A Survey of PPP Legislation Across the United States

STATE OR U.S. TERRITORY

PUBLIC-PRIVATE PARTNERSHIP LEGISLATION

ALABAMA

Authorizes private operation of toll roads, toll bridges, ferries and causeways. Ala. Code §§ 23-1-80 to 23-1-95 (2007).

ALASKA

Authorizes Knik Arm Bridge and Toll Authority to use PPPs to finance the design, construction, operation, and maintenance of the Knik Arm Bridge. Alaska Stat. §§ 19.75.111, .113, .211, .221, .330, .332, .334, .336, .338, .340, .241, .915, .920, and .980 (2007).

ARIZONA

Authorizes agreements with private entities relating to the construction and/or leasing of transportation facilities. Ariz. Rev. Stat. § 28-7701 (2007).

Disclosure Requirement—Agencies of the State arc required to annually prepare and make available to the public a regulatory agenda, which includes any privatization option and nontraditional regulatory approach being considered by the agency. Ariz. Rev. Stat. § 41-1021.02 (2007).

Michael Pikiel

Fulbright & Jaworski L.L.P.

Mr.Pikiel is a senior associate at Fulbright & Jaworski.

ARKANSAS

Authorizes public and charter schools to enter into PPPs involving lease-purchase agreements for the acquisition or construction of school buildings or related facilities. Ark. Code Ann. § 6-20-402 (2007).

Authorizes the Department of Information Systems ("DIS") to enter into PPPs to provide information technology services in certain instances. Ark. Code Ann. § 25-4- 102(d)(1)(C). The DIS may not provide services to the general public in competition with private sector communications providers. Ark. Code Ann. § 25-4-102(e)(2) (2007).

A Regional Mobility Authority of the State shall not sell a toll facility project to a private entity or enter into a lease for a toll facility or concession agreement related to a toll facility. 2007 Ark. ALS § 389,1.

Lillian Plata

Fulbright & Jaworski L.L.P.

Ms. Plata is an assocaiate at Fulbright & Jaworski.

CALIFORNIA

Authorizes the Department of Transportation and regional transportation agencies to enter into lease agreements with private entities for the construction and lease of public transportation projects. The program is limited to 2 projects in northern CA and 2 in southern CA until January 1, 2012. The statute also authorizes the use of high-occupancy toll lanes. Cal Sts & Hy Code §§ 143 and 149.7 (2007).

Authorizes the San Diego Association of Governments to undertake tolling and public-private partnership projects pursuant to value pricing and transit development programs specific to San Diego County, Interstate Highway Route 15 high-occupancy vehicle expressway, and the Sunol Grade segment of Interstate Highway Route 680 in Almeda and Santa Clara Counties. Cal Sts & Hy Code §§ 149-149.6 (2007).

Authorizes local governments to solicit proposals for and enter into PPPs to study, plan, design, construct, develop, finance, maintain, rebuild, improve, repair, and/or operate a variety of "fee-producing infrastructure projects." 2007 Cal. Stat. § 5956.4.

Gives priority to water supply infrastructure projects that include "public-private partnerships or cost-sharing arrangements that maximize public benefits." 2007 Cal. Stat. § 79205.10 (c).

COLORADO

Authorizes director of the Department of Human Services to accept proposals for the privatization of facilities for juvenile offenders. Col. Rev. Stat. § 19-2-411 (2006).

Establishes a college savings program that calls for PPPs with financial institutions to hold and manage individual college savings accounts. Col. Rev. Stat. § 23-3.1-301 (2006) (Legislative Declaration).

Creates Arkansas River water bank pilot program that authorizes the state engineer to delegate (only the) administration of water bank to a PPP. The PPP will be entitled to charge a transaction fee for deposits, withdrawals sufficient to cover its administration costs. Col. Rev. Stat. § 37-80.5-104 (2006).

The DOT may: solicit and consider proposals, enter into agreements, grant benefits, and accept contributions for public-private initiatives. Col. Rev. Stat. §§ 43-1-1201 to 1209 (2006).

The general assembly finds and declares that the department of transportation is in need of funds to invest in new infrastructure projects, including turnpikes, within the state transportation system, and public-private partnerships can provide the state with a new source of capital for such projects. Col. Rev. Stat. § 43-3-202.5 (2006).

