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Full Text of HB1091  97th General Assembly

HB1091enr 97TH GENERAL ASSEMBLY

  
  
  

 


 
HB1091 EnrolledLRB097 05970 HEP 46040 b

1    AN ACT concerning State government.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 1. Short title. This Act may be cited as the
5Public-Private Partnerships for Transportation Act.
 
6    Section 5. Public policy and legislative intent.
7    (a) It is the public policy of the State of Illinois to
8promote the development, financing, and operation of
9transportation facilities that serve the needs of the public.
10    (b) Existing methods of procurement and financing of
11transportation facilities by transportation agencies impose
12limitations on the methods by which transportation facilities
13may be developed and operated within the State.
14    (c) Authorizing transportation agencies to enter into
15public-private partnerships, whereby private entities may
16develop, operate, and finance transportation facilities, has
17the potential to promote the development of transportation
18facilities in the State as well as investment in the State.
19    (d) It is the intent of this Act to promote public-private
20partnerships for transportation by authorizing transportation
21agencies to enter into public-private agreements related to the
22development, operation, and financing of transportation
23facilities.

 

 

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1    (e) It is the intent of this Act to encourage the practice
2of congestion pricing in connection with toll highways,
3pursuant to which higher toll rates are charged during times or
4in locations of most congestion.
5    (f) It is the intent of this Act to use Illinois design
6professionals, construction companies, and workers to the
7greatest extent possible by offering them the right to compete
8for this work.
 
9    Section 10. Definitions. As used in this Act:
10    "Approved proposal" means the proposal that is approved by
11the transportation agency pursuant to subsection (e) of Section
1220 of this Act.
13    "Approved proposer" means the private entity whose
14proposal is the approved proposal.
15    "Authority" means the Illinois State Toll Highway
16Authority.
17    "Contractor" means a private entity that has entered into a
18public-private agreement with the transportation agency to
19provide services to or on behalf of the transportation agency.
20    "Department" means the Illinois Department of
21Transportation.
22    "Develop" or "development" means to do one or more of the
23following: plan, design, develop, lease, acquire, install,
24construct, reconstruct, rehabilitate, extend, or expand.
25    "Maintain" or "maintenance" includes ordinary maintenance,

 

 

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1repair, rehabilitation, capital maintenance, maintenance
2replacement, and any other categories of maintenance that may
3be designated by the transportation agency.
4    "Metropolitan planning organization" means a metropolitan
5planning organization designated under 23 U.S.C. Section 134
6whose metropolitan planning area boundaries are partially or
7completely within the State.
8    "Operate" or "operation" means to do one or more of the
9following: maintain, improve, equip, modify, or otherwise
10operate.
11    "Private entity" means any combination of one or more
12individuals, corporations, general partnerships, limited
13liability companies, limited partnerships, joint ventures,
14business trusts, nonprofit entities, or other business
15entities that are parties to a proposal for a transportation
16project or an agreement related to a transportation project. A
17public agency may provide services to a contractor as a
18subcontractor or subconsultant without affecting the private
19status of the private entity and the ability to enter into a
20public-private agreement.
21    "Proposal" means all materials and documents prepared by or
22on behalf of a private entity relating to the proposed
23development, financing, or operation of a transportation
24facility as a transportation project.
25    "Proposer" means a private entity that has submitted a
26proposal or statement of qualifications for a public-private

 

 

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1agreement in response to a request for proposals or a request
2for qualifications issued by a transportation agency under this
3Act.
4    "Public-private agreement" means the public-private
5agreement between the contractor and the transportation agency
6relating to one or more of the development, financing, or
7operation of a transportation project that is entered into
8under this Act.
9    "Request for information" means all materials and
10documents prepared by or on behalf of the transportation agency
11to solicit information from private entities with respect to
12transportation projects.
13    "Request for proposals" means all materials and documents
14prepared by or on behalf of the transportation agency to
15solicit proposals from private entities to enter into a
16public-private agreement.
17    "Request for qualifications" means all materials and
18documents prepared by or on behalf of the transportation agency
19to solicit statements of qualification from private entities to
20enter into a public-private agreement.
21    "Revenues" means all revenues, including any combination
22of: income; earnings and interest; user fees; lease payments;
23allocations; federal, State, and local appropriations, grants,
24loans, lines of credit, and credit guarantees; bond proceeds;
25equity investments; service payments; or other receipts;
26arising out of or in connection with a transportation project,

 

 

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1including the development, financing, and operation of a
2transportation project. The term includes money received as
3grants, loans, lines of credit, credit guarantees, or otherwise
4in aid of a transportation project from the federal government,
5the State, a unit of local government, or any agency or
6instrumentality of the federal government, the State, or a unit
7of local government.
8    "Transportation agency" means (i) the Department or (ii)
9the Authority.
10    "Transportation facility" means any new or existing road,
11highway, toll highway, bridge, tunnel, intermodal facility,
12intercity or high-speed passenger rail, or other
13transportation facility or infrastructure, excluding airports,
14under the jurisdiction of the Department or the Authority. The
15term "transportation facility" may refer to one or more
16transportation facilities that are proposed to be developed or
17operated as part of a single transportation project.
18    "Transportation project" or "project" means any or the
19combination of the development, financing, or operation with
20respect to all or a portion of any transportation facility
21under the jurisdiction of the transportation agency,
22undertaken pursuant to this Act.
23    "Unit of local government" has the meaning ascribed to that
24term in Article VII, Section 1 of the Constitution of the State
25of Illinois and also means any unit designated as a municipal
26corporation.

 

 

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1    "User fees" or "tolls" means the rates, tolls, fees, or
2other charges imposed by the contractor for use of all or a
3portion of a transportation project under a public-private
4agreement.
 
