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H 4565
Session 115 (2003-2004) 

H 4565 General Bill, By Herbkersman, Bailey and Rice
 A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING ARTICLE 5,
 CHAPTER 23, TITLE 59 SO AS TO ENACT THE PUBLIC-PRIVATE EDUCATION FACILITIES
 AND INFRASTRUCTURE ACT OF 2004; TO DEFINE CERTAIN TERMS; TO PROVIDE FOR THE
 PREREQUISITES FOR THE OPERATION OF A QUALIFYING PROJECT; TO PROVIDE THE
 INFORMATION THAT MUST ACCOMPANY A REQUEST FOR APPROVAL OF A QUALIFYING PROJECT
 BY THE RESPONSIBLE PUBLIC ENTITY; TO PROVIDE FOR THE APPROVAL PROCESS AND WHEN
 A RESPONSIBLE PUBLIC ENTITY MAY GRANT APPROVAL OF THE ACQUISITION; TO PROVIDE
 THAT A PUBLIC ENTITY MAY ENTER INTO SERVICE CONTRACTS; TO PROVIDE THAT A
 PRIVATE ENTITY REQUESTING APPROVAL FROM A RESPONSIBLE PUBLIC ENTITY SHALL
 NOTIFY EACH AFFECTED LOCAL JURISDICTION, WHICH MAY SUBMIT COMMENTS FOR THE
 RESPONSIBLE PUBLIC ENTITY'S CONSIDERATION; TO PROVIDE FOR WHEN A PUBLIC ENTITY
 MAY DEDICATE A PROPERTY INTEREST FOR PUBLIC USE IN A QUALIFYING PROJECT; TO
 PROVIDE THE POWERS AND DUTIES OF THE OPERATOR OF THE QUALIFYING PROJECT; TO
 PROVIDE FOR THE SPECIFICATIONS OF THE COMPREHENSIVE AGREEMENT BETWEEN THE
 OPERATOR AND THE RESPONSIBLE PUBLIC ENTITY; TO PROVIDE THAT THE RESPONSIBLE
 PUBLIC ENTITY MAY OBTAIN FEDERAL, STATE, OR LOCAL ASSISTANCE FOR A QUALIFYING
 PROJECT THAT SERVES THE PUBLIC PURPOSE; TO PROVIDE FOR REMEDIES IN THE EVENT
 OF A MATERIAL DEFAULT BY THE OPERATOR; TO PROVIDE WHEN THE RESPONSIBLE PUBLIC
 ENTITY MAY EXERCISE THE POWER OF CONDEMNATION; TO PROVIDE FOR WHEN THE
 QUALIFYING PROJECT CROSSES A UTILITY; TO PROVIDE THAT POLICE OFFICERS HAVE
 POWERS AND JURISDICTION WITHIN THE LIMITS OF THE QUALIFYING PROJECT; TO
 PROVIDE THAT THIS ARTICLE IS NOT A WAIVER OF SOVEREIGN IMMUNITY; TO PROVIDE
 THAT THE SOUTH CAROLINA CONSOLIDATED PROCUREMENT CODE AND GUIDELINES DEVELOPED
 PURSUANT TO IT AND OTHER BUILDING CODES DO NOT APPLY WHEN THE STATE IS THE
 RESPONSIBLE PUBLIC ENTITY; AND TO PROVIDE THE PROCEDURES ACCORDING TO WHICH A
 RESPONSIBLE PUBLIC ENTITY MAY ENTER INTO A COMPREHENSIVE AGREEMENT.