Authorizes the board of county commissioners of a county to enter public-private initiatives for county highways and bridges on behalf of the county. Additionally, the board may privatize any county highway or bridge and charge a toll thereon. Col. Rev. Stat. § 43-2-219 (2006).

Authorizes the board of directors of the Denver Metropolitan Major League Baseball Stadium District to study, consider, and pursue opportunities for privatizing the costs of acquiring a stadium site, the costs of constructing a stadium, or the costs of operating a stadium in order to minimize the use of tax revenues. Includes contributions of money, goods, equipment and services from private sources; sale-leaseback agreements with private sources; public-private joint venture proposals; the sale or lease of the name of the stadium and its trademarks; the sale or lease of seat rights; the sale or lease of luxury suites; and the sale of long-term advertising, parking, and concession rights. Col. Rev. Stat. § 25.5-5-409 (2006).

DELAWARE

Authorizes the Transportation Department to enter into "innovative agreements with the private sector" in order to study, plan, design, construct, finance, operate, maintain, expand, lease, or repair transportation systems. Also establishes the Public-Private Initiatives Program Revolving Loan Fund, which provides public funds for the partial financing of the aforementioned projects. 2 Del. Laws §§ 2001-2012 (2007).

Authorizes the Clean Water Advisory Council to consider PPPs for aquatic infrastructure improvement. 29 Del. Laws § 8011(m) (2007).

FLORIDA

Authorizes distribution of tax receipts levied on persons engaged in business of severing phosphate rock from the soils or waters of the state for commercial use to certain defined rural areas in order to invest in infrastructure investments which may include PPPs to facilitate trade and economic development. Fla. Stat. §211.3103(5)(a) (2007).

Authorizes distributions of funds to certain defined rural areas in order to invest in PPPs for storm water systems, telecommunications facilities, transportation systems, nature-based tourism facilities and any other infrastructure necessary to facilitate trade and economic development. Fla. Stat § 288.0655

Establishes Rural Infrastructure Fund to use funds to make improvements/upgrades to authorized infrastructure (PPP facilities that are included in that list). Fla. Stat. § 288.0655(2)(b).

Authorizes the Transportation Administration Authority to receive, solicit, approve, and enter into PPPs for the building, operation, ownership, or financing of transportation facilities. Fla. Stat. § 334.30.

Pursuant to Florida Turnpike Law, the Florida Turnpike Enterprise is authorized to plan, develop, own, purchase, lease, or otherwise acquire, demolish, construct, improve, relocate, equip, repair, maintain, operate, and manage the Florida Turnpike System; to expend funds to publicize, advertise, and promote the advantages of using the turnpike system and its facilities; and to cooperate, coordinate, partner, and contract with other entities, public and private, to accomplish these purposes. Fla. Stat. § 338.2216.

Authorizes the Commuter Rail and Central Florida Regional Transportation Authority to receive or solicit proposals and enter into PPPs for the building, operation, ownership, or financing of transportation facilities within the jurisdiction of the authority. Fla. Stat. § 343.875.

Authorizes expressway, transportation, bridge, and toll authorities to receive or solicit proposals and enter into PPPs for the building, operation, ownership, or financing of transportation facilities, as well as new transportation facilities within the authority's jurisdiction. Fla. Stat. § 348.0004(a).

GEORGIA

Authorizes the Department of Transportation to utilize PPPs for transportation system projects. Ga. Code Ann. § 32-2-80.

Water Resources - The committee shall establish criteria for evaluation of the eligibility of any contractors bidding on privatizations. Ga. Code Ann. § 12-5-23.3.

GUAM

Authorizes the Board of Directors of the Jose D. Leon Guerrero Commercial Port to utilize a PPP for terminal operations, maintenance, and leasing of the land in the Port area. This includes leases of and permits to operate the existing buildings, operational machinery, vehicles, tools and equipment. 12 Guam Code Ann. § 10302 (2007).

Authorizes Guam Waterworks Authority to terminate certain contracts that interfere with a broad-scale PPP for the production, transmission, or treatment of wastewater, should one be adopted. 12 Guam Code Ann. § 14407 (2007).

HAWAII

Authorizes the Hawaii Community Development Authority to consider PPPs in the development and operation of the Kakaako cultural public market. HRS Div. 1, Tit. 13, Ch. 206E, Pt. II Note.

