48-02.1 Infrastructure Development by Private Operators
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<![CDATA[CHAPTER 48-02.1INFRASTRUCTURE DEVELOPMENT BY PRIVATE OPERATORS48-02.1-01. Definitions. As used in this chapter, unless the context or subject matterotherwise requires:1."Build, operate, and transfer facility" means a build, operate, and transfer fee-based<br>facility constructed, improved, or rehabilitated and afterward operated by a private<br>operator who holds title to the facility subject to a development agreement that<br>includes a provision that title will be transferred or revert to the public authority on<br>expiration of an agreed term.2."Build, transfer, and operate facility" means a build, transfer, and operate fee-based<br>facility constructed, improved, or rehabilitated by a private operator who:a.Transfers the interest it may have in the facility to the public authority before<br>operation begins; andb.Operates the fee-based facility for an agreed term pursuant to a lease,<br>management, or concession agreement.3."Development agreement" means a written agreement by and between a public<br>authority and a private operator which memorializes the parties' agreement with<br>respect to the construction, improvement, rehabilitation, ownership, or operation of a<br>fee-based facility.A development agreement must satisfy the requirements ofsection 48-02.1-03.4."Fee-based facility" means a facility that provides a service in which the charge is<br>based on the level of service by users or a rental fee paid by a public authority. The<br>facility may be a library, city hall, and an appurtenant building, a water or sewage<br>treatment plant, or other public improvement; land lying within applicable rights of<br>way; and other appurtenant rights or hereditaments that together comprise a project<br>for which a private operator is authorized to operate or own and impose fees or<br>derive a rent as expressed in the development agreement.5."Private operator" means a private person, a corporation or partnership, a<br>cooperative or unincorporated association, a joint venture or consortium that<br>constructs, improves, rehabilitates, owns, leases, operates, or manages a fee-based<br>facility subject to this chapter. The term includes related parties and entities that<br>together perform some or all of these functions for the same facility.6."Public authority" means the state subject to legislative authority, a county, township,<br>or city when ownership of or jurisdiction over a fee-based facility has been tendered<br>to and accepted by said authority.48-02.1-02.Private operators.Notwithstanding any other provision of law, privateoperators may construct, improve, rehabilitate, own, lease, manage, and operate fee-based<br>facilities subject to the terms of this chapter. Private operators may mortgage, grant security<br>interests in, and pledge their interests in, for a period not to exceed the length of the development<br>agreement:1.Fee-based facilities and their components;2.Development, leases and concessions, and other related agreements; and3.Income, profits, and proceeds of the fee-based facility.Page No. 148-02.1-03.Public authority may enter into development agreement.A publicauthority may solicit or accept proposals from private operators for the constructing, improving,<br>rehabilitating, operating, managing, and owning of a fee-based facility that will be situated in an<br>area subject to the public authority's jurisdiction. After a hearing, the public authority may accept<br>a proposal that it determines to be in the public interest. A public authority may negotiate and<br>enter into a development agreement with any private operator.48-02.1-04. Contents of development agreements. A development agreement for afee-based facility entered into pursuant to this chapter may provide for private ownership of the<br>facility without reversion of title; for operating the facility under lease or management contract; for<br>build, operate, and transfer facilities or build, transfer, and operate facilities; or any other form of<br>ownership or operation considered advisable by the public authority. A development agreement<br>may permit the private operator to:1.Assemble funds from any available source, including federal, state, and local grants,<br>bond revenues, contributions, and pledges; and2.Incorporate related improvements into the fee-based facility, subject to requirements<br>of state and federal law.A development agreement may also include grants of title, easements, rights of way, and<br>leasehold estates that are necessary to the fee-based facility.In addition, a developmentagreement may authorize the private operator to charge variable-rate fees based on time of day,<br>characteristics of services, or other factors and measurement methods considered significant by<br>the public authority for the particular facility.48-02.1-05. Right-of-way acquisition. Private operators may acquire right of way andproperty by donation, lease, or purchase.When necessary for the construction, alteration,addition, extension, or improvement of any project under this chapter, a public authority may<br>acquire, subject to chapter 32-15, any real or personal property by the law of eminent domain of<br>this state and may lease the property or right of way to a private operator.48-02.1-06. Lease