An Act Relating to the Creation of Public-private Facilities and Infrastructure
Maine Legislature, Session 127, LD 1298
Committee: State and Local Government
Sponsors: WARD, CAMPBELL, GREENWOOD, GUERIN, LOCKMAN, PICKETT, TUELL, TURNER

Legislative Document 
No. 1298 
H.P. 884 
House of Representatives, April 9, 2015 
An Act Relating to the Creation of Public-private Facilities and 
Infrastructure 
Reference to the Committee on State and Local Government suggested and ordered printed. 
ROBERT B. HUNT 
Clerk 
Presented by Representative WARD of Dedham. 
Cosponsored by Representatives: CAMPBELL of Orrington, GREENWOOD of Wales, 
GUERIN of Glenburn, LOCKMAN of Amherst, PICKETT of Dixfield, TUELL of East 
Machias, TURNER of Burlington. 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1.  5 MRSA c. 167 is enacted to read: 
CHAPTER 167 
PUBLIC-PRIVATE INFRASTRUCTURE AGREEMENTS 
§2041.  Definitions 
As used in this chapter, unless the context otherwise indicates, the following terms 
have the following meanings. 
1.  Affected jurisdiction.  "Affected jurisdiction" means a county, municipality or 
unorganized territory in which all or a portion of a qualifying project is located. 
2.  Comprehensive agreement.  "Comprehensive agreement" means an agreement 
between a contracting person and a responsible governmental entity pursuant to section 
2050-C. 
3.  Contracting person.  "Contracting person" means a person who enters into a 
comprehensive agreement or interim agreement with a responsible governmental entity 
under this chapter. 
4.  Develop.  "Develop" means to plan, design, develop, lease, acquire, install, 
construct or expand a qualifying project. 
5.  Governmental entity.  "Governmental entity" means: 
A.  A board, commission, department or agency of the State authorized by the 
Governor to operate in accordance with this chapter; 
B.  An institution of higher education as defined in Title 20-A, section 12501-A, 
subsection 11 that elects to operate in accordance with this chapter through the 
adoption of a resolution by the institution; or 
C.  A city, town, plantation or county that elects to operate in accordance with this 
chapter through the adoption of a resolution by the legislative body of the city, town, 
plantation or county. 
6.  Interim agreement.  "Interim agreement" means an agreement between a 
contracting person and a responsible governmental entity pursuant to section 2050-D. 
7.  Lease payment.  "Lease payment" means any form of payment, including a land 
lease, by a governmental entity to a contracting person for the use of a qualifying project. 
8.  Material default.  "Material default" means a default by a contracting person in 
the performance of duties that jeopardizes adequate service to the public from a 
qualifying project. 
9.  Operate.  "Operate" means to finance, maintain, improve, equip, modify, repair or 
operate a qualifying project. 
10.  Qualifying project.  "Qualifying project" means: 
A.  A ferry, mass transit facility, vehicle parking facility, port facility, power 
generation facility, fuel supply facility, oil or gas pipeline, water supply facility, 
public works facility, waste treatment facility, hospital, school, medical or nursing 
care facility, recreational facility, public building or other similar facility that will be 
used by a governmental entity for public use, including any structure, parking area, 
appurtenance and other property required to operate the structure or facility and any 
technology infrastructure installed in the structure or facility that is essential to the 
project’s purpose; or 
B.  Any improvements to unimproved real estate determined by a governmental 
entity to be necessary or desirable. 
11.  Responsible governmental entity.  "Responsible governmental entity" means a 
governmental entity that has the authority to develop or operate a qualifying project. 
12.  Revenue.  "Revenue" means all revenue, income, earnings, user fees, lease 
payments or other service payments that support the development or operation of a 
qualifying project, including money received from the Federal Government, a 
governmental entity or any agency or instrumentality of the Federal Government. 
13.  Service contract.  "Service contract" means a contract between a responsible 
governmental entity and a contracting person under section 2049. 
14.  Service payment.  "Service payment" means a payment to a contracting person 
under a service contract. 
15.  User fee.  "User fee" means a rate, fee or other charge imposed by a contracting 
person for the use of all or part of a qualifying project under a comprehensive agreement. 