ILLINOIS

Creates and authorizes the Riverdale Development Authority to enter into PPPs to facilitate and promote the redevelopment of certain vacant and underutilized brownfield property and to enhance the economic value of the land. 70 Ill. Comp. Stat. 516/25(t).

Authorizes municipalities to enter into contracts "of every kind and nature" in order to acquire, construct, reconstruct, improve, enlarge, operate, maintain and repair any bridge within five miles of the corporate limits of the contracting municipality. 605 Ill. Comp. Stat. 5/10-802.

Authorizes municipalities to impose tolls and fees for use of bridges authorized under 605 Ill. Comp. Stat. 5/10-802. 605 Ill. Comp. Stat. 5/10-602(4)(1).

Authorizes the Chicago Park District to enter into contracts of any kind (including PPPs) in order to acquire, own, construct, equip, manage, control, maintain and operate parking lots, underground garages, and parking meters. 70 Ill. Comp. Stat. 1505/25.1.

Proposed legislation for privatizing the Illinois Lottery. Permits governor to sell or otherwise dispose of the State lottery upon the terms he sees fit. H.B. 1352, 2007 Gen. Assem., Reg. Sess.

Proposed legislation that would authorize the Illinois Department of Transportation and the Illinois State Toll Highway Authority to enter into PPPs for the development, operation, and financing of transportation facilities. 2007 Ill. Sen. Bill 378.

Proposed legislation for privatization of Midway Airport. 2006 Ill. Sen. Bill 2872.

Restriction on privatization of correctional facilities. The imposition of punishment on errant citizens through incarceration requires the State to exercise its coercive police powers over individuals and is thus distinguishable from privatization in other areas of government. 730 Ill. Comp. Stat. 140/2 (legislative findings-not law, but suggestive).

INDIANA

Authorizes the state or a political subdivision to utilize PPPs for the acquisition, planning, design, development, construction, repair, operation, management, maintenance, or financing of any public facility under a Board of Transportation agreement. Ind. Code Ann. §§ 5-23-1-3, 5-23-3-1, 5-23-3-2, and 5-23-4-1.

Authorizes the Transportation Authority to utilize PPPs to construct, maintain, repair, police, and operate toll road projects, public improvements, and arterial streets and roads. Ind. Code Ann. § 8-15-7-3-1 (2006).

Authorizes certain counties to utilize PPPs to develop and operate conference facilities. Ind. Code Ann. § 6-9-10-9.

The department (DOT) may, after issuing an order and receiving the governor's approval, determine that a state highway should become a tollway. After the order becomes effective, the department shall maintain and operate the tollway and levy and collect tolls as provided in IC 8-15-3 or enter into a public-private agreement with an operator with respect to the tollway. Ind. Code Ann. §§ 8-23-7-22 through 25.

KENTUCKY

Created the Kentucky Sports Authority to identify opportunities for private and public partnerships with respect to sporting activity infrastructure development. Ky. Rev. Stat. Ann. § 148.590(6)(c) (2006).

A state agency recommending privatization must disclose the financial and legal information relating to the project prior to approval from the Finance and Administration Cabinet. Ky. Rev. Stat. Ann. § 45A.551 (2006).

LOUISIANA

Authorizes local and regional economic development districts to establish PPPs and joint ventures for the benefit of the district. The districts may grant leases, rights of use, or other concessions in return for contributions of private at-risk capital for district projects. La. Rev. Stat. Ann. § 33:9039.108(6) (2007).

Authorizes the Louisiana Transportation Authority, parishes, and municipalities to utilize PPPs for the development, operation, and improvement of state highway and local transportation systems. La. Rev. Stat. Ann. § 48:2020(D), La. Rev. Stat. Ann. § § 48:2072(B) +(C).

MARYLAND

Establishes the Dredged Material Disposal Alternatives Program, which authorizes as to foster the development, construction, and operation of dredged material reuse facilities. Md. Ann. Code art. 83A, § 6-802(c)(2).

Establishes the Transportation PPP Program enabling municipalities to accept proposals from private entities for the development of new transportation facilities, as well as for the rehabilitation or expansion of existing facilities. Md. Regs. Code tit. 11 §7.06.01.

