) The commissioner shall select a private entity or entities for all public-private
partnerships on a competitive basis.
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new text begin (c) When entering into a public-private partnership, the commissioner may not enter
into any noncompete agreement that inhibits the state's ability to address ongoing or
future infrastructure needs.
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new text begin (d) If the commissioner enters into a public-private partnership agreement that
includes a temporary transfer of ownership or control of a road, bridge, or other
infrastructure investment to the private entity, the agreement must include a provision
requiring the return of the road, bridge, or other infrastructure investment to the state
after a specified period of time.
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new text begin (e) The commissioner may only consider new projects for a public-private
partnership. The commissioner is prohibited from considering projects involving existing
infrastructure for a public-private partnership.
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Sec. 3. new text begin CONSIDERATIONS.
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new text begin (a) In soliciting, evaluating, and selecting a private entity with which to enter into a
public-private project, the commissioner must consider:
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new text begin (1) the ability of the proposed project to improve safety, reduce congestion, increase
capacity, and promote economic growth;
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new text begin (2) the proposed cost of and financial plan for the project;
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new text begin (3) the general reputation, qualifications, industry experience, and financial capacity
of the private entity;
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new text begin (4) the project's proposed design, operation, and feasibility;
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new text begin (5) comments from local citizens and affected jurisdictions;
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new text begin (6) benefits to the public;
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new text begin (7) the safety record of the private entity; and
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new text begin (8) any other criteria the commissioner deems appropriate.
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new text begin (b) The independent advisory and oversight committee established under section
1, paragraph (c), shall review proposals evaluated by the commissioner to ensure the
requirements of this section are being met.
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Sec. 4. new text begin PUBLIC-PRIVATE AGREEMENT.
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new text begin (a) A public-private new text end new text begin agreement between the commissioner and a private entity shall,
at a minimum, specify:
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new text begin (1) the planning, acquisition, financing, development, design, construction,
reconstruction, replacement, improvement, maintenance, management, repair, leasing, or
operation of the project;
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new text begin (2) the term of the public-private agreement;
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new text begin (3) the type of property interest, if any, that the private entity will have in the project;
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new text begin (4) a description of the actions the commissioner may take to ensure proper
maintenance of the project;
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new text begin (5) whether user fees will be collected on the project and the basis by which the
user fees shall be determined and modified;
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new text begin (6) compliance with applicable federal, state, and local laws;
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new text begin (7) grounds for termination of the public-private agreement by the commissioner; and
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new text begin (8) procedures for amendment of the agreement.
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new text begin (b) A public-private agreement between the commissioner and a private entity
may provide for:
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new text begin (1) review and approval by the commissioner of the private entity's plans for the
development and operation of the project;
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new text begin (2) inspection by the commissioner of construction and improvements to the project;
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new text begin (3) maintenance by the private entity of a liability insurance policy;
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new text begin (4) filing of appropriate financial statements by the private entity on a periodic basis;
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new text begin (5) filing of traffic reports by the private entity on a periodic basis;
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new text begin (6) financing obligations of the commissioner and the private entity;
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new text begin (7) apportionment of expenses between the commissioner and the private entity;
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new text begin (8) the rights and remedies available in the event of a default or delay;
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new text begin (9) the rights and duties of the private entity, the commissioner, and other state or
local governmental entities with respect to the use of the project;
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new text begin (10) the terms and conditions of indemnification of the private entity by the
commissioner;
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new text begin (11) assignment, subcontracting, or other delegations of responsibilities of the
private entity or commissioner under agreement to third parties, including other private
entities or state agencies;
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new text begin (12) if applicable, sale or lease to the private entity of private new text end new text begin property related to
the project;
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new text begin (13) traffic enforcement and other policing issues; and
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new text begin (14) any other terms and conditions the commissioner deems appropriate.
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new text begin (c) The independent advisory and oversight committee established under section 1,
paragraph (c), shall review any proposed contractual agreement prior to execution in order
to ensure the requirements of this section are being met.
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Sec. 5. new text begin FUNDING FROM FEDERAL GOVERNMENT.
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new text begin (a) The commissioner may accept from the United States or any of its agencies
funds that are available to the state for carrying out the pilot program, whether the funds
are available by grant, loan, or other financial assistance.
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new text begin (b) The commissioner may enter into agreements or other arrangements with the
United States or any of its agencies as necessary for carrying out the pilot program.
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new text begin (c) The commissioner may combine federal, state, local, and private funds to finance
a public-private partnership pilot project.
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Sec. 6. new text begin REPORTING.
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new text begin By August 1, 2014, and annually by August 1 thereafter, the commissioner shall
submit to the chairs and ranking minority members of the house of representatives and
senate committees having jurisdiction over transportation policy and finance a listing of
all agreements executed under the pilot program authority. The listing must identify
each agreement, the contracting entities, contract amount and duration, any repayment
requirements, and provide an update on the project's progress. The listing may be
submitted electronically and is subject to Minnesota Statutes, section 3.195, subdivision 1.
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