§2042.  Declaration of public purpose 
1.  Public purpose.  The Legislature finds that: 
A.  There is a public need to timely develop and operate education facilities, 
technology and other public infrastructure and governmental facilities in this State 
that serve a public need and purpose; 
B.  The public need may not be wholly satisfied by existing methods of procurement 
by which qualifying projects are developed and operated; 
C.  There are inadequate resources to develop new education facilities, technology 
and other public infrastructure and governmental facilities for the benefit of the 
citizens of this State, and there is demonstrated evidence that partnerships between 
public entities and private entities or persons can meet these needs by improving the 
schedule for delivery, lowering the cost, improving operations and providing other 
benefits to the public; 
D.  Financial incentives exist under state and federal tax provisions that encourage 
public entities to enter into partnerships with private entities or persons to develop 
qualifying projects; 
E.  Authorizing private entities or persons to develop or operate one or more 
qualifying projects may serve the public safety, benefit and welfare by making 
projects available to the public in a more timely or less costly fashion; and 
F.  An action authorized under section 2047 serves a public purpose if the action 
facilitates the timely development or operation of a qualifying project. 
2.  Liberal construction.  This chapter must be liberally construed to promote the 
public purpose as described in this section. 
3.  Not exclusive.  The procedures in this chapter are not exclusive. This chapter does 
not prohibit a responsible governmental entity from entering into an agreement for or 
procuring public and private facilities and infrastructure under other statutory authority. 
§2043.  Applicability 
1.  State highway system.  This chapter does not apply to the financing, design, 
construction or maintenance of a highway in the state highway system. 
2.  Eminent domain.  Except as otherwise provided in this chapter, this chapter does 
not expand or limit any right of eminent domain. 
§2044.  Authority to enter into agreements 
A responsible governmental entity may enter into an agreement with a private entity 
or person for the development or operation of a qualifying project in accordance with this 
chapter. 
§2045.  Adoption of guidelines by responsible governmental entities 
1.  Adoption of guidelines required.  Before requesting a proposal under section 
2047, subsection 2 or considering a proposal under section 2047, subsection 1, a 
responsible governmental entity must adopt and make available to the public guidelines 
that comply with this chapter. The guidelines must be reasonable, encourage competition 
and guide the selection of qualifying projects under the purview of the responsible 
governmental entity. 
2.  Guideline contents.  The guidelines adopted by a responsible governmental entity 
under subsection 1 must: 
A.  Require the responsible governmental entity to make a representative of the 
responsible governmental entity available to meet with private entities or persons 
who are considering submitting a proposal for a qualifying project and provide notice 
of that representative’s availability to meet with such private entities or persons; 
B.  Provide reasonable criteria for choosing among competing proposals for a 
qualifying project and clearly outline selection criteria in requests for proposals; 
C.  Contain a suggested timeline for selecting proposals and entering into an interim 
agreement or comprehensive agreement; 
D.  Require the responsible governmental entity to accelerate the selection, review 
and documentation timelines for proposals involving a qualifying project considered 
a priority by the responsible governmental entity; 
E.  Include financial review and analysis procedures that at a minimum consist of a 
cost-benefit analysis, assessment of opportunity cost, consideration of the degree to 
which functionality and services similar to the functionality and services to be 
provided by the proposed qualifying project are already available in the private 
market and consideration of the results of studies and analyses of the proposed 
qualifying project under paragraph K; 
F.  Allow the responsible governmental entity to consider the nonfinancial benefits of 
the qualifying project; 
G.  Include criteria for: 
(1)  Evaluating a qualifying project, including the scope, costs and duration of the 
project and the involvement or effect of the project on multiple public entities; 
(2)  The creation and responsibilities of an oversight committee, with members 
representing the responsible governmental entity, that acts as an advisory 
committee to review the terms of a proposed interim agreement or 
comprehensive agreement; and 
(3)  Compliance with the requirements of this chapter; 
H.  Require the responsible governmental entity to analyze the adequacy of the 
information to be released by the responsible governmental entity when seeking 
competing proposals and require that the responsible governmental entity provide 
detailed information, including but not limited to the selection process for the 
proposal and for contractors, to encourage competition; 
I.  Establish criteria to ensure that the responsible governmental entity considers the 
extent of the competition before selecting proposals and negotiating an interim 
agreement or comprehensive agreement; 
J.  Require the posting and publishing of a public notice of a request for proposals 
under section 2047, subsection 2 or of a proposal requesting approval under section 
2047, subsection 1 including: 
(1)  Specific information and documentation regarding the nature, timing and 
scope of a qualifying project; 
(2)  A reasonable period of not less than 45 days, as determined by the 
responsible governmental entity, during which the responsible governmental 
entity must accept submission of competing proposals for the qualifying project 
to encourage competition and partnerships; and 
(3)  A requirement for posting the notice on the responsible governmental entity's 
publicly accessible website and adoption of a public notice process; and 
K.  Include a requirement that the responsible governmental entity engage the 
services of qualified professionals, including an architect, professional engineer and 
certified public accountant not employed by the responsible governmental entity, to 
provide independent analyses regarding the specifics, advantages, disadvantages and 
long-term and short-term costs of any proposal for a qualifying project unless the 
responsible governmental entity determines the analysis of the proposal is to be 
performed by employees of the responsible governmental entity. 