5    Section 15. Formation of public-private agreements;
6project planning.
7    (a) Each transportation agency may exercise the powers
8granted by this Act to do some or all to develop, finance, and
9operate any part of one or more transportation projects through
10public-private agreements with one or more private entities.
11The net proceeds arising out of a transportation project or
12public-private agreement undertaken by the Department pursuant
13to this Act shall be deposited into the State Construction
14Account Fund. The net proceeds arising out of a transportation
15project or public-private agreement undertaken by the
16Authority pursuant to this Act shall be deposited into the
17Illinois State Toll Highway Authority Fund and shall be used
18only as authorized by Section 23 of the Toll Highway Act.
19    (b) The Authority shall not enter into a public-private
20agreement involving a lease or other transfer of any toll
21highway, or portions thereof, under the Authority's
22jurisdiction which were open to vehicular traffic on the
23effective date of this Act. The Authority shall not enter into
24a public-private agreement for the purpose of making roadway
25improvements, including but not limited to reconstruction,

 

 

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1adding lanes, and adding ramps, to any toll highway, or
2portions thereof, under the Authority's jurisdiction which
3were open to vehicular traffic on the effective date of this
4Act. The Authority shall not use any revenue generated by any
5toll highway, or portions thereof, under the Authority's
6jurisdiction which were open to vehicular traffic on the
7effective date of this Act to enter into or provide funding for
8a public-private agreement. The Authority shall not use any
9asset, or the proceeds from the sale or lease of any such
10asset, which was owned by the Authority on the effective date
11of this Act to enter into or provide funding for a
12public-private agreement. The Authority may enter into a
13public-private partnership to develop, finance, and operate
14new toll highways authorized by the Governor and the General
15Assembly pursuant to Section 14.1 of the Toll Highway Act,
16non-highway transportation projects on the toll highway system
17such as commuter rail or high-speed rail lines, and intelligent
18transportation infrastructure that will enhance the safety,
19efficiency, and environmental quality of the toll highway
20system. The Authority may operate or provide operational
21services such as toll collection on highways which are
22developed or financed, or both, through a public-private
23agreement entered into by another public entity.
24    (c) A contractor has:
25        (1) all powers allowed by law generally to a private
26    entity having the same form of organization as the

 

 

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1    contractor; and
2        (2) the power to develop, finance, and operate the
3    transportation facility and to impose user fees in
4    connection with the use of the transportation facility,
5    subject to the terms of the public-private agreement.
6    No tolls or user fees may be imposed by the contractor
7except as set forth in a public-private agreement.
8    (d) Each year, at least 30 days prior to the beginning of
9the transportation agency's fiscal year, and at other times the
10transportation agency deems necessary, the Department and the
11Authority shall submit for review to the General Assembly a
12description of potential projects that the transportation
13agency is considering undertaking under this Act. Any
14submission from the Authority shall indicate which of its
15potential projects, if any, will involve the proposer operating
16the transportation facility for a period of one year or more.
17Prior to the issuance of any request for qualifications or
18request for proposals with respect to any potential project
19undertaken by the Department or the Authority pursuant to
20Section 20 of this Act, the commencement of a procurement
21process for that particular potential project shall be
22authorized by joint resolution of the General Assembly.
23    (e) Each year, at least 30 days prior to the beginning of
24the transportation agency's fiscal year, the transportation
25agency shall submit a description of potential projects that
26the transportation agency is considering undertaking under

 

 

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1this Act to each county, municipality, and metropolitan
2planning organization, with respect to each project located
3within its boundaries.
4    (f) Any project undertaken under this Act shall be subject
5to all applicable planning requirements otherwise required by
6law, including land use planning, regional planning,
7transportation planning, and environmental compliance
8requirements.
9    (g) Any new transportation facility developed as a project
10under this Act must be consistent with the regional plan then
11in existence of any metropolitan planning organization in whose
12boundaries the project is located.
 
13    Section 20. Procurement process.
14    (a) A transportation agency seeking to enter into a
15public-private partnership with a private entity for the
16development, finance, and operation of a transportation
17facility as a transportation project shall determine and set
18forth the criteria for the selection process. The
19transportation agency shall use (i) a competitive sealed
20bidding process, (ii) a competitive sealed proposal process, or
21(iii) a design-build procurement process in accordance with
22Section 25 of this Act. Before using one of these processes the
23transportation agency may use a request for information to
24obtain information relating to possible public-private
25partnerships.

 

 

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1    The selection of professional design firms by a
2transportation agency or private entity shall comply with the
3Architectural, Engineering, and Land Surveying Qualifications
4Based Selection Act or Section 25 of this Act.
5    Nothing in this Act shall preclude a public agency,
6including the Department or the Authority, from submitting a
7proposal to develop or operate, or to develop and operate, a
8transportation facility as a transportation project. The
9transportation agency shall give a proposal submitted by a
10public agency equal consideration as it gives proposals
11submitted by private entities, and, for that purpose, treat the
12public agency as a private entity.
13    All procurement processes shall incorporate requirements
14and set forth goals for participation by disadvantaged business
15enterprises as allowed under State and federal law.
16    (b) The transportation agency shall establish a process for
17prequalification of all potential private entities. The
18transportation agency shall: (i) provide a public notice of the
19prequalification process for such period as deemed appropriate
20by the agency; (ii) set forth requirements and evaluation
21criteria in order to become prequalified; (iii) determine which
22private entities that have submitted prequalification
23applications, if any, meet the requirements and evaluation
24criteria; and (iv) allow only those entities that have been
25prequalified to submit proposals or bids. The transportation
26agency shall make publicly available on its website during the

 

 

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1request for qualifications period information regarding firms
2that are prequalified by the transportation agency pursuant to
3Section 20 of the Architectural, Engineering, and Land
4Surveying Qualifications Based Selection Act to provide
5architectural, engineering, and land surveying services and
6shall require the use of such firms for such services.
7    (c) Competitive sealed bidding requirements:
8        (1) All contracts shall be awarded by competitive
9    sealed bidding except as otherwise provided in subsection
10    (d) of this Section and Section 25 of this Act.
11        (2) An invitation for bids shall be issued and shall
12    include a description of the public-private partnership
13    with a private entity for the development, finance, and
14    operation of a transportation facility as a transportation
15    project, and the material contractual terms and conditions
16    applicable to the procurement.
17        (3) Public notice of the invitation for bids shall be
18    published in the State of Illinois Procurement Bulletin at
19    least 21 days before the date set in the invitation for the
20    opening of bids.
21        (4) Bids shall be opened publicly in the presence of
22    one or more witnesses at the time and place designated in
23    the invitation for bids. The name of each bidder, the
24    amount of each bid, and other relevant information as may
25    be specified by rule shall be recorded. After the award of
26    the contract, the winning bid and the record of each

 

 

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1    unsuccessful bid shall be open to public inspection.
2        (5) Bids shall be unconditionally accepted without
3    alteration or correction, except as authorized in this Act.
4    Bids shall be evaluated based on the requirements set forth
5    in the invitation for bids, which may include criteria to
6    determine acceptability such as inspection, testing,
7    quality, workmanship, delivery, and suitability for a
8    particular purpose. Those criteria that will affect the bid
9    price and be considered in evaluation for award, such as
10    discounts, transportation costs, and total or life cycle
11    costs, shall be objectively measurable. The invitation for
12    bids shall set forth the evaluation criteria to be used.
13        (6) Correction or withdrawal of inadvertently
14    erroneous bids before or after award, or cancellation of
15    awards of contracts based on bid mistakes, shall be
16    permitted in accordance with rules. After bid opening, no
17    changes in bid prices or other provisions of bids
18    prejudicial to the interest of the State or fair
19    competition shall be permitted. All decisions to permit the
20    correction or withdrawal of bids based on bid mistakes
21    shall be supported by written determination made by the
22    transportation agency.
23        (7) The contract shall be awarded with reasonable
24    promptness by written notice to the lowest responsible and
25    responsive bidder whose bid meets the requirements and
26    criteria set forth in the invitation for bids, except when

