2008 1st Extraordinary Session
By: Representatives McBride, Bell, Zuber
AN ACT TO CREATE A NEW SECTION TO BE CODIFIED AS SECTION 65-43-2, MISSISSIPPI CODE OF 1972, TO STATE LEGISLATIVE FINDINGS WITH REGARD TO THE CHAPTER OF LAW AUTHORIZING THE MISSISSIPPI TRANSPORTATION COMMISSION AND COUNTIES AND MUNICIPALITIES TO DESIGN, FINANCE, CONSTRUCT, OPERATE AND MAINTAIN TOLL ROADS AND TOLL BRIDGES AND TO CONTRACT WITH COMPANIES FOR SUCH PURPOSES; TO AMEND SECTION 65-43-3, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE MISSISSIPPI TRANSPORTATION COMMISSION AND COUNTIES AND MUNICIPALITIES TO GRANT CERTAIN RIGHTS IN LAND HELD BY SUCH GOVERNMENTAL ENTITIES TO THE COMPANIES WITH WHICH THEY CONTRACT FOR THE DESIGN, FINANCE, CONSTRUCTION, OPERATION AND MAINTENANCE OF TOLL ROADS AND BRIDGES; TO EXCEPT CERTAIN SUCCESSOR CONTRACTS ENTERED INTO WITH A COMPANY FROM THE REQUIREMENT THAT THE COMPANY MUST PROVIDE FOR THE DESIGN AND CONSTRUCTION OF A NEW TOLL ROAD OR TOLL BRIDGE PROJECT; TO PROVIDE THAT ANY RIGHT OR INTEREST IN LAND RESULTING FROM A CONTRACT BY A GOVERNMENTAL ENTITY WITH A COMPANY INVOLVING THE DESIGN, FINANCE, CONSTRUCTION, OPERATION AND/OR MAINTENANCE OF A TOLL ROAD OR BRIDGE IS NOT SUCH A RIGHT, TITLE OR INTEREST AS IS TAXABLE UNDER THE LAWS PROVIDING FOR AD VALOREM TAXATION OF REAL PROPERTY; TO INCREASE FROM THIRTY YEARS TO FIFTY YEARS THE MAXIMUM TERM OF ANY CONTRACT THAT A GOVERNMENTAL ENTITY MAY ENTER INTO WITH A COMPANY FOR THE DESIGN, FINANCE, CONSTRUCTION, OPERATION AND/OR MAINTENANCE OF A TOLL ROAD AND/OR BRIDGE; TO CLARIFY THE AUTHORITY OF A GOVERNMENTAL ENTITY HAVING JURISDICTION OVER A TOLL ROAD OR BRIDGE TO COLLECT TOLLS; TO PROVIDE FOR THE DISTRIBUTION OF TOLL PROCEEDS IN CONTRACTS BETWEEN THE TRANSPORTATION DEPARTMENT AND COMPANIES WHEN BONDS ARE NOT ISSUED TO FUND SUCH PROJECTS; TO AMEND SECTION 63-3-501, MISSISSIPPI CODE OF 1972, TO PRESCRIBE THE MAXIMUM SPEED LIMIT OF MOTOR VEHICLES ON TOLL ROADS; TO PROVIDE THAT IT SHALL BE UNLAWFUL FOR THE DRIVER OF A VEHICLE TO FAIL OR REFUSE TO PAY A REQUIRED TOLL ON A TOLL ROAD OR TOLL BRIDGE FACILITY AND TO PRESCRIBE PENALTIES FOR VIOLATIONS THEREOF; TO PROVIDE A PROCEDURE FOR THE COLLECTION OF TOLLS; TO AMEND SECTION 27-35-51, MISSISSIPPI CODE OF 1972, IN CONFORMITY WITH THE PROVISIONS OF THIS ACT; TO REQUIRE MDOT TO SUBMIT REPORTS TO THE LEGISLATURE ON TOLL PROJECTS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The following shall be codified as Section 65-43-2, Mississippi Code of 1972:
65-43-2. The Legislature finds and declares as a matter of public policy that, for the benefit of the people of this state, it is essential to foster, promote and provide public infrastructure, including toll roads and bridges.