§2046.  Approval required 
A private entity or person may not develop or operate a qualifying project under this 
chapter unless that private entity or person obtains the approval of a responsible 
governmental entity under this chapter.  A private entity or person may initiate the 
approval process by submitting a proposal requesting approval under section 2047, 
subsection 1 or a responsible governmental entity may request proposals under section 
2047, subsection 2. 
§2047.  Qualifying projects; proposals; approval 
1.  Proposal.  A private entity or person may submit to a responsible governmental 
entity a proposal requesting approval of a qualifying project. A proposal submitted under 
this subsection must be accompanied by the following, unless waived by a responsible 
governmental entity: 
A.  A topographic map, with appropriate scale, indicating the location of the 
qualifying project; 
B.  A description of the qualifying project, including: 
(1)  A conceptual design of the facility or a conceptual plan for the provision of 
services or technology infrastructure; and 
(2)  A schedule from the initiation to the completion of the qualifying project that 
includes the proposed major responsibilities and timeline for activities to be 
performed by the responsible governmental entity and the private entity or 
person; 
C.  A statement of the method the private entity or person proposes for securing 
necessary property interests required for the qualifying project; 
D.  Information relating to any plans for the development of facilities or technology 
infrastructure to be used by a governmental entity that are similar to the qualifying 
project being proposed by the private entity or person for each affected jurisdiction; 
E.  A list of all permits and approvals required for the development and completion of 
the qualifying project from local, state or federal agencies and a projected schedule 
for obtaining permits and approvals; 
F.  A list of any facilities as defined in section 2050-I that will be affected by the 
qualifying project and a statement of the private entity's or person's plans to 
accommodate affected facilities; 
G.  A statement concerning the private entity's or person's plans for financing the 
qualified project, including the sources of the private entity's or person's funds and 
identification of any dedicated revenue source of the proposed debt or equity 
investment for the private entity or person; 
H.  The name and address of each individual who may be contacted for further 
information concerning the proposal; 
I.  User fees, lease payments and other service payments anticipated over the term of 
any applicable interim agreement or comprehensive agreement and the method and 
circumstances for changes to the user fees, lease payments and other service 
payments over time; and 
J.  Any material and information requested by the responsible governmental entity. 
A responsible governmental entity that makes a determination to reject a proposal 
submitted under this subsection shall return the proposal, all fees and accompanying 
documentation to the private entity or person submitting the proposal. Rejected proposals 
are not public records and to protect the intellectual property of the private entity or 
person who submitted the proposal may not be retained by the responsible governmental 
entity. 