 

 

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1    the transportation agency determines it is not in the best
2    interest of the State and by written explanation determines
3    another bidder shall receive the award. The explanation
4    shall appear in the appropriate volume of the State of
5    Illinois Procurement Bulletin. The written explanation
6    must include:
7            (A) a description of the agency's needs;
8            (B) a determination that the anticipated cost will
9        be fair and reasonable;
10            (C) a listing of all responsible and responsive
11        bidders; and
12            (D) the name of the bidder selected, pricing, and
13        the reasons for selecting that bidder.
14        (8) When it is considered impracticable to initially
15    prepare a purchase description to support an award based on
16    price, an invitation for bids may be issued requesting the
17    submission of unpriced offers to be followed by an
18    invitation for bids limited to those bidders whose offers
19    have been qualified under the criteria set forth in the
20    first solicitation.
21    (d) Competitive sealed proposal requirements:
22        (1) When the transportation agency determines in
23    writing that the use of competitive sealed bidding or
24    design-build procurement is either not practicable or not
25    advantageous to the State, a contract may be entered into
26    by competitive sealed proposals.

 

 

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1        (2) Proposals shall be solicited through a request for
2    proposals.
3        (3) Public notice of the request for proposals shall be
4    published in the State of Illinois Procurement Bulletin at
5    least 21 days before the date set in the invitation for the
6    opening of proposals.
7        (4) Proposals shall be opened publicly in the presence
8    of one or more witnesses at the time and place designated
9    in the request for proposals, but proposals shall be opened
10    in a manner to avoid disclosure of contents to competing
11    offerors during the process of negotiation. A record of
12    proposals shall be prepared and shall be open for public
13    inspection after contract award.
14        (5) The requests for proposals shall state the relative
15    importance of price and other evaluation factors.
16    Proposals shall be submitted in 2 parts: (i) covering items
17    except price; and (ii) covering price. The first part of
18    all proposals shall be evaluated and ranked independently
19    of the second part of all proposals.
20        (6) As provided in the request for proposals and under
21    any applicable rules, discussions may be conducted with
22    responsible offerors who submit proposals determined to be
23    reasonably susceptible of being selected for award for the
24    purpose of clarifying and assuring full understanding of
25    and responsiveness to the solicitation requirements. Those
26    offerors shall be accorded fair and equal treatment with

 

 

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1    respect to any opportunity for discussion and revision of
2    proposals. Revisions may be permitted after submission and
3    before award for the purpose of obtaining best and final
4    offers. In conducting discussions there shall be no
5    disclosure of any information derived from proposals
6    submitted by competing offerors. If information is
7    disclosed to any offeror, it shall be provided to all
8    competing offerors.
9        (7) Awards shall be made to the responsible offeror
10    whose proposal is determined in writing to be the most
11    advantageous to the State, taking into consideration price
12    and the evaluation factors set forth in the request for
13    proposals. The contract file shall contain the basis on
14    which the award is made.
15    (e) In the case of a proposal or proposals to the
16Department or the Authority, the transportation agency shall
17determine, based on its review and evaluation of the proposal
18or proposals received in response to the request for proposals,
19which one or more proposals, if any, best serve the public
20purpose of this Act and satisfy the criteria set forth in the
21request for proposals and, with respect to such proposal or
22proposals, shall:
23        (1) submit the proposal or proposals to the Commission
24    on Government Forecasting and Accountability, which,
25    within 20 days of submission by the transportation agency,
26    shall complete a review of the proposal or proposals and

 

 

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1    report on the value of the proposal or proposals to the
2    State;
3        (2) hold one or more public hearings on the proposal or
4    proposals, publish notice of the hearing or hearings at
5    least 7 days before the hearing, and include the following
6    in the notice: (i) the date, time, and place of the hearing
7    and the address of the transportation agency, (ii) the
8    subject matter of the hearing, (iii) a description of the
9    agreement to be awarded, (iv) the determination made by the
10    transportation agency that such proposal or proposals best
11    serve the public purpose of this Act and satisfy the
12    criteria set forth in the request for proposals, and (v)
13    that the public may be heard on the proposal or proposals
14    during the public hearing; and
15        (3) determine whether or not to recommend to the
16    Governor that the Governor approve the proposal or
17    proposals.
18    The Governor may approve one or more proposals recommended
19by the Department or the Authority based upon the review,
20evaluation, and recommendation of the transportation agency,
21the review and report of the Commission on Government
22Forecasting and Accountability, the public hearing, and the
23best interests of the State.
24    (f) In addition to any other rights under this Act, in
25connection with any procurement under this Act, the following
26rights are reserved to each transportation agency:

 

 

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1        (1) to withdraw a request for information, a request
2    for qualifications, or a request for proposals at any time,
3    and to publish a new request for information, request for
4    qualifications, or request for proposals;
5        (2) to not approve a proposal for any reason;
6        (3) to not award a public-private agreement for any
7    reason;
8        (4) to request clarifications to any statement of
9    information, qualifications, or proposal received, to seek
10    one or more revised proposals or one or more best and final
11    offers, or to conduct negotiations with one or more private
12    entities that have submitted proposals;
13        (5) to modify, during the pendency of a procurement,
14    the terms, provisions, and conditions of a request for
15    information, request for qualifications, or request for
16    proposals or the technical specifications or form of a
17    public-private agreement;
18        (6) to interview proposers; and
19        (7) any other rights available to the transportation
20    agency under applicable law and regulations.
21    (g) If a proposal is approved, the transportation agency
22shall execute the public-private agreement, publish notice of
23the execution of the public-private agreement on its website
24and in a newspaper or newspapers of general circulation within
25the county or counties in which the transportation project is
26to be located, and publish the entire agreement on its website.

 

 

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1Any action to contest the validity of a public-private
2agreement entered into under this Act must be brought no later
3than 60 days after the date of publication of the notice of
4execution of the public-private agreement.
5    (h) For any transportation project with an estimated
6construction cost of over $50,000,000, the transportation
7agency may also require the approved proposer to pay the costs
8for an independent audit of any and all traffic and cost
9estimates associated with the approved proposal, as well as a
10review of all public costs and potential liabilities to which
11taxpayers could be exposed (including improvements to other
12transportation facilities that may be needed as a result of the
13approved proposal, failure by the approved proposer to
14reimburse the transportation agency for services provided, and
15potential risk and liability in the event the approved proposer
16defaults on the public-private agreement or on bonds issued for
17the project). If required by the transportation agency, this
18independent audit must be conducted by an independent
19consultant selected by the transportation agency, and all
20information from the review must be fully disclosed.
21    (i) The transportation agency may also apply for, execute,
22or endorse applications submitted by private entities to obtain
23federal credit assistance for qualifying projects developed or
24operated pursuant to this Act.
 