   01/20/04  House  Introduced and read first time HJ-14
   01/20/04  House  Referred to Committee on Education and Public
                     Works HJ-15
   04/22/04  House  Committee report: Favorable Education and Public
                     Works HJ-18
   04/28/04  House  Amended HJ-111
   04/28/04  House  Debate interrupted HJ-112
   04/28/04  House  Debate adjourned HJ-113
   04/29/04  House  Requests for debate-Rep(s). Hamilton, Loftis,
                     Haskins, Tripp, Vaughn, and Leach HJ-23
   04/29/04  House  Requests for debate removed-Rep(s). Vaughn,
                     Haskins, Leach, and Hamilton HJ-27
   04/29/04  House  Read second time HJ-28
   04/29/04  House  Unanimous consent for third reading on next
                     legislative day HJ-28
   04/30/04  House  Read third time and sent to Senate HJ-2
   05/04/04  Senate Introduced and read first time SJ-5
   05/04/04  Senate Referred to Committee on Education SJ-5



VERSIONS OF THIS BILL

1/20/2004
4/22/2004
4/28/2004
4/29/2004



H. 4565

AMENDED

April 29, 2004

H. 4565

Introduced by Reps. Herbkersman, Bailey and Rice

S. Printed 4/29/04--H.

Read the first time January 20, 2004.

            

A BILL

TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING ARTICLE 5, CHAPTER 23, TITLE 59 SO AS TO ENACT THE PUBLIC-PRIVATE EDUCATION FACILITIES AND INFRASTRUCTURE ACT OF 2004; TO DEFINE CERTAIN TERMS; TO PROVIDE FOR THE PREREQUISITES FOR THE OPERATION OF A QUALIFYING PROJECT; TO PROVIDE THE INFORMATION THAT MUST ACCOMPANY A REQUEST FOR APPROVAL OF A QUALIFYING PROJECT BY THE RESPONSIBLE PUBLIC ENTITY; TO PROVIDE FOR THE APPROVAL PROCESS AND WHEN A RESPONSIBLE PUBLIC ENTITY MAY GRANT APPROVAL OF THE ACQUISITION; TO PROVIDE THAT A PUBLIC ENTITY MAY ENTER INTO SERVICE CONTRACTS; TO PROVIDE THAT A PRIVATE ENTITY REQUESTING APPROVAL FROM A RESPONSIBLE PUBLIC ENTITY SHALL NOTIFY EACH AFFECTED LOCAL JURISDICTION, WHICH MAY SUBMIT COMMENTS FOR THE RESPONSIBLE PUBLIC ENTITY'S CONSIDERATION; TO PROVIDE FOR WHEN A PUBLIC ENTITY MAY DEDICATE A PROPERTY INTEREST FOR PUBLIC USE IN A QUALIFYING PROJECT; TO PROVIDE THE POWERS AND DUTIES OF THE OPERATOR OF THE QUALIFYING PROJECT; TO PROVIDE FOR THE SPECIFICATIONS OF THE COMPREHENSIVE AGREEMENT BETWEEN THE OPERATOR AND THE RESPONSIBLE PUBLIC ENTITY; TO PROVIDE THAT THE RESPONSIBLE PUBLIC ENTITY MAY OBTAIN FEDERAL, STATE, OR LOCAL ASSISTANCE FOR A QUALIFYING PROJECT THAT SERVES THE PUBLIC PURPOSE; TO PROVIDE FOR REMEDIES IN THE EVENT OF A MATERIAL DEFAULT BY THE OPERATOR; TO PROVIDE WHEN THE RESPONSIBLE PUBLIC ENTITY MAY EXERCISE THE POWER OF CONDEMNATION; TO PROVIDE FOR WHEN THE QUALIFYING PROJECT CROSSES A UTILITY; TO PROVIDE THAT POLICE OFFICERS HAVE POWERS AND JURISDICTION WITHIN THE LIMITS OF THE QUALIFYING PROJECT; TO PROVIDE THAT THIS ARTICLE IS NOT A WAIVER OF SOVEREIGN IMMUNITY; TO PROVIDE THAT THE SOUTH CAROLINA CONSOLIDATED PROCUREMENT CODE AND GUIDELINES DEVELOPED PURSUANT TO IT AND OTHER BUILDING CODES DO NOT APPLY WHEN THE STATE IS THE RESPONSIBLE PUBLIC ENTITY; AND TO PROVIDE THE PROCEDURES ACCORDING TO WHICH A RESPONSIBLE PUBLIC ENTITY MAY ENTER INTO A COMPREHENSIVE AGREEMENT.

