2019 Tennessee Code
Title 54 - Highways, Bridges and Ferries
Chapter 6 - Public-Private Transportation Act
§ 54-6-105. Approval process.
(a) No private entity may develop, redevelop, or operate a transportation facility under this chapter without first obtaining approval of, and entering into a comprehensive agreement with, the responsible public entity pursuant to this section and § 54-6-110. The private entity may initiate the approval process by requesting approval pursuant to subsection (b).
(b) To request approval from the responsible public entity, the private entity shall provide the following material and information with respect to the transportation facility that the private entity proposes to develop, redevelop, or operate as a qualifying transportation facility:
(1) A topographic map (1:2,000 or other appropriate scale) indicating the location of the transportation facility;
(2) A description of the transportation facility, including the conceptual design of the facility and all proposed interconnections with other transportation facilities;
(3) The projected cost of the transportation facility and the proposed date for the beginning of development, redevelopment, and operation of the transportation facility;
(4) If applicable, a statement setting forth the method by which the private entity proposes to assist in securing all property interests required for the transportation facility, if any, including:
(A) The current owners and operators of the property needed for the transportation facility;
(B) The nature of the interest in the property to be acquired; and
(C) Any property that the responsible public entity is expected to be requested to condemn;
(5) Information relating to the current transportation plans, if any, of the state, region, and each affected jurisdiction, including information on how the proposed development, redevelopment, and operation of the transportation facility will address the needs of such plans by improving safety, reducing congestion, increasing capacity, enhancing economic efficiency, or any combination thereof;
(6) A list of all permits and approvals required for development, redevelopment, and operation of the transportation facility from local, state, or federal agencies and a projected schedule for obtaining the permits and approvals;
(7) A list of public utility facilities, if any, that will be crossed by the transportation facility and a statement of the plans of the private entity to accommodate such crossings;
(8) A statement setting forth the private entity's general plans for development, redevelopment, or operation of the transportation facility;
(9) A statement of the risks, liabilities, and responsibilities to be transferred or assigned to, or assumed by, the private entity for the development, redevelopment, or operation of the transportation facility, including revenue risk and any operation and maintenance; and
(10) Such additional material and information as the responsible public entity may reasonably request.
(c)
(1) If the proposed development, redevelopment, or operation of the transportation facility will utilize, connect to, interconnect with, or cross over the private property on which an existing transportation facility is located, then the private entity shall notify the existing transportation facility of its request for approval within fifteen (15) days of the private entity submitting its request for approval by furnishing written notice to the registered agent of the existing transportation facility on file with the secretary of state with the following information to the owner and operator of the existing transportation facility: a topographic map (1:2,000 or other appropriate scale) indicating the location of the proposed development, redevelopment, or operation; a description of the proposed development, redevelopment, or operation, including the conceptual design of the transportation facility and all proposed interconnections with, utilizations of, connections to, and crossings over the existing transportation facility; a statement of the plans of the private entity to accommodate the interconnections with, utilizations of, connections to, and crossings over the existing transportation facility; and a statement setting forth the private entity's general plans for the proposed development, redevelopment, or operation. No proprietary information, which is confidential pursuant to § 54-6-107, shall be furnished to the owner and operator of the existing transportation facility. The existing transportation facility may submit comments relating to the proposed development, redevelopment, or operation of the transportation facility to the responsible public entity within thirty (30) days after receiving a written notice from the private entity.
(2) The responsible public entity shall notify each affected jurisdiction that is not a responsible public entity of its receipt of a request for approval by furnishing a copy of the request to the governing body of the affected jurisdiction; except, that no proprietary information, which is confidential pursuant to § 54-6-107, shall be furnished to the affected jurisdiction. Each affected jurisdiction may submit comments relating to a proposed qualifying transportation facility to the responsible public entity within sixty (60) days after receiving a request for comments from the responsible public entity and indicate whether the facility will address the needs identified in the appropriate state, regional, or local transportation plan.
(d)
(1) Any request for approval submitted to the department shall also be submitted to and reviewed by the fiscal review committee of the general assembly pursuant to subdivisions (d)(2)-(4) prior to the department receiving, considering, evaluating, and accepting proposals from a private entity pursuant to § 54-6-106.