25    Section 25. Design-build procurement.

 

 

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1    (a) This Section 25 shall apply only to transportation
2projects for which the Department or the Authority intends to
3execute a design-build agreement, in which case the Department
4or the Authority shall abide by the requirements and procedures
5of this Section 25 in addition to other applicable requirements
6and procedures set forth in this Act.
7    (b)(1) The transportation agency must issue a notice of
8intent to receive proposals for the project at least 14 days
9before issuing the request for the qualifications. The
10transportation agency must publish the advance notice in a
11daily newspaper of general circulation in the county where the
12transportation agency is located. The transportation agency is
13encouraged to use publication of the notice in related
14construction industry service publications. A brief
15description of the proposed procurement must be included in the
16notice. The transportation agency must provide a copy of the
17request for qualifications to any party requesting a copy.
18    (2) The request for qualifications shall be prepared for
19each project and must contain, without limitation, the
20following information: (i) the name of the transportation
21agency; (ii) a preliminary schedule for the completion of the
22contract; (iii) the proposed budget for the project, the source
23of funds, and the currently available funds at the time the
24request for proposal is submitted; (iv) prequalification
25criteria for design-build entities wishing to submit proposals
26(the transportation agency shall include, at a minimum, its

 

 

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1normal prequalification, licensing, registration, and other
2requirements, but nothing contained herein precludes the use of
3additional prequalification criteria by the transportation
4agency); (v) material requirements of the contract, including
5but not limited to, the proposed terms and conditions, required
6performance and payment bonds, insurance, and the entity's plan
7to comply with the utilization goals established by the
8corporate authorities of the transportation agency for
9minority and women business enterprises and to comply with
10Section 2-105 of the Illinois Human Rights Act; (vi) the
11performance criteria; (vii) the evaluation criteria for each
12phase of the solicitation; and (viii) the number of entities
13that will be considered for the request for proposals phase.
14    (3) The transportation agency may include any other
15relevant information in the request for qualifications that it
16chooses to supply. The private entity shall be entitled to rely
17upon the accuracy of this documentation in the development of
18its statement of qualifications and its proposal.
19    (4) The date that statements of qualifications are due must
20be at least 21 calendar days after the date of the issuance of
21the request for qualifications. In the event the cost of the
22project is estimated to exceed $12,000,000, then the statement
23of qualifications due date must be at least 28 calendar days
24after the date of the issuance of the request for
25qualifications. The transportation agency shall include in the
26request for proposals a minimum of 30 days to develop the

 

 

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1proposals after the selection of entities from the evaluation
2of the statements of qualifications is completed.
3    (c)(1) The transportation agency shall develop, with the
4assistance of a licensed design professional, the request for
5qualifications and the request for proposals, which shall
6include scope and performance criteria. The scope and
7performance criteria must be in sufficient detail and contain
8adequate information to reasonably apprise the private
9entities of the transportation agency's overall programmatic
10needs and goals, including criteria and preliminary design
11plans, general budget parameters, schedule, and delivery
12requirements.
13    (2) Each request for qualifications and request for
14proposals shall also include a description of the level of
15design to be provided in the proposals. This description must
16include the scope and type of renderings, drawings, and
17specifications that, at a minimum, will be required by the
18transportation agency to be produced by the private entities.
19    (3) The scope and performance criteria shall be prepared by
20a design professional who is an employee of the transportation
21agency, or the transportation agency may contract with an
22independent design professional selected under the
23Architectural, Engineering, and Land Surveying Qualifications
24Based Selection Act to provide these services.
25    (4) The design professional that prepares the scope and
26performance criteria is prohibited from participating in any

 

 

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1private entity proposal for the project.
2    (d)(1) The transportation agency must use a two phase
3procedure for the selection of the successful design-build
4entity. The request for qualifications phase will evaluate and
5shortlist the private entities based on qualifications, and the
6request for proposals will evaluate the technical and cost
7proposals.
8    (2) The transportation agency shall include in the request
9for qualifications the evaluating factors to be used in the
10request for qualifications phase. These factors are in addition
11to any prequalification requirements of private entities that
12the transportation agency has set forth. Each request for
13qualifications shall establish the relative importance
14assigned to each evaluation factor and subfactor, including any
15weighting of criteria to be employed by the transportation
16agency. The transportation agency must maintain a record of the
17evaluation scoring to be disclosed in event of a protest
18regarding the solicitation.
19    The transportation agency shall include the following
20criteria in every request for qualifications phase evaluation
21of private entities: (i) experience of personnel; (ii)
22successful experience with similar project types; (iii)
23financial capability; (iv) timeliness of past performance; (v)
24experience with similarly sized projects; (vi) successful
25reference checks of the firm; (vii) commitment to assign
26personnel for the duration of the project and qualifications of

 

 

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1the entity's consultants; and (viii) ability or past
2performance in meeting or exhausting good faith efforts to meet
3the utilization goals for business enterprises established in
4the Business Enterprise for Minorities, Females, and Persons
5with Disabilities Act and in complying with Section 2-105 of
6the Illinois Human Rights Act. No proposal shall be considered
7that does not include an entity's plan to comply with the
8requirements established in the minority and women business
9enterprises and economically disadvantaged firms established
10by the corporate authorities of the transportation agency and
11with Section 2-105 of the Illinois Human Rights Act. The
12transportation agency may include any additional relevant
13criteria in the request for qualifications phase that it deems
14necessary for a proper qualification review.
15    Upon completion of the qualifications evaluation, the
16transportation agency shall create a shortlist of the most
17highly qualified private entities.
18    The transportation agency shall notify the entities
19selected for the shortlist in writing. This notification shall
20commence the period for the preparation of the request for
21proposals phase technical and cost evaluations. The
22transportation agency must allow sufficient time for the
23shortlist entities to prepare their proposals considering the
24scope and detail requested by the transportation agency.
25    (3) The transportation agency shall include in the request
26for proposals the evaluating factors to be used in the

 

 

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1technical and cost submission components. Each request for
2proposals shall establish, for both the technical and cost
3submission components, the relative importance assigned to
4each evaluation factor and subfactor, including any weighting
5of criteria to be employed by the transportation agency. The
6transportation agency must maintain a record of the evaluation
7scoring to be disclosed in event of a protest regarding the
8solicitation.
9    The transportation agency shall include the following
10criteria in every request for proposals phase technical
11evaluation of private entities: (i) compliance with objectives
12of the project; (ii) compliance of proposed services to the
13request for proposal requirements; (iii) quality of products or
14materials proposed; (iv) quality of design parameters; (v)
15design concepts; (vi) innovation in meeting the scope and
16performance criteria; and (vii) constructability of the
17proposed project. The transportation agency may include any
18additional relevant technical evaluation factors it deems
19necessary for proper selection.
20    The transportation agency shall include the following
21criteria in every request for proposals phase cost evaluation:
22the total project cost and the time of completion. The
23transportation agency may include any additional relevant
24technical evaluation factors it deems necessary for proper
25selection. The guaranteed maximum project cost criteria
26weighing factor shall not exceed 30%.