Amend Title To Conform

Be it enacted by the General Assembly of the State of South Carolina:

SECTION    1.    Chapter 23, Title 59 of the 1976 Code is amended by adding:

"Article 5

Public-Private Education Facilities and

Infrastructure Act of 2004

Section 59-23-510.    (A)    The General Assembly finds that:

(1)    there is a public need for timely acquisition, design, construction, improvement, renovation, expansion, equipping, maintenance, or operation of education facilities and other public infrastructure and government facilities within the State that serve a public need and purpose;

(2)    the public need may not be wholly satisfied by existing methods of procurement in which qualifying projects are acquired, designed, constructed, improved, renovated, expanded, equipped, maintained, or operated;

(3)    there are inadequate resources to develop new education facilities and other public infrastructure and government facilities for the benefit of citizens of the State, and there is demonstrated evidence that public-private partnerships can meet these needs by improving the schedule for delivery, lowering the cost, and providing other benefits to the public;

(4)    financial incentives exist under state and federal tax provisions that promote public entities to enter into partnerships with private entities to develop qualifying projects; and

(5)    authorizing private entities to acquire, design, construct, improve, renovate, expand, equip, maintain, or operate qualifying projects may result in the availability of these projects to the public in a more timely or less costly fashion, serving the public safety, benefit, and welfare.

(B)    An action pursuant to Section 59-23-540 serves the public purpose of this article if the action facilitates the timely acquisition, design, construction, improvement, renovation, expansion, equipping, maintenance, or operation of qualifying projects.

(C)    It is the intent of this article, among other things, to facilitate the bond financing provisions of the Economic Growth and Tax Relief Reconciliation Act of 2001 or other similar financing mechanisms, private capital, and other funding sources that support the acquisition, design, construction, improvement, renovation, expansion, equipping, maintenance, or operation of qualifying projects, so that financing for qualifying projects may be expanded and accelerated to improve and add to the convenience of the public and so that public and private entities may have the greatest possible flexibility in contracting with each other for the provision of the public services pursuant to this article.

(D)    This article must be liberally construed in conformity with the purposes set forth.

Section 59-23-520.    As used in this article, unless the context requires a different meaning:

(1)    'Affected local jurisdiction' means a county, city, or town in which all or a portion of a qualifying project is located.

(2)    'Commission' means the Public Service Commission.

(3)    'Comprehensive agreement' means the comprehensive agreement between the operator and the responsible public entity required by Section 59-23-590.

(4)    'Lease payment' means a form a payment, including a land lease, by a public entity to the operator for the use of a qualifying project.

(5)    'Material default' means a default by the operator in the performance of its duties pursuant to Section 59-23-580(E) that jeopardizes adequate service to the public from a qualifying project.

(6)    'Operator' means the private or other nongovernmental entity that is responsible for stages of a qualifying project, or a portion of it, including:

(a)    acquisition,

(b)    design,

(c)    construction,

(d)    improvement,

(e)    renovation,

(f)    expansion,

(g)    equipping,

(h)    maintenance, and

(i)        operation.

(7)    'Private entity' means a natural person, corporation, limited liability company, partnership, joint venture, or another private business entity.

(8)    'Public entity' means the State or an agency of the State; a county, city, town, or another political subdivision of the State; or a regional entity that serves a public purpose.

(9)    'Qualifying project' means:

(a)    an education facility, including, but not limited to:

(i)        a school building;

(ii)    a functionally related and subordinate facility or land to a school building, including a stadium or another facility primarily used for school events; and

(iii)    a depreciable property provided for use in a school facility that is operated as part of the public school system or as an institution of higher education;

(b)    a building or facility for principal use by a public entity;

(c)    improvements, together with equipment, necessary to enhance public safety and security of buildings to be principally used by a public entity;

(d)    utility, telecommunications, and other communications infrastructure; or

(e)    a recreational facility.