term. A lease for public facilities must be for terms of no more thanfifty years and must be reviewed and may be revised every five years.48-02.1-07. Application of other law. This chapter does not excuse private operatorsof fee-based facilities from the necessity of obtaining environmental, navigational, design, or<br>safety approvals that would be required if the facility were constructed or operated by a public<br>body.48-02.1-08. Public authority may facilitate projects.1.A public authority may exercise any power possessed by it with respect to the<br>development and construction of infrastructure projects to facilitate the development<br>and construction of infrastructure projects under this chapter.2.A public authority may provide services for which it is reimbursed with respect to<br>preliminary planning, planning, environmental certification, and preliminary design of<br>infrastructure projects.48-02.1-09.Development agreements - Mandatory provisions.A developmentagreement must require:1.That the plans and specifications for the fee-based facility satisfy the public<br>authority's standards of construction for infrastructure of the same functional<br>classification;Page No. 22.For fee-based facilities to be incorporated into the existing infrastructure, that any<br>applicable department or authority review and approve the facility to the same extent<br>as it would for a similar publicly constructed facility;3.That, after public notice, the private operator manage and operate a fee-based<br>facility in cooperation with the applicable public authority and subject to any bylaws<br>that the public authority and the private operator may from time to time mutually<br>agree upon;4.That the fee-based facility be subject to regular safety inspections by the applicable<br>public authority;5.That the anticipated fees, rental income, and revenues from the operation of the<br>facility, or other sources of funding, or any combination thereof, be sufficient to pay<br>the maintenance and operation costs for the facility, and principal of and interest on<br>any evidence of indebtedness to finance the facility; and6.Any other provisions negotiated by the parties.48-02.1-10. Cost recovery. Development agreements entered into under this chaptermay authorize private operators of fee-based facilities to impose a fee-based charge for the use<br>of the facility and must require that the fee revenues be applied:1.To repayment of indebtedness incurred for the fee-based facility;2.To lease or fee-based concessions payments, if any;3.To costs associated with the operation, administration, and maintenance of the<br>facility; and4.To reasonable reserves for future capital outlays, if any.Residual fee revenues belong to the private operator, except for any royalties that may be<br>payable to a public authority under the development agreement or a related fee-based<br>concession agreement. After the expiration of any lease for a build, transfer, and operate facility,<br>or after title has reverted for a build, operate, and transfer facility, the public authority may<br>continue to charge a fee for the use of the facility.48-02.1-11.Joint authority.When a fee-based facility is or will be situated in thejurisdiction of more than one public authority, or is or will be an interstate or international facility,<br>the applicable authorities concerned may enter into a compact to delegate to one or more of the<br>authorities or a board appointed by the various authorities the authority to exercise all of the<br>powers, duties, and functions of the other authorities regarding the fee-based facility, including<br>the authority to negotiate and administer the development agreement and any related lease and<br>fee-based concession agreement. In addition, if all public authorities having jurisdiction over a<br>fee-based facility concur, title to or authority over the facility may be tendered to the agreed-upon<br>authority of choice, which may at its option accept the title of authority to administer pursuant to<br>the development agreement and this section.48-02.1-12. Property tax exemptions - Exemptions from bidding requirements.1.If approved by the governing body of the city, for property within city limits, or by the<br>governing body of the county, for property outside city limits, new fee-based facilities<br>are exempt from all ad valorem taxes.2.For portions of the project that do not involve contractor ownership, the construction,<br>improvement, rehabilitation, operation, and management of fee-based facilities by<br>private operators under this chapter are subject to all competitive bidding and<br>procurement requirements otherwise applicable under state and local laws, rules,Page No. 3and ordinances, if so determined by resolution of the governing body of the public<br>authority.48-02.1-13. Relation to other law. The rights, powers, and authority conferred by thischapter are in addition to other rights, powers, or authority private operators and public<br>authorities may have under other law. This chapter does not supersede or repeal, expressly or<br>by implication, any other law permitting the construction, improvement, rehabilitation, ownership,<br>and operation of fee-based facilities by private operators.Page No. 4Document Outlinechapter 48-02.1 infrastructure development by private operators]]>