 

 

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1    The transportation agency shall directly employ or retain a
2licensed design professional to evaluate the technical and cost
3submissions to determine if the technical submissions are in
4accordance with generally accepted industry standards.
5    (e) Statements of qualifications and proposals must be
6properly identified and sealed. Statements of qualifications
7and proposals may not be reviewed until after the deadline for
8submission has passed as set forth in the request for
9qualifications or the request for proposals. All private
10entities submitting statements of qualifications or proposals
11shall be disclosed after the deadline for submission, and all
12private entities who are selected for request for proposals
13phase evaluation shall also be disclosed at the time of that
14determination.
15    Phase II design-build proposals shall include a bid bond in
16the form and security as designated in the request for
17proposals. Proposals shall also contain a separate sealed
18envelope with the cost information within the overall proposal
19submission. Proposals shall include a list of all design
20professionals and other entities to which any work identified
21in Section 30-30 of the Illinois Procurement Code as a
22subdivision of construction work may be subcontracted during
23the performance of the contract.
24    Statements of qualifications and proposals must meet all
25material requirements of the request for qualifications or
26request for proposals, or else they may be rejected as

 

 

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1non-responsive. The transportation agency shall have the right
2to reject any and all statements of qualifications and
3proposals.
4    The drawings and specifications of any unsuccessful
5statement of qualifications or proposal shall remain the
6property of the private entity.
7    The transportation agency shall review the statements of
8qualifications and the proposals for compliance with the
9performance criteria and evaluation factors.
10    Statements of qualifications and proposals may be
11withdrawn prior to the due date and time for submissions for
12any cause. After evaluation begins by the transportation
13agency, clear and convincing evidence of error is required for
14withdrawal.
 
15    Section 30. Interim agreements.
16    (a) Prior to or in connection with the negotiation of the
17public-private agreement, the transportation agency may enter
18into an interim agreement with the approved proposer. Such
19interim agreement may:
20        (1) permit the approved proposer to commence
21    activities relating to a proposed project as the
22    transportation agency and the approved proposer shall
23    agree to and for which the approved proposer may be
24    compensated, including, but not limited to, project
25    planning, advance right-of-way acquisition, design and

 

 

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1    engineering, environmental analysis and mitigation,
2    survey, conducting transportation and revenue studies, and
3    ascertaining the availability of financing for the
4    proposed facility or facilities;
5        (2) establish the process and timing of the exclusive
6    negotiation of a public-private agreement with an approved
7    proposer;
8        (3) require that in the event the transportation agency
9    determines not to proceed with a project after the approved
10    proposer and the transportation agency have executed an
11    interim agreement, and thereby terminates the interim
12    agreement or declines to proceed with negotiation of a
13    public-private agreement with an approved proposer, the
14    transportation agency shall pay to the approved proposer
15    certain fees and costs incurred by the approved proposer;
16        (4) establish the ownership in the State or in the
17    Authority of the concepts and designs in the event of
18    termination of the interim agreement;
19        (5) establish procedures for the selection of
20    professional design firms and subcontractors, which shall
21    include procedures consistent with the Architectural,
22    Engineering, and Land Surveying Qualifications Based
23    Selection Act for the selection of design professional
24    firms and may include, in the discretion of the
25    transportation agency, procedures consistent with the low
26    bid procurement procedures outlined in the Illinois

 

 

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1    Procurement Code for the selection of construction
2    companies; and
3        (6) contain any other provisions related to any aspect
4    of the transportation project that the parties may deem
5    appropriate.
6    (b) A transportation agency may enter into an interim
7agreement with multiple approved proposers if the
8transportation agency determines in writing that it is in the
9public interest to do so.
10    (c) The approved proposer shall select firms that are
11prequalified by the transportation agency pursuant to Section
1220 of the Architectural, Engineering, and Land Surveying
13Qualifications Based Selection Act to provide architectural,
14engineering, and land surveying services to undertake
15activities related to the transportation project.
 
16    Section 35. Public-private agreements.
17    (a) Unless undertaking actions otherwise permitted in an
18interim agreement entered into under Section 30 of this Act,
19before developing, financing, or operating the transportation
20project, the approved proposer shall enter into a
21public-private agreement with the transportation agency.
22Subject to the requirements of this Act, a public-private
23agreement may provide that the approved proposer, acting on
24behalf of the transportation agency, is partially or entirely
25responsible for any combination of developing, financing, or

 

 

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1operating the transportation project under terms set forth in
2the public-private agreement.
3    (b) The public-private agreement may, as determined
4appropriate by the transportation agency for the particular
5transportation project, provide for some or all of the
6following:
7        (1) Construction, financing, and operation of the
8    transportation project under terms set forth in the
9    public-private agreement, in any form as deemed
10    appropriate by the transportation agency, including, but
11    not limited to, a long-term concession and lease, a
12    design-bid-build agreement, a design-build agreement, a
13    design-build-maintain agreement, a
14    design-build-operate-maintain agreement and a
15    design-build-finance-operate-maintain agreement.
16        (2) Delivery of performance and payment bonds or other
17    performance security determined suitable by the
18    transportation agency, including letters of credit, United
19    States bonds and notes, parent guaranties, and cash
20    collateral, in connection with the development, financing,
21    or operation of the transportation project, in the forms
22    and amounts set forth in the public-private agreement or
23    otherwise determined as satisfactory by the transportation
24    agency to protect the transportation agency and payment
25    bond beneficiaries who have a direct contractual
26    relationship with the contractor or a subcontractor of the

 

 