SECTION 2. Section 65-43-3, Mississippi Code of 1972, is amended as follows:
65-43-3. (1) (a) In addition to and as an alternative to any other authority granted by law, including, but not limited to, Section 65-43-1, any governmental entities, as defined in Section 65-43-1, in their discretion, may contract, individually or jointly with other governmental entities, with any persons, corporations, partnerships or other businesses licensed to do business in the State of Mississippi (hereinafter referred to as "companies" or "company") for the purpose of designing, financing, constructing, operating and maintaining one or more new toll roads or toll bridges in the state for motor vehicle traffic, including tollbooths and related facilities, at and along only those locations where an alternate untolled route exists. An existing road or any segment of an existing road shall not be part of a new toll road, and the reconstruction or repair of an existing road shall not be tolled. Such contracts may provide that the governmental entities may grant certain rights (including, but not limited to, the right to exclusively operate and maintain) in land held by the governmental entities, whether in fee simple, as an easement or other interest, * * * to a company for design, construction, operation and/or maintenance of roadways, highways or bridges for motor vehicle traffic, tollbooths and related facilities. All such highways, pavement, bridges, drainage-related structures and other infrastructure comprising the projects shall be built and maintained in accordance with not less than the minimum highway design, construction and maintenance standards established by the contracting governmental entity for such highways, infrastructure and facilities. The contracting governmental entity shall conduct periodic inspections of any such project throughout the term of the contract to ensure compliance by the company. Failure of a company to comply with minimum standards established for the project by the contracting governmental entity shall constitute a breach and shall subject the company to liability on its bond or security or to rescission of the contract in accordance with the terms and provisions of the contract.
(b) A governmental entity may not enter into a contract under this section with (i) any company designated as a foreign terrorist organization pursuant to Presidential Executive Order 13224 or Section 302 of the federal Antiterrorism or Effective Death Penalty Act of 1996, (ii) any company under the control of a so-designated foreign terrorist organization, or (iii) any company controlled by a foreign person if to do so would violate any order of the Committee on Foreign Investment in the United States under the Foreign Investment and National Security Act of 2007, H.R. 566, 110th Cong. (2007), Public Law 110-49, 121 Stat. 246. These requirements also shall apply to any proposed transfer or assignment of any contract entered into under this section.
(2) (a) Every contract entered into by a governmental entity under this section (except for contracts entered into with another governmental entity or following termination of a predecessor contract entered into under this section), at a minimum, must provide for the design and construction of a new toll road or toll bridge project and may also provide for the financing, acquisition, lease, maintenance, and/or operation of a new toll road or toll bridge project.
(b) If a governmental entity enters into a contract with a company as authorized by this section, such governmental entity shall use a competitive procurement process that provides the best value for the governmental entity. The governmental entity may accept unsolicited proposals for a proposed new toll road or solicit proposals in accordance with this section.
(c) A governmental entity shall publish a request for competing proposals and qualifications in a newspaper having a general circulation within such governmental entity or, if the governmental entity is the Mississippi Transportation Commission, shall publish the request in a newspaper having a general circulation at the seat of government and, if the governmental entity has a Web site, shall post the request on such Web site. Such request shall include the criteria used to evaluate the proposals, the relative weight given to the criteria and a deadline by which proposals must be received. At a minimum, a proposal submitted in response to such request must contain:
(i) Information regarding the proposed project location, scope and limits;
(ii) Information regarding the company's qualifications, experience, technical competence, and capability to develop the project; and
(iii) A proposed financial plan for the proposed project that includes, at a minimum, the projected project costs, projected revenues and proposed sources of funds.
A governmental entity may interview a company submitting a solicited or unsolicited proposal. In evaluating such proposals, a governmental entity may solicit input from other sources regarding such proposals.
(d) The governmental entity shall rank each proposal based on the criteria described in the request for proposals and select the company whose proposal offers the best value to the governmental entity. The governmental entity may enter into discussions with the company whose proposal offers the best value. If at any point during the discussions it appears to the governmental entity that the highest ranking proposal will not provide the governmental entity with the overall best value, the governmental entity may enter into discussions with the company submitting the next highest ranking proposal.