2.  Request for proposals.  A responsible governmental entity may request proposals 
for the development or operation of a qualifying project. A responsible governmental 
entity shall consider the total project cost as a factor in evaluating proposals received but 
is not required to select the proposal that offers the lowest total project cost. When 
evaluating a response to a request for proposals, the responsible governmental entity may 
consider the following factors: 
A.  The proposed cost of the qualifying project; 
B.  The general reputation, industry experience and financial capacity of the private 
entity or person submitting a proposal; 
C.  The proposed design of the qualifying project; 
D.  The eligibility of the project for accelerated selection, review and documentation 
timelines under the responsible governmental entity's guidelines adopted pursuant to 
section 2045, subsection 2, paragraph D; 
E.  Comments from local citizens and officials of affected jurisdictions; 
F.  Benefits to the public; 
G.  The private entity's or person's good faith effort to comply with the goals of a 
historically underutilized business plan; 
H.  The private entity's or person's plans to use contractors that meet pre-bid 
qualifications according to section 1747 and employ residents of the State for 
operations and maintenance; 
I.  For a qualifying project that involves a continuing role beyond design and 
construction, the private entity's or person's proposed rate of return and opportunities 
for revenue sharing; and 
J.  Criteria the responsible governmental entity considers appropriate. 
3.  Approval.  A responsible governmental entity may approve a proposal for the 
development or operation of a qualifying project if the responsible governmental entity 
determines that the project serves the public purpose of this chapter based on the 
following: 
A.  There is a public need for or benefit derived from the proposed qualifying project; 
B.  The estimated cost of the proposed qualifying project is reasonable in relation to 
the cost of similar facilities; and 
C.  The proposal results in the timely development or operation of the qualifying 
project. 
4.  Fee.  A responsible governmental entity may charge a reasonable fee to cover the 
costs of processing, reviewing and evaluating a proposal, including reasonable legal fees 
and fees for financial, technical and other necessary advisors or consultants. 
5.  Approval subject to agreement.  The approval of a proposal by a responsible 
governmental entity is subject to the private entity's or person's entering into a 
comprehensive agreement with the responsible governmental entity and may be subject to 
the private entity's or person's entering into an interim agreement. 
6.  Establishment of start date.  On approval of a qualifying project, the responsible 
governmental entity shall establish a date by which activities related to the qualifying 
project must begin. The responsible governmental entity may extend that date. 
7.  Confidential information.  A responsible governmental entity shall protect 
confidential and proprietary information provided by the contracting person under an 
interim agreement and a comprehensive agreement. 
8.  Submittal to Bureau of General Services.  Before entering into an interim 
agreement or comprehensive agreement, a responsible governmental entity shall submit 
copies of proposals to the Department of Administrative and Financial Services, Bureau 
of General Services. 
9.  Debt service capacity.  This chapter or an interim agreement or comprehensive 
agreement entered into under this chapter does not enlarge, diminish or affect any 
authority a responsible governmental entity has to take action that would affect the debt 
service capacity of the State. 
§2048.  Posting of proposals; public comment; public access to procurement records 
1.  Notice.  Not later than the 10th day after the date a responsible governmental 
entity accepts a proposal submitted in accordance with section 2047, the responsible 
governmental entity shall provide notice of the proposal as follows: 
A.  For a responsible governmental entity described in section 2041, subsection 5, 
paragraph A or B, by posting on the responsible governmental entity's publicly 
accessible website; and 
B.  For a responsible governmental entity described in section 2041, subsection 5, 
paragraph C, by posting a copy of the proposal on the responsible governmental 
entity's publicly accessible website or publishing in a newspaper of general 
circulation in the area in which the qualifying project is to be performed a summary 
of the proposal and the location where copies of the proposal are available for public 
inspection. 
2.  Public inspection.  A responsible governmental entity shall make available for 
public inspection at least one copy of the proposal under subsection 1. This section does 
not prohibit the responsible governmental entity from posting the proposal in another 
manner considered appropriate by the responsible governmental entity to provide 
maximum notice to the public of the opportunity to inspect the proposal. 
3.  Posting exclusions.  Trade secrets, financial records or other records of a 
contracting person excluded from disclosure under this chapter may not be posted or 
made available for public inspection pursuant to this section except as otherwise agreed 
by the responsible governmental entity and the contracting person. 
4.  Public hearing.  A responsible governmental entity shall hold a public hearing on 
the proposal under subsection 1 during the proposal review process not later than the 30th 
day before the date the entity enters into an interim agreement or comprehensive 
agreement. 