(10)    'Responsible public entity' means a public entity that may acquire, design, construct, improve, renovate, expand, equip, maintain, or operate the applicable qualifying project.

(11)    'Revenues' means user fees, lease payments, or other service payments generated by a qualifying project.

(12)    'Service contract' means a contract entered into between a public entity and the operator pursuant to Section 59-23-550.

(13)    'Service payments' means payments to the operator of a qualifying project pursuant to a service contract.

(14)    'State' means the State of South Carolina.

(15)    'User fees' means the rates, fees, or other charges imposed by the operator of a qualifying project for use of all or a portion of the qualifying project pursuant to the comprehensive agreement pursuant to Section 59-23-590.

Section 59-23-530.    A private entity seeking authorization pursuant to this article to acquire, design, construct, improve, renovate, expand, equip, maintain, or operate a qualifying project first shall obtain approval of the responsible public entity pursuant to Section 59-23-540. The private entity may initiate the approval process by requesting approval pursuant to Section 59-23-540(A) or the responsible public entity may request proposals or invite bids pursuant to Section 59-23-540(B).

Section 59-23-540.    (A)    A private entity may request approval of a qualifying project by the responsible public entity. The request must be accompanied by the following material and information unless waived by the responsible public entity:

(1)    a topographic map, 1:2,000 or other appropriate scale, indicating the location of the qualifying project;

(2)    a description of the qualifying project, including the conceptual design of the facility or a conceptual plan for the provision of services, and a schedule for the initiation of and completion of the qualifying project to include the proposed major responsibilities and timeline for activities to be performed by both the public and private entities;

(3)    a statement setting forth the method by which the operator proposes to secure necessary property interests required for the qualifying project. The statement shall include:

(a)    the names and addresses, if known, of the current owners of the property needed for the qualifying project;

(b)    the nature of the property interests to be acquired; and

(c)    property that the responsible public entity expects it will be requested to condemn;

(4)    information relating to the current plans for development of facilities to be used by a public entity that are similar to the qualifying project being proposed by the private entity, if any, of each affected local jurisdiction;

(5)    a list of permits and approvals required for the qualifying project from local, state, or federal agencies and a projected schedule for obtaining the permits and approvals;

(6)    a list of public utility facilities, if any, that will be crossed by the qualifying project and a statement of the plans of the operator to accommodate the crossings;

(7)    a statement setting forth the operator's general plans for financing the qualifying project including the sources of the operator's funds;

(8)    the names and addresses of the persons who may be contacted for further information concerning the request;

(9)    user fees, lease payments, and other service payments over the term of the comprehensive agreement pursuant to Section 59-23-590 and the methodology and circumstances for changes to the user fees, lease payments, and other service payments over time; and

(10)    additional material and information as the responsible public entity may reasonably request.

(B)    The responsible public entity may request proposals or invite bids from private entities for the acquisition, design, construction, improvement, renovation, expansion, equipping, maintenance, or operation of qualifying projects.

(C)(1)    The responsible public entity may grant approval of the acquisition, construction, improvement, renovation, expansion, maintenance, or operation of the education facility or other public infrastructure or government facility needed by a public entity as a qualifying project, or the design or equipping of a qualifying project acquired, constructed, improved, renovated, expanded, maintained, or operated, if the responsible public entity determines that the project serves the public purpose of this article. The responsible public entity may determine that the acquisition, design, construction, improvement, renovation, expansion, equipping, maintenance, or operation of the qualifying project as a qualifying project serves the public purpose if:

(a)    there is a public need for or benefit derived from the qualifying project of the type the private entity proposes as a qualifying project;

(b)    the estimated cost of the qualifying project is reasonable in relation to similar facilities; and

(c)    the private entity's plans will result in the timely acquisition, design, construction, improvement, renovation, expansion, equipping, maintenance, or operation of the qualifying project.

(2)    In evaluating a request, the responsible public entity may rely upon internal staff reports prepared by personnel familiar with the operation of similar facilities or the advice of outside advisors or consultants having relevant experience.