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1    contractor to supply labor or material. The payment or
2    performance bond or alternative form of performance
3    security is not required for the portion of a
4    public-private agreement that includes only design,
5    planning, or financing services, the performance of
6    preliminary studies, or the acquisition of real property.
7        (3) Review of plans for any development or operation,
8    or both, of the transportation project by the
9    transportation agency.
10        (4) Inspection of any construction of or improvements
11    to the transportation project by the transportation agency
12    or another entity designated by the transportation agency
13    or under the public-private agreement to ensure that the
14    construction or improvements conform to the standards set
15    forth in the public-private agreement or are otherwise
16    acceptable to the transportation agency.
17        (5) Maintenance of:
18            (A) one or more policies of public liability
19        insurance (copies of which shall be filed with the
20        transportation agency accompanied by proofs of
21        coverage); or
22            (B) self-insurance;
23    each in form and amount as set forth in the public-private
24    agreement or otherwise satisfactory to the transportation
25    agency as reasonably sufficient to insure coverage of tort
26    liability to the public and employees and to enable the

 

 

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1    continued operation of the transportation project.
2        (6) Where operations are included within the
3    contractor's obligations under the public-private
4    agreement, monitoring of the maintenance practices of the
5    contractor by the transportation agency or another entity
6    designated by the transportation agency or under the
7    public-private agreement and the taking of the actions the
8    transportation agency finds appropriate to ensure that the
9    transportation project is properly maintained.
10        (7) Reimbursement to be paid to the transportation
11    agency as set forth in the public-private agreement for
12    services provided by the transportation agency.
13        (8) Filing of appropriate financial statements and
14    reports as set forth in the public-private agreement or as
15    otherwise in a form acceptable to the transportation agency
16    on a periodic basis.
17        (9) Compensation or payments to the contractor.
18    Compensation or payments may include any or a combination
19    of the following:
20            (A) a base fee and additional fee for project
21        savings as the design-builder of a construction
22        project;
23            (B) a development fee, payable on a lump-sum basis,
24        progress payment basis, time and materials basis, or
25        another basis deemed appropriate by the transportation
26        agency;

 

 

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1            (C) an operations fee, payable on a lump-sum basis,
2        time and material basis, periodic basis, or another
3        basis deemed appropriate by the transportation agency;
4            (D) some or all of the revenues, if any, arising
5        out of operation of the transportation project;
6            (E) a maximum rate of return on investment or
7        return on equity or a combination of the two;
8            (F) in-kind services, materials, property,
9        equipment, or other items;
10            (G) compensation in the event of any termination;
11            (H) availability payments or similar arrangements
12        whereby payments are made to the contractor pursuant to
13        the terms set forth in the public-private agreement or
14        related agreements; or
15            (I) other compensation set forth in the
16        public-private agreement or otherwise deemed
17        appropriate by the transportation agency.
18        (10) Compensation or payments to the transportation
19    agency, if any. Compensation or payments may include any or
20    a combination of the following:
21            (A) a concession or lease payment or other fee,
22        which may be payable upfront or on a periodic basis or
23        on another basis deemed appropriate by the
24        transportation agency;
25            (B) sharing of revenues, if any, from the operation
26        of the transportation project;

 

 

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1            (C) sharing of project savings from the
2        construction of the transportation project;
3            (D) payment for any services, materials,
4        equipment, personnel, or other items provided by the
5        transportation agency to the contractor under the
6        public-private agreement or in connection with the
7        transportation project; or
8            (E) other compensation set forth in the
9        public-private agreement or otherwise deemed
10        appropriate by the transportation agency.
11        (11) The date and terms of termination of the
12    contractor's authority and duties under the public-private
13    agreement and the circumstances under which the
14    contractor's authority and duties may be terminated prior
15    to that date.
16        (12) Reversion of the transportation project to the
17    transportation agency at the termination or expiration of
18    the public-private agreement.
19        (13) Rights and remedies of the transportation agency
20    in the event that the contractor defaults or otherwise
21    fails to comply with the terms of the public-private
22    agreement.
23        (14) Procedures for the selection of professional
24    design firms and subcontractors, which shall include
25    procedures consistent with the Architectural, Engineering,
26    and Land Surveying Qualifications Based Selection Act for

 

 

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1    the selection of professional design firms and may include,
2    in the discretion of the transportation agency, procedures
3    consistent with the low bid procurement procedures
4    outlined in the Illinois Procurement Code for the selection
5    of construction companies.
6        (15) Other terms, conditions, and provisions that the
7    transportation agency believes are in the public interest.
8    (c) The transportation agency may fix and revise the
9amounts of user fees that a contractor may charge and collect
10for the use of any part of a transportation project in
11accordance with the public-private agreement. In fixing the
12amounts, the transportation agency may establish maximum
13amounts for the user fees and may provide that the maximums and
14any increases or decreases of those maximums shall be based
15upon the indices, methodologies, or other factors the
16transportation agency considers appropriate.
17    (d) A public-private agreement may:
18        (1) authorize the imposition of tolls in any manner
19    determined appropriate by the transportation agency for
20    the transportation project;
21        (2) authorize the contractor to adjust the user fees
22    for the use of the transportation project, so long as the
23    amounts charged and collected by the contractor do not
24    exceed the maximum amounts established by the
25    transportation agency under this Act;
26        (3) provide that any adjustment by the contractor

 

 

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1    permitted under paragraph (2) of this subsection (d) may be
2    based on the indices, methodologies, or other factors
3    described in the public-private agreement or approved by
4    the transportation agency;
5        (4) authorize the contractor to charge and collect user
6    fees through methods, including, but not limited to,
7    automatic vehicle identification systems, electronic toll
8    collection systems, and, to the extent permitted by law,
9    global positioning system-based, photo-based, or
10    video-based toll collection enforcement, provided that to
11    the maximum extent feasible the contractor will (i) utilize
12    open road tolling methods that allow payment of tolls at
13    highway speeds and (ii) comply with United States
14    Department of Transportation requirements and best
15    practices with respect to tolling methods; and
16        (5) authorize the collection of user fees by a third
17    party.
18    (e) In the public-private agreement, the transportation
19agency may agree to make grants or loans for the development or
20operation, or both, of the transportation project from time to
21time from amounts received from the federal government or any
22agency or instrumentality of the federal government or from any
23State or local agency.
24    (f) Upon the termination or expiration of the
25public-private agreement, including a termination for default,
26the transportation agency shall have the right to take over the

 

 