5.  Notice upon completion of negotiation.  When the negotiation phase for the 
development of an interim agreement or comprehensive agreement is complete and 
before an interim agreement or comprehensive agreement is entered into, a responsible 
governmental entity shall make available the proposed agreement in a manner provided 
by subsection 1 or 2. 
6.  Procurement records.  Except as otherwise provided in this subsection, a 
responsible governmental entity that has entered into an interim agreement or 
comprehensive agreement shall make procurement records available for public inspection 
on request. For purposes of this subsection, the following are designated as confidential 
for purposes of Title 1, section 402, subsection 3, paragraph A: 
A.  Trade secrets of the contracting person or the financial records, including balance 
sheets and financial statements of the contracting person, that are not generally 
available to the public through other means; and 
B.  Cost estimates relating to a proposed procurement transaction prepared by or for a 
responsible governmental entity. 
An inspection of procurement transaction records under this subsection is subject to 
reasonable restrictions to ensure the security and integrity of the records. 
This section applies to any proposal under subsection 1 regardless of whether the 
proposal results in an interim agreement or comprehensive agreement. 
§2049.  Service contracts 
A responsible governmental entity may contract with a contracting person for the 
delivery of services to be provided as part of a qualifying project in exchange for service 
and other consideration as the responsible governmental entity considers appropriate. 
§2050.  Affected jurisdictions 
A private entity or person submitting a proposal to a responsible governmental entity 
under section 2047 shall provide a copy of that proposal to each affected jurisdiction.  
Not later than the 60th day after the date an affected jurisdiction receives the notice 
required under this section, the affected jurisdiction shall submit in writing to the 
responsible governmental entity comments the affected jurisdiction has on the proposed 
qualifying project indicating whether the facility or project is compatible with a local 
comprehensive plan, a local infrastructure development plan, a capital improvements 
budget or other government spending plan. The responsible governmental entity shall 
consider the submitted comments before entering into a comprehensive agreement with a 
contracting person. 
§2050-A.  Dedication and conveyance of public property  
1.  Dedication of property interest for public use.  A responsible governmental 
entity may dedicate for public use a property interest in land, improvements and tangible 
personal property if the responsible governmental entity finds that the dedication of the 
property interest will serve the public purpose of this chapter by minimizing the cost of a 
qualifying project to the responsible governmental entity or reducing the delivery time of 
a qualifying project.  A responsible governmental entity may not dedicate a property 
interest under this subsection unless the responsible governmental entity obtains an 
appraisal of the land, improvements or tangible property. 
2.  Conveyance of property interest to contracting person.  A responsible 
governmental entity may convey a property interest in property dedicated for public use 
under subsection 1 to a contracting person for consideration as determined by the 
responsible governmental entity. Consideration may include an agreement by the 
contracting person to develop or operate the qualifying project.  A property interest under 
this subsection includes a license, franchise, easement or other right or interest the 
responsible governmental entity considers appropriate and is subject to conditions 
imposed by general law governing the conveyance and subject to the rights of an existing 
utility under a license, franchise, easement or other right or interest under law. 
§2050-B.  Powers and duties of contracting person  
1.  Powers.  A contracting person may: 
A.  Exercise the powers granted by general law to a person that has the same form of 
organization as the contracting person and governing the business or activity of the 
contracting person; 
B.  Develop or operate a qualifying project and collect lease payments, impose fees 
and enter into service contracts in connection with the use of a qualifying project; 
C.  Impose a user fee or increase a user fee if the fee or increase is approved by the 
responsible governmental entity; 
D.  Own, lease or acquire any right to use or operate a qualifying project; 
E.  Finance a qualifying project in an amount and according to terms determined by 
the contracting person. A contracting person may issue debt, equity or other securities 
or obligations, enter into sale and leaseback transactions and secure any financing 
with a pledge of security interest in or lien on any or all of the contracting person's 
property, including all of the contracting person's property interests in the qualifying 
project; and 
F.  In operating a qualifying project, establish classifications according to reasonable 
categories for assessment of user fees and, with the consent of the responsible 
governmental entity, adopt and enforce reasonable rules for the qualifying project to 
the same extent as the responsible governmental entity. 
