MISSISSIPPI LEGISLATURE

2001 Regular Session

To: Highways and Transportation

By: Senator(s) Ross

AN ACT TO AUTHORIZE THE MISSISSIPPI TRANSPORTATION COMMISSION, COUNTY BOARDS OF SUPERVISORS AND THE GOVERNING AUTHORITIES OF MUNICIPALITIES TO CONTRACT WITH ANY PERSON, CORPORATION OR OTHER BUSINESS LICENSED TO DO BUSINESS IN THE STATE FOR THE PURPOSE OF CONSTRUCTING TOLL ROADS OR BRIDGES; TO PRESCRIBE THE TERMS AND CONDITIONS FOR THE LETTING OF SUCH CONTRACTS AND THE RIGHTS AND DUTIES OF THE PARTIES ENTERING INTO SUCH CONTRACTS; TO AMEND SECTIONS 65-3-1 AND 11-46-9, MISSISSIPPI CODE OF 1972, IN CONFORMITY TO THE PROVISIONS OF THIS ACT; TO AUTHORIZE GOVERNMENTAL ENTITIES TO ISSUE LICENSES AND PERMITS TO INDIVIDUALS, GROUPS, PARTNERSHIPS, CORPORATIONS, ASSOCIATIONS OR OTHER LEGAL ENTITIES AUTHORIZING SUCH ENTITIES TO CONSTRUCT AND OPERATE TOLL ROADS, BRIDGES, FERRIES AND CAUSEWAYS PRIMARILY ON LAND OWNED, LEASED OR USED BY SUCH ENTITIES; TO EXEMPT REAL PROPERTY USED FOR SUCH PURPOSES FROM AD VALOREM TAX; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. (1) The Mississippi Transportation Commission, county boards of supervisors and/or the governing authorities of municipalities (hereinafter referred to as governmental entities) 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 leasing highway or roadway property upon which shall be constructed one or more toll roads or bridges in the state. Such contracts shall provide that land held by the governmental entities, whether in fee simple, as an easement or other interest, shall be leased or assigned to a company for construction, operation and maintenance of roadways or highways for motor vehicle traffic, toll booths 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 for such highways, infrastructure and facilities by the contracting governmental entity. 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.

(2) 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 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 built pursuant to contracts entered into under this section. Furthermore, when and as dictated by the terms of the contract with the governmental entity, the company shall have the same powers of eminent domain as those described in Section 11-27-47. Upon expiration, termination or rescission of the contract, all 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 vest in the State of Mississippi or the contracting governmental entity. Upon termination, expiration or rescission of the contract, the collection of tolls shall cease.

(3) 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 and its facilities. The amount of such tolls, and any modification thereto, shall be subject to approval by the contracting governmental entity; however, all such contracts entered into with the Mississippi Transportation Commission may require a company to pay a percentage of all tolls collected to the Mississippi Department of Transportation. All such monies paid to the department shall be deposited into the State Highway Fund and may be expended, upon appropriation by the Legislature, only for maintenance of state highways.

(4) All statutes of this state relating to 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 and the Mississippi Highway Safety Patrol.

(5) 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.

(6) The powers conferred by this section shall be in addition to the powers conferred by any other law, general, special or local. This section shall be construed as an additional and alternative method of funding the purchasing, building, improving, owning or operating of roadways and/or highways under the jurisdiction of the Mississippi Transportation Commission, county boards of supervisors or municipal governing authorities, any provision of the laws of the state or any charter of any municipality to the contrary notwithstanding.

SECTION 2. Section 65-3-1, Mississippi Code of 1972, is amended as follows:

65-3-1. Subject only to the provisions hereinafter contained, it shall be unlawful for any person, acting privately or in any official capacity or as an employee of any subdivision of the state, to charge or collect any toll or other charge from any person for the privilege of traveling on any part of any highway which has been heretofore or may hereafter be designated as a state highway, and being a part of the state highway system, or on or across any bridge wholly within this state, which is a part of any such highway.

For a violation of this section, any judge or chancellor may, in term time or vacation, grant an injunction upon complaint of the Mississippi Transportation Commission.

However, none of the provisions of this section shall prohibit the collection of any toll or other charge for the privilege of traveling on, or the use of, any causeway, bridge, tunnel, toll bridge, or any combination of such facility constructed under the provisions of Sections 65-23-101 through 65-23-119, forming a part of U.S. Highway * * * 90 across the Bay of St. Louis, or across or under the East Pascagoula River or the West Pascagoula River on * * * U.S. Highway 90.

The provisions of this section shall be inapplicable to any toll road or bridge built or operated under the authority of Section 1 or Section 4 of Senate Bill No. ____, 2001 Regular Session.