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1transportation project and to succeed to all of the right,
2title, and interest in the transportation project, subject to
3any liens on revenues previously granted by the contractor to
4any person providing financing for the transportation project.
5Upon termination or expiration of the public-private agreement
6relating to a transportation project undertaken by the
7Department, all real property acquired as a part of the
8transportation project shall be held in the name of the State
9of Illinois. Upon termination or expiration of the
10public-private agreement relating to a transportation project
11undertaken by the Authority, all real property acquired as a
12part of the transportation project shall be held in the name of
13the Authority.
14    (g) If a transportation agency elects to take over a
15transportation project as provided in subsection (f) of this
16Section, the transportation agency may do the following:
17        (1) develop, finance, or operate the project,
18    including through a public-private agreement entered into
19    in accordance with this Act; or
20        (2) impose, collect, retain, and use user fees, if any,
21    for the project.
22    (h) If a transportation agency elects to take over a
23transportation project as provided in subsection (f) of this
24Section, the transportation agency may use the revenues, if
25any, for any lawful purpose, including to:
26        (1) make payments to individuals or entities in

 

 

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1    connection with any financing of the transportation
2    project, including through a public-private agreement
3    entered into in accordance with this Act;
4        (2) permit a contractor to receive some or all of the
5    revenues under a public-private agreement entered into
6    under this Act;
7        (3) pay development costs of the project;
8        (4) pay current operation costs of the project or
9    facilities;
10        (5) pay the contractor for any compensation or payment
11    owing upon termination; and
12        (6) pay for the development, financing, or operation of
13    any other project or projects the transportation agency
14    deems appropriate.
15    (i) The full faith and credit of the State or any political
16subdivision of the State or the transportation agency is not
17pledged to secure any financing of the contractor by the
18election to take over the transportation project. Assumption of
19development or operation, or both, of the transportation
20project does not obligate the State or any political
21subdivision of the State or the transportation agency to pay
22any obligation of the contractor.
23    (j) The transportation agency may enter into a
24public-private agreement with multiple approved proposers if
25the transportation agency determines in writing that it is in
26the public interest to do so.

 

 

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1    (k) A public-private agreement shall not include any
2provision under which the transportation agency agrees to
3restrict or to provide compensation to the private entity for
4the construction or operation of a competing transportation
5facility during the term of the public-private agreement.
6    (l) With respect to a public-private agreement entered into
7by the Department, the Department shall certify in its State
8budget request to the Governor each year the amount required by
9the Department during the next State fiscal year to enable the
10Department to make any payment obligated to be made by the
11Department pursuant to that public-private agreement, and the
12Governor shall include that amount in the State budget
13submitted to the General Assembly.
 
14    Section 40. Development and operations standards for
15transportation projects.
16    (a) The plans and specifications, if any, for each project
17developed under this Act must comply with:
18        (1) the transportation agency's standards for other
19    projects of a similar nature or as otherwise provided in
20    the public-private agreement;
21        (2) the Professional Engineering Practice Act of 1989,
22    the Structural Engineering Practice Act of 1989, the
23    Illinois Architecture Practice Act of 1989, the
24    requirements of Section 30-22 of the Illinois Procurement
25    Code as they apply to responsible bidders, and the Illinois

 

 

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1    Professional Land Surveyor Act of 1989; and
2        (3) any other applicable State or federal standards.
3    (b) Each highway project constructed or operated under this
4Act is considered to be part of:
5        (1) the State highway system for purposes of
6    identification, maintenance standards, and enforcement of
7    traffic laws if the highway project is under the
8    jurisdiction of the Department; or
9        (2) the toll highway system for purposes of
10    identification, maintenance standards, and enforcement of
11    traffic laws if the highway project is under the
12    jurisdiction of the Authority.
13    (c) Any unit of local government or State agency may enter
14into agreements with the contractor for maintenance or other
15services under this Act.
16    (d) Any electronic toll collection system used on a toll
17highway, bridge, or tunnel as part of a transportation project
18must be compatible with the electronic toll collection system
19used by the Authority. The Authority is authorized to
20construct, operate, and maintain any electronic toll
21collection system used on a toll highway, bridge, or tunnel as
22part of a transportation project pursuant to an agreement with
23the transportation agency or the contractor responsible for the
24transportation project.
 
25    Section 45. Financial arrangements.

 

 

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1    (a) The transportation agency may do any combination of
2applying for, executing, or endorsing applications submitted
3by private entities to obtain federal, State, or local credit
4assistance for transportation projects developed, financed, or
5operated under this Act, including loans, lines of credit, and
6guarantees.
7    (b) The transportation agency may take any action to obtain
8federal, State, or local assistance for a transportation
9project that serves the public purpose of this Act and may
10enter into any contracts required to receive the federal
11assistance. The transportation agency may determine that it
12serves the public purpose of this Act for all or any portion of
13the costs of a transportation project to be paid, directly or
14indirectly, from the proceeds of a grant or loan, line of
15credit, or loan guarantee made by a local, State, or federal
16government or any agency or instrumentality of a local, State,
17or federal government. Such assistance may include, but not be
18limited to, federal credit assistance pursuant to the
19Transportation Infrastructure Finance and Innovation Act
20(TIFIA).
21    (c) The transportation agency may agree to make grants or
22loans for the development, financing, or operation of a
23transportation project from time to time, from amounts received
24from the federal, State, or local government or any agency or
25instrumentality of the federal, State, or local government.
26    (d) Any financing of a transportation project may be in the

 

 

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1amounts and upon the terms and conditions that are determined
2by the parties to the public-private agreement.
3    (e) For the purpose of financing a transportation project,
4the contractor and the transportation agency may do the
5following:
6        (1) propose to use any and all revenues that may be
7    available to them;
8        (2) enter into grant agreements;
9        (3) access any other funds available to the
10    transportation agency; and
11        (4) accept grants from the transportation agency or
12    other public or private agency or entity.
13    (f) For the purpose of financing a transportation project,
14public funds may be used and mixed and aggregated with funds
15provided by or on behalf of the contractor or other private
16entities.
17    (g) For the purpose of financing a transportation project,
18each transportation agency is authorized to do any combination
19of applying for, executing, or endorsing applications for an
20allocation of tax-exempt bond financing authorization provided
21by Section 142(m) of the United States Internal Revenue Code,
22as well as financing available under any other federal law or
23program.
24    (h) Any bonds, debt, or other securities or other financing
25issued for the purposes of this Act shall not be deemed to
26constitute a debt of the State or any political subdivision of

 

 

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1the State or a pledge of the faith and credit of the State or
2any political subdivision of the State.
 
3    Section 50. Acquisition of property.
4    (a) The transportation agency may exercise any power of
5condemnation or eminent domain, including quick-take powers,
6that it has under law, including, in the case of the
7Department, all powers for acquisition of property rights
8granted it in the Illinois Highway Code, for the purpose of
9acquiring any lands or estates or interests in land for a
10transportation project to the extent provided in the
11public-private agreement or otherwise to the extent that the
12transportation agency finds that the action serves the public
13purpose of this Act and deems it appropriate in the exercise of
14its powers under this Act.
15    (b) The transportation agency and a contractor may enter
16into the leases, licenses, easements, and other grants of
17property interests that the transportation agency determines
18necessary to carry out this Act.
 
