56-566 - Comprehensive agreement.
§ 56-566. Comprehensive agreement.
A. Prior to developing and/or operating the qualifying transportationfacility, the private entity shall enter into a comprehensive agreement withthe responsible public entity. The comprehensive agreement shall, asappropriate, provide for:
1. Delivery of performance and payment bonds in connection with thedevelopment and/or operation of the qualifying transportation facility, inthe forms and amounts satisfactory to the responsible public entity;
2. Review of plans for the development and/or operation of the qualifyingtransportation facility by the responsible public entity and approval by theresponsible public entity if the plans conform to standards acceptable to theresponsible public entity;
3. Inspection of construction of or improvements to the qualifyingtransportation facility by the responsible public entity to ensure that theyconform to the standards acceptable to the responsible public entity;
4. Maintenance of a policy or policies of public liability insurance (copiesof which shall be filed with the responsible public entity accompanied byproofs of coverage) or self-insurance, each in form and amount satisfactoryto the responsible public entity and reasonably sufficient to insure coverageof tort liability to the public and employees and to enable the continuedoperation of the qualifying transportation facility;
5. Monitoring of the maintenance practices of the private entity by theresponsible public entity and the taking of such actions as the responsiblepublic entity finds appropriate to ensure that the qualifying transportationfacility is properly maintained;
6. Reimbursement to be paid to the responsible public entity for servicesprovided by the responsible public entity;
7. Filing of appropriate financial statements in a form acceptable to theresponsible public entity on a periodic basis;
8. Compensation to the private entity which may include a reasonabledevelopment fee, a reasonable maximum rate of return on investment, and/orreimbursement of development expenses in the event of termination forconvenience by the responsible public entity as agreed upon between theresponsible public entity and the private entity;
9. The date of termination of the private entity's authority and duties underthis chapter and dedication to the appropriate public entity; and
10. Guaranteed cost and completion guarantees related to the developmentand/or operation of the qualified transportation facility and payment ofdamages for failure to meet the completion guarantee.
B. The comprehensive agreement shall provide for such user fees as may beestablished from time to time by agreement of the parties. Any user feesshall be set at a level that takes into account any lease payments, servicepayments, and compensation to the private entity or as specified in thecomprehensive agreement. A copy of any service contract shall be filed withthe responsible public entity. A schedule of the current user fees shall bemade available by the private entity to any member of the public on request.In negotiating user fees under this section, the parties shall establish feesthat are the same for persons using the facility under like conditions exceptas required by agreement between the parties to preserve capacity and preventcongestion on the qualifying transportation facility. The execution of thecomprehensive agreement or any amendment thereto shall constitute conclusiveevidence that the user fees provided for therein comply with this chapter.User fees established in the comprehensive agreement as a source of revenuesmay be in addition to, or in lieu of, service payments.
C. In the comprehensive agreement, the responsible public entity may agree tomake grants or loans for the development and/or operation of the qualifyingtransportation facility from time to time from amounts received from thefederal government or any agency or instrumentality thereof.
D. The comprehensive agreement shall incorporate the duties of the privateentity under this chapter and may contain such other terms and conditionsthat the responsible public entity determines serve the public purpose ofthis chapter. Without limitation, the comprehensive agreement may containprovisions under which the responsible public entity agrees to provide noticeof default and cure rights for the benefit of the private entity and thepersons specified therein as providing financing for the qualifyingtransportation facility. The comprehensive agreement may contain such otherlawful terms and conditions to which the private entity and the responsiblepublic entity mutually agree, including, without limitation, provisionsregarding unavoidable delays or provisions providing for a loan of publicfunds for the development and/or operation of one or more qualifyingtransportation facilities.
E. The comprehensive agreement shall provide for the distribution of anyearnings in excess of the maximum rate of return as negotiated in thecomprehensive agreement. Without limitation, excess earnings may bedistributed to the Commonwealth's Transportation Trust Fund, to theresponsible public entity, or to the private entity for debt reduction orthey may be shared with appropriate public entities. Any payments under aconcession arrangement for which the Commonwealth is the responsible publicentity shall be paid into the Transportation Trust Fund.
F. Any changes in the terms of the comprehensive agreement, as may be agreedupon by the parties from time to time, shall be added to the comprehensiveagreement by written amendment.
G. Notwithstanding any contrary provision of this chapter, a responsiblepublic entity may enter into a comprehensive agreement with multiple privateentities if the responsible public entity determines in writing that it is inthe public interest to do so.
H. The comprehensive agreement may provide for the development and/oroperation of phases or segments of the qualifying transportation facility.
(1994, c. 855; 1995, c. 647; 2005, cc. 504, 562; 2006, c. 922.)