(e) The governmental entity may withdraw a request for competing proposals and qualifications at any time and for any reason and may reject any one (1) or all proposals. In either case, the governmental entity may then publish a new request for competing proposals and qualifications. A governmental entity shall not be required to pay any company for the costs of preparing or submitting proposals.
(f) The governmental entity shall prescribe the general form of a contract authorized by this section and may include any matter the governmental entity considers advantageous to it. The governmental entity and the company shall negotiate the specific terms of the contract.
(g) Except as provided under this subsection (2), no such contract entered into hereunder shall be subject to the provisions of Section 65-1-8, Section 31-7-13 or any other public bid or public procurement laws of this state.
(h) The transportation commission shall evaluate each proposal based on the criteria established by the commission. The Transportation Commission shall approve or disapprove a proposal within ninety (90) days after receipt of the proposal. If the Transportation Commission needs additional information, it may delay approval for an additional sixty (60) days.
(i) Any right or interest arising under or as a result of any contract entered into under this section by a governmental entity with a company involving a franchise, license agreement, concession agreement, operating agreement, construction agreement, design agreement and/or any other similar contractual arrangement in connection with the financing, design, construction, acquisition, maintenance and/or operation of a toll road or toll bridge project shall not constitute any right, title or interest in land or other real property or real estate or in personal property within the meaning of Article 1, Chapter 35, Title 27, Mississippi Code of 1972, in the toll road or toll bridge project, including tollbooths and related toll facilities (including, but not limited to, land, pavement, drainage-related structures, and other infrastructure and property related thereto) in which a governmental entity is the title owner of such property and/or holder of easements, rights-of-way and/or other interests for such toll road or toll bridge project.
(3) Every contract entered into by a governmental entity under this section shall require a company to enter into bond and provide such security as the governmental entity determines may be necessary or advisable to ensure timely completion and proper execution and performance of the contract. The term of the contract shall not exceed fifty (50) years and shall not be extended or renewed. The governmental entities are authorized to acquire such property or interests in property as may be necessary, by gift, purchase or eminent domain, for construction and maintenance of the highways or bridges built pursuant to contracts entered into under this section. Upon expiration, termination or rescission of the contract, any and all rights and/or interests that the company may have in the land, infrastructure, facilities or other improvements to the property subject to contract shall terminate and automatically, by operation of law, be returned or conveyed to and vested in the State of Mississippi or the contracting governmental entity. Upon termination, expiration or rescission of the contract, the collection of tolls shall cease.
(4) The governmental entity having jurisdiction over the toll highway or bridge may, after notice and public hearing, establish, charge and collect motor vehicle operator tolls for use of the highway or bridge and its facilities. Alternatively, during the term of any contract entered into under this section, the company may establish, charge and collect motor vehicle operators tolls for use of the highway or bridge and its facilities. The amount of such tolls, and any modification thereto, shall be subject to approval by the contracting governmental entity after notice and public hearing. All such contracts entered into with the Mississippi Transportation Commission may require a company to pay a percentage or other specified portion of all tolls collected to the Mississippi Department of Transportation. If bonds are issued pursuant to Section 65-43-13, then all such tolls paid to the department shall be deposited into the special bond sinking fund under Section 65-43-11, and may be expended only as authorized by the Legislature. If bonds are not issued pursuant to Section 65-43-13, then all such tolls paid to the department shall be deposited into the department's highway fund to be used by the department for the construction and maintenance of highways.
(5) If a toll road is a designated evacuation route and a declaration of a state of emergency is issued by the President of the United States or by the Governor, the collection of tolls shall cease until the termination of the state of emergency.
(6) All statutes of this state relating to vehicle and traffic regulation and control shall be applicable to motor vehicles operated upon highways and bridges constructed under this section and shall be enforceable by the Mississippi Department of Public Safety, the Mississippi Highway Safety Patrol or any other law enforcement agency having jurisdiction over such highways and bridges.
(7) The State of Mississippi, the Mississippi Transportation Commission, the Mississippi Department of Transportation, counties, municipalities or any other agency or political subdivision, or any officer or employee thereof, shall not be liable for any tortious act or omission arising out of the construction, maintenance or operation of any highway or bridge project under the provisions of this section where the act or omission occurs during the term of any such contract entered into by the Mississippi Transportation Commission or other governmental entity and a company.