(D)    The responsible public entity may charge a reasonable fee to cover the costs of processing, reviewing, and evaluating the request, including without limitation, reasonable attorney's fees and fees for financial and other necessary advisors or consultants.

(E)    The approval of the responsible public entity is subject to the private entity's entering into a comprehensive agreement pursuant to Section 59-23-590 with the responsible public entity.

(F)    In connection with its approval of the qualifying project, the responsible public entity shall establish a date for the commencement of activities related to the qualifying project. The responsible public entity may extend the date from time to time.

(G)    The responsible public entity shall take appropriate action to protect confidential and proprietary information provided by the operator.

(H)    Nothing in this article or in a comprehensive agreement entered into pursuant to this article enlarges, diminishes, or affects the authority otherwise possessed by the responsible public entity to take action that would impact the debt capacity of the State.

Section 59-23-545.    Nothing contained in this article permits a local jurisdiction or public entity to exceed the constitutional debt limitations applicable to it. Any debt or obligation incurred by the private entity or operator pursuant to a comprehensive agreement in conjunction with the acquisition, design, construction, improvement, renovation, expansion, or equipping of a qualifying project permitted under this article shall be considered general obligation debt of the local jurisdiction or public entity regardless of how described for the purpose of determining the applicable constitutional debt limitation of that jurisdiction or entity if the local jurisdiction or public entity uses its ad valorem property taxing authority or pledges its full faith and credit to generate funding in order to meet all or any portion of its payment obligations under the comprehensive agreement.

Section 59-23-550.    In addition to authority otherwise conferred by law, a public entity may contract with an operator for the delivery of services to be provided as part of a qualifying project in exchange for service payments and other consideration as the public entity considers appropriate.

Section 59-23-560.    (A)    A private entity requesting approval from, or submitting a proposal to, a responsible public entity pursuant to Section 59-23-540 shall notify each affected local jurisdiction by furnishing a copy of its request or proposal to each affected local jurisdiction.

(B)    Each affected local jurisdiction that is not a responsible public entity for the respective qualifying project shall, within sixty days after receiving the notice, submit comments in writing on the proposed qualifying project to the responsible public entity and indicate whether the facility is compatible with the local comprehensive plan, local infrastructure development plans, the capital improvements budget, or other government spending plan. The comments must be considered by the responsible public entity before entering a comprehensive agreement with a private entity pursuant to Section 59-23-590.

Section 59-23-570.    A public entity may dedicate a property interest, including land, improvements, and tangible personal property, that it has for public use in a qualifying project if it finds that so doing will serve the public purpose of this article by minimizing the cost of a qualifying project to the public entity or reducing the delivery time of a qualifying project. In connection with the dedication of a property interest, a public entity may convey a property interest, subject to the conditions imposed by general law, to the operator subject to the provisions of this article, for consideration that the public entity may determine. The public entity's consideration may include, without limitation, the agreement of the operator to operate the qualifying project.

Section 59-23-580.    (A)    The operator has the power allowed by law generally to a private entity having the same form of organization as the operator and may acquire, design, construct, improve, renovate, maintain, expand, equip, or operate the qualifying project and collect lease payments, impose user fees, or enter into service contracts in connection with the use of the qualifying project.

(B)    The operator may own, lease, or acquire another right to use or operate the qualifying project.

(C)    Financing of the qualifying project may be in amounts and upon the terms and conditions as determined by the operator. The operator may issue debt, equity, or other securities or obligations, enter into sale and leaseback transactions and secure financing with a pledge of, security interest in, or lien on its property, including its property interests in the qualifying project.

(D)    In operating the qualifying project, the operator may:

(1)    make classifications according to reasonable categories for assessment of user fees; and

(2)    with the consent of the responsible public entity, make and enforce reasonable rules to the same extent that the responsible public entity may make and enforce rules with respect to similar facilities.

