Arizona Laws 49-1213. Public-private partnership agreements; private partners; political subdivisions; tax exemptions; prohibition
A. In any public-private partnership under this chapter, the authority may include provisions that:
Terms Used In Arizona Laws 49-1213
- Authority: means the water infrastructure finance authority of Arizona. See Arizona Laws 49-1201
- Board: means the water infrastructure finance authority board established by section 49-1206. See Arizona Laws 49-1201
- Concession agreement: means any lease, ground lease, franchise, easement, permit or other binding agreement transferring rights for the use or control, in whole or in part, of water-related facilities by the authority to a private partner in accordance with this chapter. See Arizona Laws 49-1201
- Contract: A legal written agreement that becomes binding when signed.
- Corporation: A legal entity owned by the holders of shares of stock that have been issued, and that can own, receive, and transfer property, and carry on business in its own name.
- Damages: Money paid by defendants to successful plaintiffs in civil cases to compensate the plaintiffs for their injuries.
- Equitable: Pertaining to civil suits in "equity" rather than in "law." In English legal history, the courts of "law" could order the payment of damages and could afford no other remedy. See damages. A separate court of "equity" could order someone to do something or to cease to do something. See, e.g., injunction. In American jurisprudence, the federal courts have both legal and equitable power, but the distinction is still an important one. For example, a trial by jury is normally available in "law" cases but not in "equity" cases. Source: U.S. Courts
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- including: means not limited to and is not a term of exclusion. See Arizona Laws 1-215
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Partnership: A voluntary contract between two or more persons to pool some or all of their assets into a business, with the agreement that there will be a proportional sharing of profits and losses.
- Private partner: means a person, entity or organization that is not the federal government, this state or a political subdivision of this state. See Arizona Laws 49-1201
- Property: includes both real and personal property. See Arizona Laws 1-215
- Public-private partnership project: means any water supply development project that is the subject of a public-private partnership agreement in accordance with this chapter. See Arizona Laws 49-1201
- Real property: Land, and all immovable fixtures erected on, growing on, or affixed to the land.
- Water-related facilities: means any facility related to the production, delivery, conservation or storage of water, including any canals, pipelines, desalination plants, pumping stations, storage projects, recovery wells, delivery and retention projects, water and wastewater treatment plants, and other equipment and facilities installed for water conservation purposes, together with any land, buildings or other improvements and equipment or personal property related thereto. See Arizona Laws 49-1201
1. Allow the authority or the private partner to establish and collect delivery charges, service charges, operation and maintenance charges or similar charges, including provisions that:
(a) Establish circumstances under which the authority may receive all or a share of revenues from such charges.
(b) Govern enforcement of collection of such charges.
(c) Allow the authority to continue or cease collection of charges after the end of the term of the agreement.
2. Allow for payments to be made by this state to the private partner.
3. Allow the authority to accept payments of monies and share revenues with the private partner.
4. Address how the partners will share management of the risks of the public-private partnership project, including any risks associated with public-private partnership projects that will originate outside of this state.
5. Specify how the partners will share the costs of the design, development, acquisition, construction, improvement and equipping of the public-private partnership project.
6. Allocate financial responsibility for cost overruns.
7. Establish the damages to be assessed for nonperformance.
8. Establish performance criteria or incentives, or both.
9. Address the acquisition of rights-of-way and other property interests that may be required.
10. Establish recordkeeping, accounting and auditing standards to be used for the public-private partnership project.
11. For a public-private partnership project that reverts to public ownership, address responsibility for reconstruction or renovations that are required in order for water-related facilities to meet all applicable government standards on reversion of the water-related facilities to this state.
12. Identify any authority specifications that must be satisfied, including provisions allowing the private partner to request and receive authorization to deviate from the specifications on making a showing satisfactory to the authority.
13. Require a private partner to provide performance and payment bonds, parent company guarantees, letters of credit or other acceptable forms of security or a combination of any of these, the penal sum or amount of which may be less than one hundred percent of the value of the contract involved based on the authority’s determination, made on a project-by-project basis, of what is required to adequately protect this state.
14. Allow the private partner in any concession agreement to establish and collect delivery charges, operation and maintenance charges or similar charges to cover its costs and provide for a reasonable rate of return on the private partner’s investment, including any of the following provisions:
(a) The charges may be collected directly by the private partner or by a third party engaged for that purpose.
(b) A formula for the adjustment of charges during the term of the agreement.
(c) For an agreement that does not include a formula described in subdivision (b) of this paragraph, provisions regulating the private partner’s return on investment.
15. Specify remedies available and dispute resolution procedures, including forum selection and choice of law provisions and the right of the parties to institute legal proceedings to obtain an enforceable judgment or award and procedures for use of dispute review boards, mediation, facilitated negotiation, arbitration and other alternative dispute resolution procedures.
16. Allow the authority to acquire real property that is needed for water-related facilities, including acquisition by exchange for other real property that is owned by the authority.
B. The authority may approve any request from another unit of government to develop water-related facilities in a manner similar to that used by the authority for public-private partnerships.
C. Notwithstanding any other law, agreements under this chapter that are properly developed, operated or held by a private partner under a concession agreement pursuant to this chapter are exempt from all state and local ad valorem and property taxes that otherwise might be applicable.
D. A public-private partnership agreement under this chapter shall contain a provision by which the private partner expressly agrees that it is prohibited from seeking injunctive or other equitable relief to delay, prevent or otherwise hinder the authority or any jurisdiction from developing, constructing or maintaining any water-related facilities that were planned and that would or might impact the revenue that the private partner would or might derive from the water-related facilities developed under the agreement, except that the agreement may provide for reasonable compensation to the private partner for the adverse effect on revenues resulting from development, construction and maintenance of an unplanned revenue impacting water-related facilities.
E. A foreign private corporation that enters into an agreement with the authority pursuant to this section must provide satisfactory evidence to the board that the foreign entity is in compliance with the requirements of Title 10, Chapter 38.