(1) The department shall enter into an agreement for each public-private initiative. (2) The department shall include terms and conditions in the agreement that it determines are appropriate in the public interest and to protect highway and traffic safety. (3) The agreement may provide that: (a) The private entity may pledge the transportation system project or the right-of-way involved in the transportation system project if the project or right-of-way is entirely funded by private moneys and the department determines that such a pledge is in the public interest. The private entity shall not pledge or cause a lien to be created on a transportation system project or a right-of-way involved in a transportation system project if public funds were used to purchase the project or right-of-way or the department owns the project or right-of-way. (b) The private entity owns the highway and right-of-way involved in the transportation system project if the project or right-of-way is entirely funded by private moneys and the department determines that such ownership is in the public interest. The department may not transfer ownership of a transportation system project or a right-of-way involved in a transportation system project if public funds were used to purchase the project or right-of-way or the department owns the project or right-of-way. (4) Notwithstanding the fact that the department enters into an agreement for a public- private initiative, the department is not a partner or a joint venturer with the private entity for any purpose. (5) (a) Except as provided in subsection (5)(b) of this section: (I) The department shall not enter into any exclusive arrangement, lease, or other agreement for use of the public rights-of-way by a telecommunications provider that in any way discriminates or prevents a similar arrangement being made with any other telecommunications provider; (II) All leases of rights-of-way to telecommunications providers must be done on a nondiscriminatory same-term basis; and (III) If a telecommunications provider compensates the state in other than cash, a cash equivalent value must be imputed and attached to the agreement, and any other telecommunications provider may have equal access to the right-of-way for the cash equivalent. The cash equivalent shall be an estimate of the fair market value of the service or product provided to the state, and a telecommunications provider may ask a court of competent jurisdiction to review the imputed monetary amount, which the court may lower to the reasonable fair market value if necessary. (b) By August 30, 2022, the department shall develop a uniform electronic application, permitting, contract, and fee structure to facilitate nongovernmental entities' access to public rights-of-way and fiber lease or swap for the deployment of broadband. (c) (I) Acceptances and denials by the department pursuant to subsections (5)(a) and (5)(b) of this section shall be provided by the department to a broadband provider in writing and shall identify specific reasons for the approval or the denial. The department shall also make available to the public the written approval or denial required by this subsection (5)(c)(I) in an online electronic format. (II) As used in this section, "broadband provider" has the meaning set forth in section 38-5.5-102 (3).
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