(E)    The operator shall:

(1)    acquire, design, construct, improve, renovate, expand, equip, maintain, or operate the qualifying project in a manner that is acceptable to the responsible public entity, according to the provisions of the comprehensive agreement pursuant to Section 59-23-590;

(2)    keep the qualifying project open for use by the members of the public as appropriate based upon the use of the facility after its initial opening upon payment of the applicable user fees, lease payments, or service payments; provided that the qualifying project may be temporarily closed because of emergencies or, with the consent of the responsible public entity, to protect the safety of the public or for reasonable construction or maintenance procedures;

(3)    maintain or provide by contract for the maintenance of the qualifying project if required by the comprehensive agreement;

(4)    cooperate with the responsible public entity in making best efforts to establish an interconnection with the qualifying project requested by the responsible public entity; and

(5)    comply with the provisions of the comprehensive agreement and a service contract.

(F)    Nothing prohibits an operator of a qualifying project from providing additional services for the qualifying project to public or private entities other than the responsible public entity as long as the provision of additional service does not impair the operator's ability to meet its commitments to the responsible public entity pursuant to the comprehensive agreement as provided for in Section 59-23-590.

Section 59-23-590.    (A)    Before acquiring, designing, constructing, improving, renovating, expanding, equipping, maintaining, or operating the qualifying project, the private entity shall enter into a comprehensive agreement with the responsible public entity. The comprehensive agreement shall provide for:

(1)    delivery of maintenance, performance, and payment bonds or letters of credit in connection with the acquisition, design, construction, improvement, renovation, expansion, equipping, maintenance, or operation of the qualifying project in the forms and amounts satisfactory to the responsible public entity;

(2)    review of plans and specifications for the qualifying project by the responsible public entity and approval by the responsible public entity if the plans and specifications conform to standards acceptable to the responsible public entity. This must not be construed to require the private entity to complete design of a qualifying project before the execution of a comprehensive agreement;

(3)    inspection of the qualifying project by the responsible public entity to ensure that the operator's activities are acceptable to the responsible public entity according to the provisions of the comprehensive agreement;

(4)    maintenance of a policy of public liability insurance, copies of which must be filed with the responsible public entity accompanied by proof of coverage, and self-insurance, in form and amount satisfactory to the responsible public entity and reasonably sufficient to insure coverage of tort liability to the public and employees and to enable the continued operation of the qualifying project;

(5)    monitoring of the practices of the operator by the responsible public entity to ensure that the qualifying project is properly maintained;

(6)    reimbursement to be paid to the responsible public entity for services provided by the responsible public entity;

(7)    filing of appropriate financial statements on a periodic basis; and

(8)    policies and procedures governing the rights and responsibilities of the responsible public entity and the operator in the event the comprehensive agreement is terminated or there is a material default by the operator. The policies and procedures must include conditions governing assumption of the duties and responsibilities of the operator by the responsible public entity and the transfer or purchase of property or other interests of the operator by the responsible public entity.

(B)    The comprehensive agreement must provide for user fees, lease payments, or service payments that may be established by agreement of the parties. A copy of a service contract must be filed with the responsible public entity. In negotiating user fees pursuant to this section, the parties shall establish payments or fees that are the same for persons using the facility under like conditions and that will not materially discourage use of the qualifying project. The execution of the comprehensive agreement or an amendment to it constitutes conclusive evidence that the user fees, lease payments, or service payments provided for comply with this article. User fees or lease payments established in the comprehensive agreement as a source of revenues may be in addition to, or instead of, service payments.

(C)    In the comprehensive agreement, the responsible public entity may agree to make grants or loans to the operator from amounts received from the federal, state, or local government or its agency or instrumentality.