2.  Duties.  A contracting person shall: 
A.  Develop or operate a qualifying project in a manner that is acceptable to the 
responsible governmental entity and in accordance with an applicable interim 
agreement or comprehensive agreement; 
B.  Subject to subsection 3, keep a qualifying project open for use by the public at all 
times or as appropriate based on the use of the project after its initial opening on 
payment of applicable user fees, lease payments or service payments; 
C.  Maintain or provide by contract for the maintenance or upgrade of a qualifying 
project if required by an applicable interim agreement or comprehensive agreement; 
D.  Cooperate with the responsible governmental entity to establish any 
interconnection with the qualifying project requested by the responsible 
governmental entity; and 
E.  Comply with an applicable interim agreement or comprehensive agreement and a 
lease or service contract. 
3.  Temporary closure.  A contracting person may temporarily close a qualifying 
project because of emergencies or, with the consent of the responsible governmental 
entity, to protect public safety or for reasonable construction or maintenance activities. 
4.  Additional services.  This chapter does not prohibit a contracting person from 
providing additional services for the qualifying project to persons other than the 
responsible governmental entity, as long as the provision of additional services does not 
impair the contracting person's ability to meet the contracting person's commitments to 
the responsible governmental entity under an applicable interim agreement or 
comprehensive agreement. 
§2050-C.  Comprehensive agreement 
1.  Requirements.  Before developing or operating a qualifying project, a contracting 
person shall enter into a comprehensive agreement with a responsible governmental 
entity. The comprehensive agreement must require the following: 
A.  Delivery of letters of credit or other security in connection with the development 
or operation of a qualifying project, in the forms and amounts satisfactory to the 
responsible governmental entity, and delivery of performance and payment bonds for 
all construction activities; 
B.  Review of plans and specifications for the qualifying project by the responsible 
governmental entity and approval by the responsible governmental entity.  The plans 
and specifications must conform to standards acceptable to the responsible 
governmental entity, except that the contracting person may not be required to 
complete the design of a qualifying project before execution of a comprehensive 
agreement; 
C.  Inspection of the qualifying project by the responsible governmental entity to 
ensure that the contracting person's activities are acceptable to the responsible 
governmental entity in accordance with the comprehensive agreement; 
D.  Maintenance of a public liability insurance policy, copies of which must be filed 
with the responsible governmental entity accompanied by proofs of coverage, or self-
insurance, each in the form and amount satisfactory to the responsible governmental 
entity and reasonably sufficient to ensure coverage of tort liability to the public and 
project employees and to enable the continued operation of the qualifying project; 
E.  Monitoring of the practices of the contracting person by the responsible 
governmental entity to ensure that the qualifying project is properly maintained; 
F.  Reimbursement to be paid to the responsible governmental entity for services 
provided by the responsible governmental entity; 
G.  Filing of appropriate financial statements on a periodic basis or as agreed upon in 
the comprehensive agreement; 
H.  Policies and procedures governing the rights and responsibilities of the 
responsible governmental entity and the contracting person if the comprehensive 
agreement is terminated or there is a material default by the contracting person; 
I.  Assumption of the duties and responsibilities of the contracting person by the 
responsible governmental entity if determined necessary by the responsible 
governmental entity; and 
J.  The transfer or purchase of property or other interests of the contracting person to 
the responsible governmental entity if determined necessary by the responsible 
governmental entity. 
2.  User fee, lease payment or service payment.  A comprehensive agreement must 
establish any user fee, lease payment or service payment established by agreement of the 
contracting person and the responsible governmental entity. In negotiating a user fee 
under this section, the parties shall establish a payment or fee that is the same for persons 
using the qualifying project under like conditions and that will not materially discourage 
use of the qualifying project. The execution of a comprehensive agreement or an 
amendment to the comprehensive agreement is conclusive evidence that a user fee, lease 
payment or service payment complies with this chapter. A user fee or lease payment 
established in a comprehensive agreement as a source of revenue may be in addition to, 
or in lieu of, a service payment. 
3.  Grants and loans.  A comprehensive agreement may authorize the responsible 
governmental entity to make grants or loans to the contracting person from money 
received from the Federal Government, the State Government or the local government or 
any agency or instrumentality of the government. 