SECTION 3. Section 11-46-9, Mississippi Code of 1972, is amended as follows:

11-46-9. (1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:

(a) Arising out of a legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial nature;

(b) Arising out of any act or omission of an employee of a governmental entity exercising ordinary care in reliance upon, or in the execution or performance of, or in the failure to execute or perform, a statute, ordinance or regulation, whether or not the statute, ordinance or regulation be valid;

(c) Arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury;

(d) Based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused;

(e) Arising out of an injury caused by adopting or failing to adopt a statute, ordinance or regulation;

(f) Which is limited or barred by the provisions of any other law;

(g) Arising out of the exercise of discretion in determining whether or not to seek or provide the resources necessary for the purchase of equipment, the construction or maintenance of facilities, the hiring of personnel and, in general, the provision of adequate governmental services;

(h) Arising out of the issuance, denial, suspension or revocation of, or the failure or refusal to issue, deny, suspend or revoke any privilege, ticket, pass, permit, license, certificate, approval, order or similar authorization where the governmental entity or its employee is authorized by law to determine whether or not such authorization should be issued, denied, suspended or revoked unless such issuance, denial, suspension or revocation, or failure or refusal thereof, is of a malicious or arbitrary and capricious nature;

(i) Arising out of the assessment or collection of any tax or fee;

(j) Arising out of the detention of any goods or merchandise by any law enforcement officer, unless such detention is of a malicious or arbitrary and capricious nature;

(k) Arising out of the imposition or establishment of a quarantine, whether such quarantine relates to persons or property;

(l) Of any claimant who is an employee of a governmental entity and whose injury is covered by the Workers' Compensation Law of this state by benefits furnished by the governmental entity by which he is employed;

(m) Of any claimant who at the time the claim arises is an inmate of any detention center, jail, workhouse, penal farm, penitentiary or other such institution, regardless of whether such claimant is or is not an inmate of any detention center, jail, workhouse, penal farm, penitentiary or other such institution when the claim is filed;

(n) Arising out of any work performed by a person convicted of a crime when the work is performed pursuant to any sentence or order of any court or pursuant to laws of the State of Mississippi authorizing or requiring such work;

(o) Under circumstances where liability has been or is hereafter assumed by the United States, to the extent of such assumption of liability, including, but not limited to, any claim based on activities of the Mississippi National Guard when such claim is cognizable under the National Guard Tort Claims Act of the United States, 32 USC 715 (32 USCS 715), or when such claim accrues as a result of active federal service or state service at the call of the Governor for quelling riots and civil disturbances;

(p) Arising out of a plan or design for construction or improvements to public property, including, but not limited to, public buildings, highways, roads, streets, bridges, levees, dikes, dams, impoundments, drainage channels, diversion channels, harbors, ports, wharfs or docks, where such plan or design has been approved in advance of the construction or improvement by the legislative body or governing authority of a governmental entity or by some other body or administrative agency, exercising discretion by authority to give such approval, and where such plan or design is in conformity with engineering or design standards in effect at the time of preparation of the plan or design;

(q) Arising out of an injury caused solely by the effect of weather conditions on the use of streets and highways;

(r) Arising out of the lack of adequate personnel or facilities at a state hospital or state corrections facility if reasonable use of available appropriations has been made to provide such personnel or facilities;

(s) Arising out of loss, damage or destruction of property of a patient or inmate of a state institution;

(t) Arising out of any loss of benefits or compensation due under a program of public assistance or public welfare;

(u) Arising out of or resulting from riots, unlawful assemblies, unlawful public demonstrations, mob violence or civil disturbances;

(v) Arising out of an injury caused by a dangerous condition on property of the governmental entity that was not caused by the negligent or other wrongful conduct of an employee of the governmental entity or of which the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against; provided, however, that a governmental entity shall not be liable for the failure to warn of a dangerous condition which is obvious to one exercising due care;

(w) Arising out of the absence, condition, malfunction or removal by third parties of any sign, signal, warning device, illumination device, guardrail or median barrier, unless the absence, condition, malfunction or removal is not corrected by the governmental entity responsible for its maintenance within a reasonable time after actual or constructive notice; or

(x) Arising out of the administration of corporal punishment or the taking of any action to maintain control and discipline of students, as defined in Section 37-11-57, by a teacher, assistant teacher, principal or assistant principal of a public school district in the state unless the teacher, assistant teacher, principal or assistant principal acted in bad faith or with malicious purpose or in a manner exhibiting a wanton and willful disregard of human rights or safety.

(y) Arising out of any act or omission relating to a highway, bridge or roadway project under a contract entered into under Section 1 or Section 4 of Senate Bill No. ____, 2001 Regular Session.

(2) A governmental entity shall also not be liable for any claim where the governmental entity:

(a) Is inactive and dormant;

(b) Receives no revenue;

(c) Has no employees; and

(d) Owns no property.

(3) If a governmental entity exempt from liability by subsection (2) becomes active, receives income, hires employees or acquires any property, such governmental entity shall no longer be exempt from liability as provided in subsection (2) and shall be subject to the provisions of this chapter.