(D)    The comprehensive agreement must incorporate the duties of the operator pursuant to this article and may contain other terms and conditions that the responsible public entity determines serve the public purpose of this article. Without limitation, the comprehensive agreement may contain provisions under which the responsible public entity agrees to provide notice of default and cure rights for the benefit of the operator and the persons specified in the comprehensive agreement as providing financing for the qualifying project. The comprehensive agreement may contain other lawful terms and conditions to which the operator and the responsible public entity mutually agree, including, without limitation, provisions regarding unavoidable delays or provisions providing for a loan of public funds to the operator to acquire, design, construct, improve, renovate, expand, equip, maintain, or operate one or more qualifying projects. The comprehensive agreement also may contain provisions where the authority and duties of the operator pursuant to this article must cease, and the qualifying project is dedicated to the responsible public entity or, if the qualifying project was initially dedicated by an affected local jurisdiction, to the affected local jurisdiction for public use.

(E)    Changes in the terms of the comprehensive agreement that may be agreed upon by the parties from time to time must be added to the comprehensive agreement by written amendment.

(F)    When a responsible public entity that is not an agency or authority of the State enters into a comprehensive agreement pursuant to this article, it shall submit a copy of the comprehensive agreement to the Auditor of Public Accounts within thirty days.

Section 59-23-600.    The responsible public entity may take action to obtain federal, state, or local assistance for a qualifying project that serves the public purpose of this article and may enter into contracts required to receive assistance. If the responsible public entity is a state agency, funds received from the state or federal government or its agency or instrumentality must be subject to appropriation by the General Assembly. The responsible public entity may determine that it serves the public purpose of this article for costs of a qualifying project to be paid, directly or indirectly, from the proceeds of a grant or loan made by the local, state, or federal government or its agency or instrumentality.

Section 59-23-610.    (A)    In the event of a material default by the operator, the responsible public entity may elect to assume the responsibilities and duties of the operator of the qualifying project, and shall succeed to the right, title, and interest in the qualifying project, subject to a lien on revenues previously granted by the operator to a person providing financing.

(B)    A responsible public entity having the power of condemnation pursuant to state law may exercise the power of condemnation to acquire the qualifying project in the event of a material default by the operator. A person who has provided financing for the qualifying project and the operator, to the extent of its capital investment, may participate in the condemnation proceedings with the standing of a property owner.

(C)    The responsible public entity may terminate, with cause, the comprehensive agreement and exercise other rights and remedies that may be available to it at law or in equity.

D)    The responsible public entity may make or cause to be made appropriate claims under the maintenance, performance, or payment bonds, or under the lines of credit required by Section 59-23-590(A)(1).

(E)    If the responsible public entity elects to take over a qualifying project pursuant to subsection (A), the responsible public entity may acquire, design, construct, improve, renovate, operate, expand, equip, or maintain the qualifying project, impose user fees, impose and collect lease payments for the use of the qualifying project, and comply with service contracts as if it were the operator. Revenues that are subject to a lien must be collected for the benefit of and paid to secured parties, as their interests may appear, to the extent necessary to satisfy the operator's obligations to secured parties, including the maintenance of reserves. The liens must be correspondingly reduced and, when paid off, released. Before payments to, or for the benefit of, secured parties, the responsible public entity may use revenues to pay current operation and maintenance costs of the qualifying project, including compensation to the responsible public entity for its services in operating and maintaining the qualifying project. The right to receive payment, if any, must be considered just compensation for the qualifying project. The full faith and credit of the responsible public entity must not be pledged to secure financing of the operator by the election to take over the qualifying project. Assumption of operation of the qualifying project may not obligate the responsible public entity to pay an obligation of the operator from sources other than revenues.

Section 59-23-620.    At the request of the operator, the responsible public entity may exercise any power of condemnation that it has under law for the purpose of acquiring lands or estates or interests to the extent that the responsible public entity finds that the acquisition serves the public purpose of this article. An amount to be paid in this condemnation proceeding must be paid by the operator.