Authorizes a county or local educational agency to enter into PPPs involving shared use arrangements of one or more portions of one or more public school facilities in return for public school property enhancement, revenue, or both. Md. Regs. Code tit. 23 § 3.05.05.

Transportation Authority - The Authority may not enter into a PPP agreement in which the total amount paid to the Authority exceeds $150,000,000 until the general assembly has approved the deal. 2007 Md. Laws § 383.

MdTA has the power to enter into Transportation Public-Private Partnership agreements to allow private entities to acquire, finance, construct and/or operate a new transportation facilities project or the major rehabilitation/expansion of an existing transportation facility as described in Section III "Transportation Facilities." The MdTA shall consider entering into Transportation Public-Private Partnership agreements which demonstrate the ability to meet emerging transportation requirements of the State by allowing needed projects to be completed in a more timely or cost-effective manner than otherwise might be possible using traditional sources of public financing. MD PPP Guidance. Md. Regs. Code tit. Transp. Article, § 4-205 and § 4-312,

MASSACHUSETTS

Creates the Wireless and Broadband Development Council, charged with facilitating "the development of private, joint public-private or public initiatives that afford open, competitive, content neutral services accessible via multiple carriers." ALM GL ch. 40J, § 6B.

Regulation of privatization contracts - The general court declares that using private contractors to provide public services formerly provided by state employees does not always promote the public interest. Mass. Ann. Laws ch. 7, § 52 (2007).

Requirements for privatization contracts (e.g. the agency shall prepare a specific written statement of the services proposed to be the subject of the privatization contract, every privatization contract shall contain provisions requiring the contractor to offer available employee positions pursuant to the contract to qualified regular employees of the agency, etc). Mass. Ann. Laws ch. 7, § 54 (2007).

MINNESOTA

Authorizes the Department of Transportation Commissioner to consider PPPs in order to meet the transportation needs of the department's metropolitan district between the years 2001 and 2020. Minn. Stat. § 174.03(6)(a) (2006).

A road authority may solicit or accept proposals from and enter into development agreements with private operators for developing, financing, designing, constructing, improving, rehabilitating, owning, and operating toll facilities wholly or partly within the road authority's jurisdiction. Minn. Stat. Ann. §§ 160.84 - 160.93 (2006).

MISSISSIPPI

Department of Human Services or the Executive Director of Human Services shall not be authorized to delegate, privatize or otherwise enter into a contract with a private entity for the operation of any office, bureau or division of the department, as defined in Section 7-17-11, without specific authority to do so by general act of the Legislature. Miss. Code Ann. § 43-1-3 (2007).

MISSOURI

Missouri PPP Transportation Act, which encourages PPPs for the financing, development, and/or operation of bridges located across the boundaries of Illinois and Missouri. HB Bo. 1380 93rd Gen. Assembly.

The general assembly declares that the creation of transportation corporations by private parties in cooperation with the commission is essential to the continued economic growth of this state, is in the public interest, and will promote the health, safety and general welfare of the citizens of this state by securing for them expanded and improved transportation facilities and systems. Mo. Rev. Stat. §§ 238.300-238.367.

Authorizes the Director of the Department of Natural Resources Energy Conservation Projects to enter into PPPs with financial institutions, performance contracting vendors, and energy utilities and providers, among others, in order to further the implementation of energy conservation projects. Mo. Rev. Stat. § 640.676 (2006).

The Department of Transportation is prohibited from contracting with private entities or vendors to operate truck stops, fueling stations, convenience stores or restaurants on or near interstate public rest areas. The department shall examine and research programs which have phased out interstate public rest areas and instead have implemented a public/private partnership with designated interstate rest exits. Mo. Rev. Stat. § 226.003(2007).

MONTANA

Establishes the Family Education Savings Act, which authorizes the utilization of PPPs in creating depositories for individuals' post-secondary education savings accounts. Mont. Code Ann. § 15-62-102 (2005).

NEBRASKA

Encourages PPPs in the development of airline properties and facilities and in the conduct of intrastate commercial airline service. Neb. Rev. Sat. Ann. § 3-802(7) (2007).

NEVADA

A person may submit a request to a public body to develop, construct, improve, maintain or operate, or any combination thereof, a transportation facility. Nev. Rev. Stat. §§ 338.161 to 338.168.

