Maine LD 1298: An Act Relating to the Creation of Public-private Facilities and Infrastructure

LD 1298 (subjects: STATE GOVERNMENT , CONTRACTED SERVICES )

Official bill page at mainelegislature.org: http://www.mainelegislature.org/legis/bills/display_ps.asp?ld=1298&PID=1456&snum=127


Sponsors | Actions | Bill Text | Patterns of Support


Sponsors

Principal Sponsor: Rep. Karleton Ward of Dedham: (R – District 131) — e-mail | Facebook

7 Cosponsors:

Actions

Chamber

Action
4/9/2015 House Committee on State and Local Government suggested and ordered printed.
The Bill was REFERRED to the Committee on STATE AND LOCAL GOVERNMENT.
Sent for concurrence. ORDERED SENT FORTHWITH.
4/9/2015 Senate On motion by Senator Whittemore of Somerset, REFERRED to the Committee on State and Local Government, in concurrence.
6/30/2015 Senate CARRIED OVER to any Special or Regular Session of the 127th Legislature pursuant to Joint Order HP 992. in concurrence
6/30/2015 House Carried over to any special and/or regular session of the 127th Legislature pursuant to Joint Order HP 992.
6/30/2015 Senate CARRIED OVER to any Special or Regular Session of the 127th Legislature pursuant to Joint Order HP 992. , in concurrence.
3/22/2016 House Reports READ.
On motion of Representative MARTIN of Sinclair, the Majority Ought Not to Pass Report was ACCEPTED.
ROLL CALL NO. 504
(Yeas 76 – Nays 67 – Absent 8 – Excused 0)
Sent for concurrence. ORDERED SENT FORTHWITH.
3/23/2016 Senate Reports READ
On motion by Senator MASON of Androscoggin Minority Ought to Pass As Amended Report ACCEPTED In NON-CONCURRENCE

Roll Call Ordered Roll Call Number 540 Yeas 18 – Nays 13 – Excused 3 – Absent 0 PREVAILED
READ ONCE

Committee Amendment “A” (H-575) Roll Call Number 540 Yeas 18 – Nays 13 – Excused 3 – Absent 0 READ and ADOPTED

Under suspension of the Rules, READ A SECOND TIME PASSED TO BE ENGROSSED AS AMENDED BY Committee Amendment “A” (H-575) In NON-CONCURRENCE
Ordered sent down forthwith for concurrence.
3/24/2016 House The House INSISTED on ACCEPTANCE of the Majority Ought Not to Pass Report.
ORDERED SENT FORTHWITH.
3/28/2016 Senate On motion by Senator WHITTEMORE of Somerset The Senate ADHERED To ACCEPTANCE of Minority OUGHT TO PASS AS AMENDED Report AND PASSAGE TO BE ENGROSSED AS AMENDED BY Committee Amendment “A” (H-575) In NON-CONCURRENCE
Placed in Legislative Files (DEAD).

Bill Text

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An Act Relating to the Creation of Public-private Facilities and Infrastructure

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.

Patterns of Support

Pattern of Cosponsorship by Region:

Pattern of Cosponsorship by Gender:

Pattern of Cosponsorship by Party:

Pattern of Cosponsorship by Campaign Finance Classification:

Note: Maine Clean Elections Act (MCEA) Qualified candidates only accept a small dollar value of initial contributions early in their campaigns, pledge not to accept further campaign contributions from private sources, and receive public funding for their campaigns. MCEA Non-Qualified candidates choose not to obtain public funding and instead are free to accept campaign contributions from individuals, party committees, political action committees and business sources.


This information about LD 1298 was last updated on 2016-05-12.
The Open Maine Politics website is in a beta release and results should not be taken as definitive. Please visit the official website of the Maine State Legislature for entirely verifiable information.

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