Section 59-23-630.    The operator and each public service company, public utility, railroad, or cable television provider, whose facilities are to be crossed or affected shall cooperate fully with the other entity in planning and arranging the manner of the crossing or relocation of the facilities. An entity possessing the power of condemnation is expressly granted powers in connection with the moving or relocation of facilities to be crossed by the qualifying project or that must be relocated to the extent that the moving or relocation is made necessary or desirable by construction of, renovation to, or improvements to the qualifying project, including construction of, renovation to, or improvements to temporary facilities for the purpose of providing service during the period of construction or improvement. An amount to be paid for such crossing, construction, moving, or relocating of facilities must be paid for by the operator. If the operator and the public service company, public utility, railroad, or cable television provider not be able to agree upon a plan for the crossing or relocation, the commission may determine the manner in which the crossing or relocation is to be accomplished and damages due arising out of the crossing or relocation. The commission may employ expert engineers who shall examine the location and plans for the crossing or relocation, hear objections and consider modifications, and make a recommendation to the commission. The cost of the experts is to be borne by the operator. The determination must be made by the commission within ninety days of notification by the private entity that the qualifying project will cross utilities subject to the commission's jurisdiction.

Section 59-23-640.    Police officers of the State and of each affected local jurisdiction have the same powers and jurisdiction within the limits of the qualifying project as they have in their respective areas of jurisdiction and police officers have access to the qualifying project at any time for the purpose of exercising these powers and jurisdiction.

Section 59-23-650.    Nothing in this article may be construed as a waiver of the sovereign immunity of the State, a responsible public entity or an affected local jurisdiction or its officer or employee with respect to the participation in or approval of any part of the qualifying project or its operation including, but not limited to, interconnection of the qualifying project with another infrastructure or project. Counties, cities, and towns in which a qualifying project is located shall possess sovereign immunity with respect to its design, construction, and operation.

Section 59-23-660.    The South Carolina Consolidated Procurement Code, Chapter 35, Title 11 and interpretations, regulations, or guidelines developed pursuant to the South Carolina Consolidated Procurement Code and building codes, except those developed in accordance with this article when the State is the responsible public entity, do not apply to this article. However, a responsible public entity may enter into a comprehensive agreement only in accordance with procedures adopted by it as follows:

(1)    A responsible public entity may enter into a comprehensive agreement in accordance with procedures adopted by it that are consistent with procurement through competitive sealed bidding.

(2)    A responsible public entity may enter into a comprehensive agreement in accordance with procedures adopted by it that are consistent with the procurement of services other than professional services through competitive negotiation. The responsible public entity must not be required to select the proposal with the lowest price offer, but may consider price as one factor in evaluating the proposals received. A responsible public entity shall proceed in accordance with the procedures adopted by it pursuant to item (1) unless it determines that proceeding in accordance with the procedures adopted by it pursuant to this subdivision is likely to be advantageous to the responsible public entity and the public, based on (a) the probable scope, complexity or urgency of the project, or (b) risk sharing, added value, an increase in funding or economic benefit from the project that would not otherwise be available. When the responsible public entity determines to proceed according to the procedures adopted by it pursuant to this item, it shall state the reasons for its determination in writing. If a state agency is the responsible public entity, the approval of the Governor is required before the responsible public entity may enter into a comprehensive agreement pursuant to this item.

(3)    Nothing in this article authorizes or requires that a responsible public entity obtain professional services through a process except in accordance with procedures adopted by it that are consistent with the procurement of professional services through competitive negotiation.

(4)    A responsible public entity may not proceed to consider a request by a private entity for approval of a qualifying project pursuant to Section 59-23-540(A) until the responsible public entity has adopted and made publicly available procedures that are sufficient to enable the responsible public entity to comply with this article. These procedures must include provision for the posting and publishing of public notice of a private entity's request for approval of a qualifying project pursuant to Section 59-23-540(A) and a reasonable time period, to be no less than forty-five days, during which the responsible public entity will receive competing proposals pursuant to that subsection.

(5)    A responsible public entity that is a school board or a county, city, or town may enter into a comprehensive agreement pursuant to this article only with the approval of the local governing body."

SECTION    2.    This act takes effect upon approval by the Governor.

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Legislative Services Agency
h t t p : / / w w w . s c s t a t e h o u s e . g o v