SECTION 4. (1) The provisions of this section and of Section 5 of Senate Bill No. ____, 2001 Regular Session, shall be totally separate from and not limited in any respect by any other provisions of law including, but not limited to, any other provisions of Senate Bill No. ____, 2001 Regular Session, or of any other law relating to the setting and supervision of tolls, inspections, bonding of licensees and toll road and bridge owners and operators, rescission of licenses and contracts and reversion of title to property and projects. Unless clearly indicated to the contrary from the context of this section, all terms used in this section shall have the same meaning as when used in Section 1 of Senate Bill No. ____, 2001 Regular Session.

(2) In addition to and as an alternative to any other authority granted by law including, but not limited to, Section 1 of Senate Bill No. ____, 2001 Regular Session, any governmental entities, as defined in Section 1, may individually or jointly with any other governmental agency or agencies, in their discretion, issue licenses and permits to individuals, groups, partnerships, corporations, associations or other legal entities licensed to do business in this state (such persons and entities are hereinafter referred to as "licensees") authorizing such licensees to (a) construct, develop, purchase or otherwise establish and to own operate and maintain toll roads, bridges, ferries and causeways on private land and other property owned or leased or otherwise used for such purposes by such licensees; and (b) set, change, charge and collect tolls for the use of such facilities, all upon such terms and conditions, if any, which such governmental entities and licensees shall mutually agree to and set forth in such licenses or permits or in any contractual agreements between such governmental entities and licensees. Such governmental entities may, but only to the extent expressly provided in the licenses or permits issued to such licensees, impose and collect fees for the issuance of such licenses or permits. Without limiting any other provisions of this section, all licenses and permits issued under this section may be issued for a stated period of time or may be perpetual and may be irrevocable, all as stated in such license or permit. Any governmental entity issuing any such license or permit may also use its eminent domain powers to acquire any property needed for or helpful to the construction, development, purchase or establishment or to the ownership or operation of any such project and may thereafter transfer title, license the use of or lease such property to any such licensee or such licensee's affiliate, all upon such terms and conditions as such governmental entity shall deem advisable. All statutes of this state relating to traffic regulation and control shall be applicable to motor vehicles operated upon roads and bridges constructed, developed, purchased or otherwise owned, established and operated pursuant to this section and shall be enforceable by the Mississippi Department of Public Safety and the Mississippi Highway Safety Patrol at the same level and to the same extent as such laws are enforced on public roads and bridges.

(3) Any licensee that has been issued a license or permit under this section may not be required by the governmental entity issuing the license or permit or by any other governmental entity to obtain any other license or permit or to pay any fee or tax in addition to the license or permit fee, if any, charged at the time of and incident to the issuance of such license or permit for the privilege of constructing, owning, operating or maintaining such toll road, bridge, ferry or causeway or engaging in the business of constructing, owning, operating or maintaining any such toll road, bridge, ferry or causeway relating to any period of time following the issuance of such license or permit including, but not limited to, any business license or ad valorem or property tax. Notwithstanding the foregoing, neither public funds nor public credit shall be used in the construction or financing of the privately-owned portion of any toll road, bridge, ferry or causeway; however, this provision shall not restrict public funding or financing of any governmentally-owned roads, highways or other infrastructure which may provide access to or enhance access to or use of such privately owned toll road, bridge, ferry or causeway. All other laws and regulations of this state, to the extent such other laws or regulations are, or might be construed as being, inconsistent with or restricting or limiting either this section or Section 5 of Senate Bill No. ____, 2001 Regular Session, are superseded for the purposes of the implementation, application and operation of this section and of Section 5 of Senate Bill No. ____, 2001 Regular Session, to the extent of such actual or perceived inconsistency, restriction or limitation.

SECTION 5. All real and personal property, whether tangible or intangible, owned, used or leased by an individual or legal entity that has been issued a license or permit under Section 4 of Senate Bill No. ____, 2001 Regular Session, or by such individual's or legal entity's affiliates, successors or assigns, and which is used in the construction, development, establishment, ownership, operation or maintenance of such toll road, bridge, ferry or causeway authorized under Section 4 of Senate Bill No. ____, 2001 Regular Session, shall be exempt from all ad valorem and all other property taxes.

SECTION 6. Nothing in this act shall affect or defeat any claim, assessment, appeal, suit, right or cause of action for taxes due or accrued under the ad valorem tax laws before the date on which this act becomes effective, whether such claims, assessments, appeals, suits or actions have been begun before the date on which this act becomes effective or are begun thereafter; and the provisions of the ad valorem tax laws are expressly continued in full force, effect and operation for the purpose of the assessment, collection and enrollment of liens for any taxes due or accrued and the execution of any warrant under such laws before the date on which this act becomes effective, and for the imposition of any penalties, forfeitures or claims for failure to comply with such laws.

SECTION 7. This act shall take effect and be in force from and after July 1, 2001.