2011 Louisiana Laws
Revised Statutes
TITLE 48 — Roads, bridges and ferries
RS 48:2084.6 — Public-private partnership projects; comprehensive agreement

§2084.6. Public-private partnership projects; comprehensive agreement

A. Prior to developing or operating the qualifying transportation facility, the private entity shall enter into a comprehensive agreement with the authority and responsible public entity. The comprehensive agreement shall provide for:

(1) Delivery of performance and payment bonds or other forms of completion guarantee in connection with the construction of or improvements to the qualifying transportation facility, in the forms and in amounts satisfactory to the authority.

(2) Review and approval of plans and specifications for the qualifying transportation facility by the authority and responsible public entity if the plans and specifications conform to established standards of the authority and responsible public entity.

(3) Inspection of construction or improvements to the qualifying transportation facility by the authority and responsible public entity to ensure conformance with engineering standards acceptable to the authority and responsible public entity.

(4) Maintenance of a policy or policies of public liability insurance certificates, which shall be provided to the responsible public entity, or maintenance of self-insurance, each in form and amount satisfactory to the authority and responsible public entity and sufficient to ensure liability coverage to the public and employees of the facility and to enable the continued operation of the qualifying transportation facility.

(5) Monitoring of the maintenance practices of the private entity by the authority and responsible public entity. The private entity shall take actions as the authority and responsible public entity finds appropriate to ensure that the qualifying transportation facility is properly maintained.

(6) Reimbursement to be paid to the authority and responsible public entity for services provided by the responsible public entity.

(7) Filing appropriate financial statements on a periodic basis.

(8) Compensation for the private entity submitting or responding to the proposal in a form and an amount satisfactory to the authority and responsible public entity, which may include a reasonable development fee and reimbursement of development expenses in the event of a termination for convenience by the responsible public entity.

(9) The date of termination of the private entity's authority and duties under this Chapter and dedication to the appropriate public entity.

B. The comprehensive agreement shall provide for user fees, lease payments, service payments, or the availability or other performance-related payments as may be established from time to time by agreement of the parties. User fees shall be set at a level which accounts for any lease payments, service payments, or other compensation to the private entity as specified in the comprehensive agreement. A copy of any lease or service contract shall be filed with the authority and responsible public entity and a schedule of user fees shall be made available by the private entity to any member of the public upon request. In negotiating user fees under this Section, the parties shall establish fees which are the same for persons using the facility under like conditions and shall not materially discourage use of the qualifying transportation facility. The execution of the comprehensive agreement or any amendment thereto shall constitute conclusive evidence that the user fees, lease payments, and service payments provided for in the agreement comply with the requirements of this Chapter. User fees or lease payments established in the comprehensive agreement as a source of revenues may be in addition to or in lieu of service payments.

C. The authority and responsible public entity may agree to participate with the private entity from time to time in amounts received by any agency or instrumentality of the federal government.

D. The comprehensive agreement shall incorporate the duties of the private entity under this Chapter and may contain other terms and conditions that the authority and responsible public entity determine serve the public purpose of this Chapter. Without limitation, the comprehensive agreement may contain provisions under which the authority agrees to provide notice of default and cure rights for the benefit of the private entity and the parties providing financing for the qualifying transportation facility. The comprehensive agreement may contain other lawful terms and conditions to which the private entity, the authority, and the responsible public entity mutually agree to, including provisions regarding unavoidable delays.

E. Any changes in the terms of the comprehensive agreement, as may be agreed upon by the parties, shall be added to the comprehensive agreement by written amendment.

F. Prior to the negotiation of the comprehensive agreement, the authority may enter into a pre-development agreement with the private entity proposing to develop or operate the facility or facilities. The pre-development agreement shall express the commitment of the authority that if it approves the transportation initiative which is the subject of the proposal, the authority shall negotiate a comprehensive agreement to implement such initiative with the private entity. A pre-development agreement may permit the private entity to commence preliminary activities, including project planning and development, advance right-of-way acquisition, preliminary design, conducting transportation and revenue studies and ascertaining the availability of financing for the proposed facility or facilities, establish the process and timing of the negotiation of the comprehensive agreement, and contain any other provisions the parties deem appropriate.

G. If a private entity submits a proposal under this Chapter relating to any highway, road, bridge, tunnel or overpass, or combination of such facilities that is subject to approval by more than one responsible public entity, the authority shall determine the process for reviewing and negotiating the proposal. Each responsible public entity shall retain its right to approve the proposal for the transportation facility and the comprehensive agreement. The authority shall be responsible for the coordination of the timing and the approval process for the proposal and negotiation of the comprehensive agreement. The authority may choose to designate another responsible public entity to carry out its responsibility to coordinate and negotiate this process if the authority determines, in writing, that it is in the public interest to do so.

H. The comprehensive agreement may provide for compensation for addition or improvements to the qualifying transportation facility upon conclusion of any franchise or concession.

I. In the event that a franchise or concession is terminated for public convenience after completion of the qualifying transportation facility, provision shall be made for compensating lenders and investors for their debt, equity, and lost opportunity. In the event a franchise or concession is terminated for operator default after completion of the qualifying transportation facility, provision shall be made to provide step-in rights or to otherwise make whole any project lenders on or prior to such termination.

Acts 2006, No. 304, §1.