4.  Terms.  A comprehensive agreement must incorporate the duties of the 
contracting person under this chapter and may contain terms the responsible 
governmental entity determines serve the public purpose of this chapter. The 
comprehensive agreement may contain: 
A.  Provisions that require the responsible governmental entity to provide notice of 
default and cure rights for the benefit of the contracting person and the persons 
specified in the agreement as providing financing for the qualifying project; 
B.  Terms to which the contracting person and the responsible governmental entity 
mutually agree, including provisions regarding unavoidable delays or providing for a 
loan of public money to the contracting person to develop or operate one or more 
qualifying projects; and 
C.  Provisions in which the authority and duties of the contracting person under this 
chapter cease and the qualifying project is dedicated for the public use to the 
responsible governmental entity. 
5.  Changes to agreement.  A change in terms of a comprehensive agreement that 
the parties agree to must be added to the comprehensive agreement by written 
amendment. 
6.  Phases.  A comprehensive agreement may provide for the development or 
operation of phases or segments of a qualifying project. 
§2050-D.  Interim agreements 
Before entering into a comprehensive agreement, a responsible governmental entity 
may enter into an interim agreement with a contracting person proposing the development 
or operation of a qualifying project. An interim agreement may: 
1.  Project phases.  Authorize a contracting person to begin project phases or 
activities for which the contracting person may be compensated relating to the proposed 
qualifying project, including project planning and development, design, engineering, 
environmental analysis and mitigation, surveying and financial and revenue analysis, 
including ascertaining the availability of financing for the qualifying project; 
2.  Negotiation timing and process.  Establish a process and timing for the 
negotiation of a comprehensive agreement; and 
3.  Other provisions.  Contain provisions related to any aspect of the development or 
operation of a qualifying project that the responsible governmental entity and the 
contracting person consider appropriate. 
§2050-E.  Federal, state and local assistance 
1.  Funding sources.  A contracting person and a responsible governmental entity 
may use any funding sources that are available to the parties, including designated trust 
fund grants. 
2.  Assistance.  A responsible governmental entity may obtain federal, state or local 
assistance for a qualifying project that serves the public purpose of this chapter and may 
enter into any contracts required to receive the assistance. 
3.  Appropriation.  If a responsible governmental entity is a state agency, any money 
received from the State Government or the Federal Government or any agency or 
instrumentality of the State Government or the Federal Government is subject to 
appropriation by the Legislature. 
4.  Government grants and loans.  A qualifying project may be directly or 
indirectly paid for from the proceeds of a grant or loan made by a local government or the 
State Government or the Federal Government or any agency or instrumentality of the 
government. 
§2050-F.  Performance and payment bonds 
The construction, remodel or repair of a qualifying project may be performed only 
after performance and payment bonds for the construction, remodel or repair have been 
executed in accordance with requirements in chapter 153 regardless of whether the 
qualifying project is on public or private property or is publicly or privately owned. 
For purposes of this section, a qualifying project is considered a public work under 
chapter 153 and the responsible governmental entity shall assume the obligations and 
duties of a governmental entity under that chapter. The obligee under a performance bond 
under this section may be a public entity, a private person or an entity consisting of both a 
public entity and a private person. 
§2050-G.  Material default; remedies 
1.  Assumption of duties.  If a contracting person commits a material default under a 
comprehensive agreement, a responsible governmental entity may assume the 
responsibilities and duties of the contracting person. If a responsible governmental entity 
assumes the responsibilities and duties of the contracting person under this subsection, 
the responsible governmental entity has all the rights, title and interest in the qualifying 
project, subject to any liens on revenue previously granted by the contracting person to 
any person providing financing for the project, and may: 
A.  Develop or operate the qualifying project; 
B.  Impose user fees; 
C.  Impose and collect lease payments for the use of the project; and 
D.  Comply with any applicable contract to provide services. 
2.  Eminent domain.    A responsible governmental entity that has the power of 
eminent domain under state law may exercise that power to acquire a qualifying project 
in the event of a material default by the contracting person. A person who has provided 
financing for the qualifying project and the contracting person to the extent of the 
contracting person's capital investment may participate in the eminent domain 
proceedings with the standing of a property owner. 