NEW HAMPSHIRE

Authorizes municipalities to issue bonds or notes for purposes of economic development, including PPPs that involve capital improvements, loans, and guarantees. N.H. Rev. Stat. Ann. § 33:3 (2007).

Specifically authorizes PPPs with respect to financing the development, construction, reconstruction, renovation, improvement, and acquisition of broadband infrastructure in areas that are not served by an existing broadband carrier or provider that would be provided at a fee to broadband carriers that provide broadband services. N.H. Rev. Stat. Ann. § 33:3-g (2007).

NEW JERSEY

Authorizes the commissioner of the Department of Transportation to enter into PPPs for the development of demonstration projects. The commissioner is also given broad powers with respect to programs to foster efficient and economic transportation services in the state. N.J. Stat. Ann. §§ 27:1A-5, 27:1D-3 (2007).

Proposed legislation that would authorize the state to lease out the operations of the New Jersey Turnpike and the Garden State Parkway to private companies. N.J. Sen. Bill. 2539 (Feb. 8, 2007).

NEW MEXICO

Authorizes the New Mexico Sports Authority to identify opportunities for private and public partnerships with respect to sports activity infrastructure. N.M. Stat. Ann. § 9-15B-5 (2007).

NEW YORK

Establishes a food and agriculture industry development program, authorizing the commissioner to enter into PPPs for new product development, alternative production, processing, distribution and marketing technologies. N.Y. Agr. & M § 297.4 (2007).

Pending legislation that would authorize the Department of Transportation, the Thruway Authority and the Metropolitan Transportation Authority (MTA) to enter into transportation development partnerships with public and/or private entities. N.Y. Sen. Bill. 6459 (Jan. 20, 2006).

NORTH CAROLINA

Authorizes the trustees of community colleges to enter into PPPs and lease community college land in the construction of new facilities that will be jointly owned and used by the private developer and the college. N.C. Gen. Stat. §115D-20(13) (2007).

The NC Turnpike Authority has the authority to enter into partnership agreements with the Department of Transportation, agreements with political subdivisions of the State, and agreements with private entities, and to expend such funds as it deems necessary, pursuant to such agreements, for the purpose of financing the cost of acquiring, constructing, equipping, operating, or maintaining any Turnpike Project. N.C. Gen. Stat. §§ 136-89.180 through 136-89.198 (2007).

OREGON

Establishes a PPP research and development program enabling the Department of Transportation to enter into agreements aimed at developing products for market that may help in maintaining and preserving the state highways or improving highway safety. Or. Rev. Stat. § 184.631 (2005).

Gives the Department of Transportation authority under the Oregon Innovative Partnerships Program to engage in PPPs for the planning, acquisition, financing, development, design, construction, reconstruction, replacement, improvement, maintenance, management, repair, leasing and operation of transportation projects. Or. Rev. Stat. §§ 367.800 - 367.824.

The Legislative Assembly finds that because public funding sources are not providing the state with sufficient funds to meet all of its transportation needs, private funding should be encouraged as an additional source of funding for transportation projects and facilities. Or. Rev. Stat. §§ 383.001 - § 383.019.

To promote access to broadband services for all Oregonians, the Legislative Assembly establishes a goal to remove barriers to PPPs in areas where the private sector cannot justify telecommunication infrastructure investments. Or. Rev. Stat. §759.016.

PENNSYLVANIA

Alternative Fuels Incentive Act: Authorizes the use of funds to support state public or private partnerships with postsecondary institutions and private sector organizations for research and development of alternative energy power sources. 73 Pa. Stat. Ann. § 1647.5 (2006).

Pending legislation proposing a 30-year PPP and lease agreement for the Pennsylvania Turnpike. Pa. H. Bill. 3075 (Oct. 25, 2006).

PUERTO RICO

Creates the Puerto Rico Highway and Transportation Authority and empowers it to contract with private entities for the design, construction, operation and maintenance of new highways, bridges, avenues, expressways and ancillary transit facilities. 9 PR. Laws Ann. § 2002, § 2004a(1) (2004).

RHODE ISLAND

Authorizes the 1-195 Redevelopment Board to sell, lease and/or enter into PPPs for the redevelopment of the "project area," which is bounded by Pine Street, Chestnut Street, Clifford and Foster Streets. Stipulates, however, that no property within the freeway line shall be transferred to the Board for sale, lease, or utilization pursuant to a PPP until the project area becomes available for redevelopment pursuant to the plan. R.I. Gen. Laws § 37-22-4, § 37-22-6 (2007).

