2023 Maryland Statutes › State Finance and Procurement › Division I - State Finance › Title 10A - Public-Private Partnerships › Subtitle 4 - Public-Private Partnership Agreements › Section 10A-401 - General Consideration

(a)    Whenever applicable, a public–private partnership agreement shall include the following provisions:
(1)    the method and terms for approval of any assignment, reassignment, or other transfer of interest related to the public–private partnership agreement;
(2)    the methods and terms for setting and adjusting tolls, fares, fees, and other charges related to the public infrastructure asset;
(3)    the method and terms for revenue–sharing or other sharing in fees or charges, in which the public participates in the financial upside of asset performance of the public infrastructure asset;
(4)    minimum quality standards, performance criteria, incentives, and disincentives;
(5)    operations and maintenance standards;
(6)    the rights for inspection by the State;
(7)    the terms and conditions under which the reporting agency may provide services for a fee sufficient to cover both direct and indirect costs;
(8)    provisions for oversight and remedies and penalties for default;
(9)    the terms and conditions under which the reporting agency originating the public–private partnership shall be responsible for ongoing oversight;
(10)    the terms and conditions for audits by the State, including the Office of Legislative Audits, related to the agreement’s financial records and performance;
(11)    the terms and conditions under which the public infrastructure assets shall be returned to the State at the expiration or termination of the agreement; and
(12)    requirements for the private entity to provide performance security and payment security in a form and in an amount determined by the responsible public entity, except that:
(i)    requirements for the payment security for construction contracts shall be in accordance with Title 17, Subtitle 1 of this article; and
(ii)    requirements for the amount of the payment security and any performance security in the form of a performance bond for a construction contract shall be based on the value of the respective construction elements of the public–private partnership agreement and not on the total value of the public–private partnership agreement.
(b)    (1)    A public–private partnership agreement may include a provision that, except as provided in paragraph (2) of this subsection, compensation may be provided for competing infrastructure developments that directly result in a documented revenue loss for the private entity in a public–private partnership.
(2)    Compensation may not be provided as a result of State infrastructure developments already in the State’s Capital Improvement Program or Consolidated Transportation Program planning documents at the time the public–private partnership agreement is executed, safety initiatives, transit projects, infrastructure improvements with minimal capacity increases, or infrastructure or transit service improvements for other transportation modes that are not the subject of the public–private partnership.
(c)    A public–private partnership agreement for a project involving road, highway, or bridge assets may not include a noncompete clause that would inhibit the planning, construction, or implementation of State–funded transit projects.