3.  Termination.  A responsible governmental entity may terminate with cause an 
interim agreement or comprehensive agreement and exercise any other rights and 
remedies available to the responsible governmental entity at law or in equity. 
4.  Security.  A responsible governmental entity may make a claim under letters of 
credit, other security or performance and payment bonds. 
5.  Payment to secured parties.  If a responsible governmental entity terminates a 
comprehensive agreement, the responsible governmental entity shall collect and pay to 
secured parties any revenue subject to a lien to the extent necessary to satisfy the 
contracting person's obligations to secured parties, including maintenance of reserves. 
The liens must be correspondingly reduced and, when paid off, released. 
6.  Operation and maintenance costs.  Before any payment is made to or for the 
benefit of a secured party, a responsible governmental entity may use revenue to pay the 
operation and maintenance costs of a qualifying project, including compensation to the 
responsible governmental entity for its services in operating and maintaining the 
qualifying project. The right to receive any payment is considered just compensation for 
the qualifying project. 
7.  Full faith and credit.  The full faith and credit of a governmental entity may not 
be pledged to secure any financing of the contracting person that was assumed by the 
governmental entity if the governmental entity assumes responsibility for the qualifying 
project. 
§2050-H.  Eminent domain 
At the request of a contracting person, a responsible governmental entity may 
exercise any power of eminent domain that it has to acquire any land or property interest 
to the extent that the responsible governmental entity dedicates the land or property 
interest to public use and finds that the action serves the public purpose of this chapter.  
Any amounts to be paid in an eminent domain proceeding must be paid by the contracting 
person. 
§2050-I.  Affected facilities 
1.  Cooperation.  A contracting person and each facility owner, including the owner 
of a public utility, a public service company or a cable television provider, whose 
facilities will be affected by a qualifying project shall cooperate fully in planning and 
arranging the manner in which the facilities will be affected. 
2.  Disruption of service.  A contracting person and the responsible governmental 
entity shall ensure that a facility owner whose facility will be affected by a qualifying 
project does not suffer a disruption of service as a result of the construction or 
improvement of the qualifying project. 
3.  Relocation of facilities.  A governmental entity possessing the power of eminent 
domain may exercise that power in connection with the relocation of facilities affected by 
a qualifying project or facilities that must be relocated to the extent that the relocation is 
necessary due to construction of, renovation to or improvements to a qualifying project, 
which includes construction of, renovation to or improvements to temporary facilities to 
provide service during the period of construction, renovation or improvement of the 
qualifying project. A governmental entity shall exercise its power of eminent domain to 
the extent required to ensure the owner of an affected facility does not suffer a disruption 
of service as a result of the construction, renovation or improvement of the qualifying 
project during construction, renovation or improvement or after the qualifying project is 
completed, renovated or improved. 
4.  Cost.  A contracting person shall pay any amount owed for the construction or 
relocation of facilities under this section. 
For the purposes of this section, "facility" means real estate and improvements used 
principally for commercial purposes. 
§2050-J.  Procurement guidelines 
1.  State procurement laws.  State procurement laws and rules and the 
interpretations of those laws and rules do not apply to a qualifying project unless 
specified in this chapter. 
2.  Professional services.  This chapter does not authorize a responsible 
governmental entity or a contracting person to obtain professional services except in 
accordance with this chapter. 
3.  Replacement of professionals.  Professionals identified in an interim agreement 
or comprehensive agreement, including the identified architect, engineer and builder, may 
not be substituted or replaced after a qualifying project is approved and the interim 
agreement or comprehensive agreement is executed without the written approval of the 
responsible governmental entity. 
SUMMARY 
This bill authorizes and establishes a framework for governmental entities to enter 
into agreements with private entities and persons to develop or operate qualifying 
projects, including, but not limited to, ferries, mass transit facilities, vehicle parking 
facilities, port facilities, power generation facilities, fuel supply facilities, oil or gas 
pipelines, water supply facilities, public works facilities, waste treatment facilities, 
hospitals, schools, medical facilities, nursing care facilities and recreational facilities.