(2) The fiscal review committee shall have twenty (20) business days from receipt of request for approval to comment on the request.
(3) After this twenty-day period, the private entity may proceed to submit a proposal to the department pursuant to § 54-6-106.
(4) The fiscal review committee shall be provided a copy of the private entity's request for approval, including a description of the transportation facility, the projected cost and financial structure of the transportation facility, any impact on the debt capacity of the state, the proposed date for the beginning of development, redevelopment, and operation of the transportation facility, information relating to the current transportation plans, if any, of the state, region, and each affected jurisdiction, and any other information as may be requested by the committee; provided, that no proprietary information, which is confidential pursuant to § 54-6-107, shall be provided to the fiscal review committee.
(e) The responsible public entity may grant approval if it determines that the proposed development, redevelopment, or operation of the transportation facility pursuant to this chapter serves the public interest. The responsible public entity may determine that the proposed development, redevelopment, or operation of the transportation facility serves the public interest for purposes of this subsection (e) if:
(1) There is a public need for the transportation facility of the type the private entity proposes to operate as a qualifying transportation facility;
(2) Proceeding with the development, redevelopment, or operation of the transportation facility pursuant to this chapter is more beneficial than proceeding through other means of procurement available to the responsible public entity under title 6 or title 12, chapter 3;
(3) The proposed development, redevelopment, or operation provides sufficient benefits to the public when compared to substantially similar development, redevelopment, or operation of transportation facilities by the responsible public entity;
(4) Any revenue risk will be transferred to the private entity and any such transfer of revenue risk will be mitigated through provisions in the interim or comprehensive agreement;
(5) The qualified transportation facility contains a low or medium level of project delivery risk; provided, that if the facility contains a high level of project delivery risk, the facility serves the public interest for purposes of this subsection (e) if, in addition to meeting the other requirements of this subsection (e), the risks, liabilities, or responsibilities will be transferred or assigned to, or assumed by, the private entity in the event that issues arise with the development, redevelopment, or operation of the qualifying transportation facility;
(6) The risks, liabilities, and responsibilities transferred or assigned to, or assumed by, the private entity provide sufficient benefits to the public to not proceed with the development, redevelopment, or operation of the transportation facility through other means of procurement available to the responsible public entity under title 6 or title 12, chapter 3;
(7) The transportation facility and the proposed interconnections with existing transportation facilities are compatible with the existing transportation plan for the state, region, and affected jurisdictions;
(8) The estimated cost, choice of technology, developing, redeveloping, or operation plans, and proposed manner of financing the development, redevelopment, or operation are reasonable;
(9) The private entity's plans will result in the timely development, redevelopment, and operation of the transportation facility or their more efficient operation; and
(10) The private entity proposing the development, redevelopment, or operation is technically, managerially, and financially viable to carry out the proposal.
(f) For any project with an estimated cost of over fifty million dollars ($50,000,000), the responsible public entity also shall require the private entity to pay the costs for an independent audit of any and all cost estimates associated with the private entity's proposed development, redevelopment, or operation, as well as a review of all public costs and potential liabilities to which taxpayers could be exposed, including improvements to other transportation facilities that may be needed as a result of the proposed development, redevelopment, or operation, failure by the private entity to reimburse the responsible public entity for services provided, and potential risk and liability in the event the private entity defaults on the comprehensive agreement or on bonds issued for the project. This independent audit shall be conducted by an independent consultant selected by the responsible public entity, and all such information from the review shall be subject to public disclosure pursuant to § 10-7-503 or any other law; except, that no proprietary information, which is confidential pursuant to § 54-6-107, shall be subject to public disclosure.
(g) In connection with granting the approval, the responsible public entity shall set forth any reports that the private entity needs to file if the information or materials filed with the request change. Except for these reports, the private entity shall not be required to update the information or materials filed with the request.
(h) The responsible public entity may charge a reasonable fee to cover the costs of processing and reviewing a request for approval and may charge a reasonable annual fee to cover the costs of the performance of its duties under this chapter.