SOUTH CAROLINA

Authorizes the Department of Transportation to enter into agreements with private entities to finance the construction and maintenance of highways, roads, streets, and bridges. S.C. Code Ann. § 57-3-200 (2006).

Department of Parks - Before the department may enter into a final contract to privatize all or a portion of Cheraw State Park or Hickory Knob State Park, approval of the majority of the General Assembly must be obtained, in addition to the approval of the State Budget and Control Board. 2007 S.C. H. Bill. 3620 (2007).

TENNESSEE

Tennessee Tollway Act, authorizes the Department of Transportation to utilize PPPs in the development and operation of tollways and toll facilities. Tn. Sen. Bill 1152 (Tenn. 2007)(section 8).

TEXAS

Establishes the Southeast Texas Biotechnology Park as a PPP where both public and private entities contribute to the development, funding, and operation of the park. Tex. Gov't Code Ann. § 488.006 (2007).

Empowers the Department of Transportation to authorize private entities to finance, plan, construct, and operate facilities that are part of the Trans-Texas Corridor, including rail facilities. In addition, the Department may lease property on the Corridor to any public or private entity. Texas Trans. Code § 227.023.

Authorizes local transportation authorities to enter into leases, operating agreements, service agreements, licenses, franchises, and similar agreements with private entities. In addition, it enables authorities to enter into agreements with private entities for the research, acquisition, design, financing, construction, maintenance, repair, operation, extension, or expansion of a transportation project. Texas Trans. Code § 370.033,370.302.

The DOT may enter into a comprehensive development agreement with a private entity to design, develop, finance, construct, maintain, repair, operate, extend, or expand a toll project, facilities on TX-Trans Corridor, state highway improvements, etc. TX. Transp. Code Ann. Ch. 223.201; TX Transp. Code Ann. Ch. 227 (2007).

Provides for a two-year moratorium on a DOT and local toll project entities imposing a toll on any portion of a state highway that previously provided free lanes with many exemptions. Also provides a two-year moratorium on the Trans-Texas superhighway project. TX Transp. Code Ann. Ch. 223.210.

One or more municipalities, one or more counties, a combination of municipalities and counties, or a private group or combination of individuals in this state may pay all or part of the expenses of studying the cost and feasibility and any other expenses relating to the use of private participation under Subchapter E, Chapter 223. TX. Transp. Code Ann. Ch 228. (2007)

An authority [Regional Mobility Authority], through its board, may: enter into leases, operating agreements, service agreements, licenses, franchises, and similar agreements with a public or private party. TX Transp. Code Ann. Ch. 370. (2007)

UTAH

Authorizes the Department of Transportation to enter into tollway development agreements with private entities for the study, formulation, design, financing, acquisition, construction, reconstruction, maintenance, repair, operation, extension, or expansion of tollway facilities. Utah Code Ann. § 72-6-203 (sec also §72-6-118) (2007).

VIRGINIA

Authorizes the CIO of the Virginia Information Technologies Agency to enter into PPPs to finance or implement information technology programs and projects. Va. Code Ann. § 2.2-2007 (2007).

Authorizes localities to utilize PPPs to introduce, build, maintain and operate sewerage and water purification systems. This includes contracts to provide meter reading, billing and collections, leak detection, meter replacement and any related customer service functions. Va. Code Ann. §§ 15.2-2117, 15.2-5114 (2007).

Authorizes the Department of Transportation to utilize PPPs for the development, operation, and maintenance of transportation facilities. Va. Code Ann. § 56-556 (2007).

Authorizes the use of PPPs with respect to education facilities, technology infrastructure and other public infrastructure and government facilities. Va. Code Ann §§ 56-575.2-56-575.16 (2007).

Authorizes certain counties, cities, towns, electric commissions and boards, industrial development authorities, and economic development authorities to utilize PPPs to offer "qualifying communications services." These services include, but are not limited to, high-speed data service and internet access service. Va. Code Ann. § 56-484.7:1 (2007).

WASHINGTON

Authorizes "public transportation benefit areas" to utilize PPPs to operate "passenger-only" ferry services and to design, build, improve on and construct such services. 2007 Wash. Laws § 36.57A.200.