SECTION 3. Section 63-3-501, Mississippi Code of 1972, is amended as follows:
63-3-501. Except as otherwise provided in this section, no person shall operate a vehicle on the highways of the state at a speed greater than sixty-five (65) miles per hour.
The Mississippi Transportation Commission may, in its discretion, by order duly entered on its minutes, increase the speed restrictions on any portion of the Interstate Highway System provided such speed restrictions are not increased to more than seventy (70) miles per hour. The commission may likewise increase the speed limit to seventy (70) miles per hour on controlled access highways with four (4) or more lanes.
A governmental entity that operates and maintains a toll road as authorized under Section 65-43-1, or that contracts with some person or business to operate and maintain a toll road as authorized under Section 65-43-3, may establish the maximum speed for motor vehicles operated on any such toll road; however, the maximum speed so established may not exceed eighty (80) miles per hour.
SECTION 4. Section 27-35-51, Mississippi Code of 1972, is amended as follows:
27-35-51. (1) Except as otherwise provided in subsection (2) of this section, whenever any buildings, improvements or structures, mineral, gas, oil, timber or similar interests in real estate, including building permits or reservations, are owned separately and apart from and independently of the rights and interests owned in the surface of such real estate, or when any person reserves any right or interest, or has any leasehold in the elements above enumerated, all of such interests shall be assessed and taxed separately from such surface rights and interests in said real estate, and shall be sold for taxes in the same manner and with the same effect as other interests in real estate are sold for taxes. All interests in real estate herein enumerated shall be returned to the tax assessor within the same time and in the same manner as the owners of land are now required by law to list lands for assessment and taxation and under like penalties. The tax assessor shall enter the assessment of the interests herein enumerated upon the assessment roll by entering the same upon the next succeeding line or lines of the roll following the assessment of the surface owner, the name of the owner and the name of the interest, and by placing the value in the appropriate column or columns on the roll; or the assessor may enter the assessment of any or all of such interests upon a page or pages in the land roll following the assessment of the lands of the county, and the value of all such interests shall be included in the recapitulation of the roll. And the value of said interest or interests shall be determined and fixed in the same manner and by the same officials now required by law to value and assess property for taxation.
(2) Pursuant to Section 65-43-3(2)(i), any contract entered into under Section 65-43-3 by a governmental entity, as defined in Section 65-43-1, with a company as defined in Section 65-43-3(1), involving a franchise, license agreement, concession agreement, operating agreement, construction agreement, design agreement and/or any other similar contractual arrangement in connection with the financing, design, construction, acquisition, maintenance and/or operation of a toll road or toll bridge project pursuant to Section 65-43-3, shall not constitute any right, title or interest in land or other real property or real estate or in personal property separate and apart and independent of the rights and interests of the governmental entity for purposes of subsection (1) of this section, in the toll road or toll bridge project, including tollbooths and related toll facilities, including, but not limited to, land, pavement, drainage-related structures, and other infrastructure and property related thereto in which a governmental entity is the title owner of such property and/or holder of easements, rights-of-way and/or other interests for such toll road or toll bridge project.
SECTION 5. The following words and phrases shall have the meanings ascribed herein unless the context clearly indicates otherwise, as used in Sections 5 through 13 of House Bill No. 3, 2008 First Extraordinary Session:
(a) "Toll facility operator" means any private company contracting with a governmental entity to collect tolls or fees for the use of any toll road or toll bridge as authorized under Section 65-43-3;
(b) "Processing agency" means a governmental entity, or a toll facility operator designated by any governmental entity, responsible for the processing of the notices of toll evasions and notices of delinquent toll evasions and penalties. A processing agency may include a public agency or private vendor with which any governmental entity contracts for the processing of notices of toll evasions and notices of delinquent toll evasions;
(c) "Toll facility" means any road or bridge for which tolls or fees are charged for the use thereof.
SECTION 6. (1) A person may not use any toll facility without payment of tolls, except as specifically provided by statute, ordinance, regulation or rule of a governing entity.
