PROCESS FOR SUBMITTING PROJECT PROPOSALS - Under the act, any potential private partner may submit a request for approval to the commission to finance, develop and/or operate the project. The commission shall use a competitive procurement process to form a public private partnership. The act requires the commission to publish a public notice of its request for proposals. The commission shall include in such notice a deadline by which responses to such requests for proposals must be submitted.

APPROVAL OF PROJECT - The commission may approve the project if it determines the bridge will improve and is a needed addition to the state highway system. The commission may grant tentative approval of the potential private partner whose request for approval or response to a request for proposal provides the best value to the state for financing, developing and/or operating the project. The commission shall establish criteria for making its determination including: the potential private partner’s preliminary estimate of project cost and its financing plan; the general reputation, qualifications, industry experience, and financial capacity of the potential private partner; the proposed plans for developing and/or operating the project; and, other criteria that the commission deems appropriate.

FINAL APPROVAL OF PRIVATE PARTNER/COMPREHENSIVE AGREEMENT - Prior to granting its final approval of the private partner to finance, develop and operate the project, the commission shall review and approve a comprehensive agreement that will provide for: the start date for construction of the project and any other dates the commission deems necessary to develop and/or operate the project; review and approval by the commission of the final plans and specifications for the development and operation of the project to ensure that such plans and specifications conform to the standards acceptable to the commission; a final financing plan; and any other provisions that the commission and the private partner deem appropriate.

TERMINATION OF NEGOTIATIONS WITH PRIVATE PARTNER - If the commission is not satisfied with the results of negotiations with a potential private partner for an agreement, the commission may terminate negotiations with the potential private partner. The commission may reject any and all requests for approval and responses to a request for proposals.

SUNSHINE LAW APPLICABILITY - All information of any kind submitted by a potential private partner to the commission pursuant to a request for approval as provided in section shall be a closed record. After the private partner and the commission execute the comprehensive agreement, information provided by the private partner, the interim agreement and the comprehensive agreement shall be an open record as provided for by Missouri's sunshine law.

PRIVATE PARTNER GENERAL POWERS - The act delineates the powers of the private partner. The powers include contracting with governmental bodies, leasing or acquiring the right to operate the project, collect user fees in connection with the use of the project by the traveling public, and borrow money for project purposes.

REQUIREMENTS OF PRIVATE PARTNER - The private partner shall, in connection with the financing, development and operation of the project, provide the following:

(1) Security and warranties in the forms and amounts satisfactory to the commission;

(2) An annual financial statement audited by an independent certified public accountant and such other financial reports and information as required by the commission;

(3) A summary of any and all compensation from all sources for the project to the private partner;

(4) Evidence that the private partner has obtained general commercial liability insurance and worker’s compensation insurance, if applicable.

The commission may also require the private partner to provide bonds.

AUTHORITY TO IMPOSE AND COLLECT USER FEES AND TOLLS - The commission may impose user fees for the project. The comprehensive agreement shall provide the rate of such user fees as may be established by agreement of the commission and the private partner. Such user fees should be set in an amount that takes into account any lease payments, reasonable costs of financing, development and operation. A rate schedule of the current user fees imposed and collected for use of the project shall be made available by the private partner or the commission to any member of the public on request. The commission may authorize the private partner to collect and enforce user fees for the project.

GOVERNMENT AND PRIVATE SECTOR ASSISTANCE FOR THE PROJECT - The commission may take any action to obtain federal, state or local government or private sector assistance for the project and may enter into any contracts required for such assistance. In the comprehensive agreement, the commission may agree to loan funds received from any federal, state or local government or the private sector to the private partner for the development and operation of the project from time to time.

INDEBTEDNESS, BONDS AND TAX EXEMPT STATUS - The commission and the private partner may use any and all revenues that may be available to them and may, to the fullest extent permitted by applicable law, issue debt, equity, or other securities or obligations. The private partner may issue corporate bonds, private activity bonds, refunding bonds, notes and other obligations, and may secure any of such obligations by mortgage, pledge, or deed of trust of any or all of the property and income of the private partner. The private partner shall not mortgage, pledge or give a deed of trust on any real property or interests obtained by eminent domain acquired from the state of Missouri or any agency or political subdivision thereof. Bonds, notes and other obligations shall exclusively be the responsibility of the private partner payable solely out of its funds and property and shall not constitute debt or liability of the commission or the state of Missouri or any other agency or political subdivision of the state. Neither the private partner nor the commission shall be obligated to pay such bonds, notes or other obligations with any funds other than those specifically pledged to repayment. Any private partner bonds issued, the interest thereon, or any proceeds from such bonds shall be exempt from taxation for all purposes except the state estate tax.

PROJECT DELIVERY AND PROCUREMENT - The commission may authorize or require a private partner to use any project delivery method for the efficient development and/or operation of the project, including design-build contracts.

DISADVANTAGED BUSINESS ENTERPRISE PARTICIPATION - The private partner shall provide the commission a detailed disadvantaged business enterprise participation plan that conforms to commission reporting requirements for the federal disadvantaged business enterprise program pursuant to federal law and regulations on federal-aid highway projects. The plan shall also provide information describing the experience of the private partner in meeting disadvantaged business enterprise participation goals, how the private partner will meet the departments disadvantaged business participation goal and such other qualifications that the commission considers to be in the best interest of the state.

LEASE - The commission may lease to or for the use of a private partner the project or such right-of-way or other easement in such real estate as the commission deems necessary for the development and/or operation of the project.

COMMISSION CONDEMNATION AUTHORITY - The commission may condemn lands for the project in the name of the state of Missouri.

COLLECTION AND ENFORCEMENT OF USER FEES AND TOLLS - The private partner may use any toll tickets, barrier toll facilities, billing accounts, commuter passes and electronic recording or identification devices. An owner of a motor vehicle who fails to pay the required toll is guilty of an infraction and upon conviction thereof, shall be required to pay both the amount of the toll as well as pay a fine in an amount to be determined by the court.

TORT LIABILITY LIMITATIONS FOR PRIVATE PARTNER - Under the act, tort liability caps are established for the private partner and its employees and agents. The tort liability caps shall be a per person cap and a per occurrence cap and shall be in amounts identical to the tort liability caps established in the sovereign immunity statutes (Section 537.610). Commercial general liability insurance policies purchased by the private partner shall not be used to expand the tort liability caps.

MATERIAL DEFAULT/REMEDIES - The act requires the commission to provide notice of material defaults to the private contractor and give the private partner the opportunity to cure such defaults. After such notice, the commission may exercise a variety of remedies delineated in the act.

ANNUAL REPORT TO JOINT COMMITTEE ON TRANSPORTATION OVERSIGHT - The act requires the commission to make an annual status report to the joint transportation oversight committee. The annual report shall assess the advantages and disadvantages of the public-private partnership method of financing, developing and/or operating the project.

This act is similar to SB 938 (2006).

STEPHEN WITTE