(2) If a vehicle is found by automated devices, visual observation, or otherwise to have evaded tolls on any toll facility, the processing agency shall, within thirty (30) days of the violation, forward to the registered owner of the vehicle involved in the violation, by certified mail, return receipt requested, or by personal delivery, a notice of toll evasion violation setting forth the violation, including reference to the statute, ordinance, regulation or rule violated, the approximate time and location of the violation and the amount of the toll owed by the violator. Included with the notice of toll evasion violation shall be an affidavit of nonliability that complies with the requirements of Section 10 of House Bill No. 3, 2008 First Extraordinary Session. In the case of joint ownership of a motor vehicle, the notice must be mailed to the first name appearing on the registration, unless the first name is a business organization, in which case the second name appearing on the registration may be used. Mailing the notice to the address provided for notice or personal delivery constitutes legal notification to the violator. If accurate information concerning the identity and address of the registered owner of the vehicle is not available to the processing agency within thirty (30) days of the violation, the processing agency shall have an additional forty-five (45) calendar days to obtain such information and forward the notice of toll evasion violation. If after ninety (90) calendar days of the violation the processing agency has not obtained accurate information concerning the identity and address of the registered owner of the vehicle, the processing agency may publish the notice of the toll evasion for two (2) weeks in a newspaper having general circulation in the county of the registered owner's last known residence. This publication shall constitute legal notification to the violator. The notice of toll evasion violation shall also set forth the following:
(a) The vehicle license plate number;
(b) If practicable, the registration expiration date and the make of the vehicle;
(c) A clear and concise explanation of the procedures for contesting the violation and appealing an adverse decision.
(3) A violation of subsection (1) of this section is an infraction subject to a penalty established pursuant to Section 7 of House Bill No. 3, 2008 First Extraordinary Session. The collection of civil penalties shall be governed by the civil administrative procedures set forth in Section 8 of House Bill No. 3, 2008 First Extraordinary Session.
SECTION 7. (1) The notice of toll evasion violation shall be accompanied by a written notice of the toll evasion penalty due for that violation, the address of the person authorized to receive payment of the toll evasion penalty, an affidavit of nonliability and a statement that payment of the toll evasion penalty for the toll evasion violation may be sent through the mail.
(2) The schedule of toll evasion penalties for toll evasion violations shall be established by the governmental entity having jurisdiction over the toll road, but shall not exceed the amount of the unpaid toll plus One Hundred Dollars ($100.00) per violation.
(3) Toll evasion penalties under this section may be collected as civil penalties.
(4) If the amount of the unpaid toll, along with any applicable toll evasion penalty, is received by the person authorized to receive the deposit of these fees and there is no contest as to that toll evasion violation pursuant to Sections 5 through 11 of House Bill No. 3, 2008 First Extraordinary Session, the proceedings shall terminate.
(5) The amount of the unpaid toll, and any applicable penalties, shall be retained by or remitted to the governmental entity having jurisdiction over the toll road.
SECTION 8. The governmental entity shall establish a system of civil administrative adjudication to adjudicate the contest of any alleged instances of a vehicle's operation on a toll facility without the required toll having been paid, such system shall include a schedule of administrative fees and charges due in addition to the unpaid toll and/or penalty.
SECTION 9. (1) Any person aggrieved by a final decision of the adjudicative process set forth in Section 8 of House Bill No. 3, 2008 First Extraordinary Session, may appeal such decision within ten (10) days from the date of the postmark appearing on the notice of final decision mailed to the contestant. The appeal shall be initiated by the filing of a written notice of appeal accompanied by a bill of exceptions which shall embody the facts, order and decision of the adjudicative body and which shall be signed by the party executing the final decision appealed from. The contestant shall file the notice of appeal and bill of exceptions in the circuit court of the county in which the alleged violation took place and the court shall hear and determine the same on the case as presented by the bill of exceptions as an appellate court and shall affirm or reverse the final decision. A copy of that notice and bill of exceptions must be provided to all parties or their attorneys of record and the lower authority whose order or judgment is being appealed. A certificate of service must accompany the written notice of appeal. If the decision be reversed, the circuit court shall render such order or judgment and certify same to that body; and the costs shall be awarded as in other cases. The contents of the adjudicative body's official file in the case, including a copy of the notice of toll evasion violation, shall be made a part of the record on appeal and shall constitute prima facie evidence of the facts stated therein. A copy of the written notice of appeal shall be served by the contestant by certified mail, return receipt requested, upon the adjudicative body by service upon the party executing the final decision.
(2) If no written notice of appeal of the final decision is filed within the period set forth in subsection (1) of this section, the decision shall be deemed final.
(3) If the toll evasion penalty, along with the amount of the unpaid toll, have not been paid and the decision resulting from the judicial review of the final decision is adverse to the contestant, the processing agency may, promptly after the decision becomes final, proceed to collect the penalty.
SECTION 10. (1) If the payment of the amount of the unpaid toll, and any applicable toll evasion penalty, is not received by the person authorized to receive payment of these fees by the time and date fixed for appearance on the notice of toll evasion violation, the processing agency shall deliver to the registered owner a final notice of toll evasion violation.
(2) Delivery of a final notice of toll evasion violation under this section shall be made by certified mail, return receipt requested, addressed to the registered owner, or by personal delivery. If delivery by certified mail or personal delivery is refused by the registered owner, then the processing agency may publish the notice of delinquent toll evasion for two (2) weeks in a newspaper having a general circulation in the county of the registered owner's last known residence.
(3) The final notice of toll evasion violation shall contain the information specified in Section 6 of House Bill No. 3, 2008 First Extraordinary Session, and shall also contain a notice to the registered owner that he must either:
(a) Pay the amount of the unpaid toll, and any applicable penalty, or
(b) Provide proof of payment of the unpaid toll, and any applicable penalty or an affidavit of nonliability.
(4) If the registered owner fails to pay the toll evasion penalty, as required, the registered owner shall be deemed responsible for the violation and the amount of the unpaid toll and any administrative fees or charges which shall be due to the governmental entity by the registered owner.
SECTION 11. (1) If the affidavit of nonliability is returned to the governmental entity within thirty (30) days of the mailing of the notice of toll evasion violation, together with the proof of a written rental agreement or lease between a bona fide renting or leasing company and its customer which identifies the rentee or lessee and provides the driver's license number, name, and address of the rentee or lessee, the processing agency shall mail, by certified mail, return receipt requested, to the rentee or lessee identified in the affidavit of nonliability a final notice of toll evasion violation.
(2) If the affidavit of nonliability is returned with evidence that the registered owner served has made a bona fide sale or transfer of the vehicle and has delivered possession thereof to the purchaser prior to the date of the alleged violation, the processing agency shall cancel the notice of toll evasion violation with respect to that registered owner and the processing agency shall mail, by certified mail, return receipt requested, to the purchaser identified in the affidavit of nonliability a final notice of toll evasion violation. If payment is not received within fifteen (15) days of the mailing of the final notice of toll evasion violation, the processing agency may proceed against the purchaser identified pursuant to Section 6 of House Bill No. 3, 2008 First Extraordinary Session.
SECTION 12. The processing agency may contract with a collection agency to collect unpaid toll evasion penalties, fees and charges.
SECTION 13. The following shall be codified as Section 65-43-6, Mississippi Code of 1972:
65-43-6. Any driver of a vehicle who fails or refuses to pay a required toll on a toll road or toll bridge facility in the state shall be guilty of a misdemeanor and, upon conviction, shall be fined not more than Five Hundred Dollars ($500.00), or imprisoned not more than six (6) months, or both. In addition, the court shall order a person convicted of violating this section, to make restitution to the toll facility operator in an amount equal to the dollar amount of the toll that such person was required but failed or refused to pay. Any sheriff, municipal police officer, State Highway Patrol officer, law enforcement officer of the Department of Public Safety or certified law enforcement officer of the Mississippi Department of Transportation may issue a traffic ticket for such violation within the limits of their respective jurisdictions in accordance with Section 63-9-21.
SECTION 14. On or before January 10 of each year the Mississippi Transportation Commission shall submit a detailed report to the Chairman of the Senate Highways and Transportation Committee and the Chairman of the House Transportation Committee describing and evaluating the financial and operational performance by a company with which the commission has contracted under this act of the company's duties and responsibilities regarding the construction, operation and maintenance of a toll road or toll bridge project.
SECTION 15. This act shall take effect and be in force from and after its passage.