19    Section 55. Labor.
20    (a) A public-private agreement related to a transportation
21project pertaining to the building, altering, repairing,
22maintaining, improving, or demolishing a transportation
23facility shall require the contractor and all subcontractors to
24comply with the requirements of Section 30-22 of the Illinois

 

 

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1Procurement Code as they apply to responsible bidders and to
2present satisfactory evidence of that compliance to the
3transportation agency, unless the transportation project is
4federally funded and the application of those requirements
5would jeopardize the receipt or use of federal funds in support
6of the transportation project.
7    (b) A public-private agreement related to a transportation
8project pertaining to a new transportation facility shall
9require the contractor to enter into a project labor agreement
10utilized by the Department.
 
11    Section 60. Law enforcement.
12    (a) All law enforcement officers of the State and of each
13affected local jurisdiction have the same powers and
14jurisdiction within the limits of the transportation facility
15as they have in their respective areas of jurisdiction.
16    (b) Law enforcement officers shall have access to the
17transportation facility at any time for the purpose of
18exercising the law enforcement officers' powers and
19jurisdiction.
20    (c) The traffic and motor vehicle laws of the State of
21Illinois or, if applicable, any local jurisdiction shall be the
22same as those applying to conduct on similar projects in the
23State of Illinois or the local jurisdiction.
24    (d) Punishment for infractions and offenses shall be as
25prescribed by law for conduct occurring on similar projects in

 

 

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1the State of Illinois or the local jurisdiction.
 
2    Section 65. Term of agreement; reversion of property to
3transportation agency.
4    (a) The term of a public-private agreement, including all
5extensions, may not exceed 99 years.
6    (b) The transportation agency shall terminate the
7contractor's authority and duties under the public-private
8agreement on the date set forth in the public-private
9agreement.
10    (c) Upon termination of the public-private agreement, the
11authority and duties of the contractor under this Act cease,
12except for those duties and obligations that extend beyond the
13termination, as set forth in the public-private agreement, and
14all interests in the transportation facility shall revert to
15the transportation agency.
 
16    Section 70. Additional powers of transportation agencies
17with respect to transportation projects.
18    (a) Each transportation agency may exercise any powers
19provided under this Act in participation or cooperation with
20any governmental entity and enter into any contracts to
21facilitate that participation or cooperation without
22compliance with any other statute. Each transportation agency
23shall cooperate with each other and with other governmental
24entities in carrying out transportation projects under this

 

 

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1Act.
2    (b) Each transportation agency may make and enter into all
3contracts and agreements necessary or incidental to the
4performance of the transportation agency's duties and the
5execution of the transportation agency's powers under this Act.
6Except as otherwise required by law, these contracts or
7agreements are not subject to any approvals other than the
8approval of the transportation agency and may be for any term
9of years and contain any terms that are considered reasonable
10by the transportation agency.
11    (c) Each transportation agency may pay the costs incurred
12under a public-private agreement entered into under this Act
13from any funds available to the transportation agency under
14this Act or any other statute.
15    (d) A transportation agency or other State agency may not
16take any action that would impair a public-private agreement
17entered into under this Act.
18    (e) Each transportation agency may enter into an agreement
19between and among the contractor, the transportation agency,
20and the Department of State Police concerning the provision of
21law enforcement assistance with respect to a transportation
22project that is the subject of a public-private agreement under
23this Act.
24    (f) Each transportation agency is authorized to enter into
25arrangements with the Department of State Police related to
26costs incurred in providing law enforcement assistance under

 

 

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1this Act.
 
2    Section 75. Prohibited local action. A unit of local
3government may not take any action that would have the effect
4of impairing a public-private agreement under this Act,
5provided that this Section 75 shall not diminish any existing
6police power or other power provided by law to a unit of local
7government.
 
8    Section 80. Powers liberally construed. The powers
9conferred by this Act shall be liberally construed in order to
10accomplish their purposes and shall be in addition and
11supplemental to the powers conferred by any other law. If any
12other law or rule is inconsistent with this Act, this Act is
13controlling as to any public-private agreement entered into
14under this Act. To implement the powers conferred by this Act,
15the transportation agency may establish rules and procedures
16for the procurement of a public-private agreement under this
17Act. Nothing contained in this Act is intended to supersede
18applicable federal law or to foreclose the use or potential use
19of federal funds. In the event any provision of this Act is
20inconsistent with applicable federal law or would have the
21effect of foreclosing the use or potential use of federal
22funds, the applicable federal law or funding condition shall
23prevail, but only to the extent of such inconsistency.
 

 

 

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1    Section 85. Full and complete authority. This Act contains
2full and complete authority for agreements and leases with
3private entities to carry out the activities described in this
4Act. Except as otherwise required by law, no procedure,
5proceedings, publications, notices, consents, approvals,
6orders, or acts by the transportation agency or any other State
7or local agency or official are required to enter into an
8agreement or lease.
 
9    Section 905. The Department of Transportation Law of the
10Civil Administrative Code of Illinois is amended by adding
11Section 2705-222 as follows:
 
12    (20 ILCS 2705/2705-222 new)
13    Sec. 2705-222. Public-private partnerships for
14transportation. The Department may exercise all powers granted
15to it under the Public-Private Partnerships for Transportation
16Act.
 
17    Section 910. The Illinois Finance Authority Act is amended
18by adding Section 825-106 as follows:
 
19    (20 ILCS 3501/825-106 new)
20    Sec. 825-106. Transportation project financing. For the
21purpose of financing a transportation project undertaken under
22the Public-Private Partnerships for Transportation Act, the

 

 

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1Authority is authorized to apply for an allocation of
2tax-exempt bond financing authorization provided by Section
3142(m) of the United States Internal Revenue Code, as well as
4financing available under any other federal law or program.
 
5    Section 915. The Illinois Procurement Code is amended by
6changing Section 1-10 as follows:
 
7    (30 ILCS 500/1-10)
8    Sec. 1-10. Application.
9    (a) This Code applies only to procurements for which
10contractors were first solicited on or after July 1, 1998. This
11Code shall not be construed to affect or impair any contract,
12or any provision of a contract, entered into based on a
13solicitation prior to the implementation date of this Code as
14described in Article 99, including but not limited to any
15covenant entered into with respect to any revenue bonds or
16similar instruments. All procurements for which contracts are
17solicited between the effective date of Articles 50 and 99 and
18July 1, 1998 shall be substantially in accordance with this
19Code and its intent.
20    (b) This Code shall apply regardless of the source of the
21funds with which the contracts are paid, including federal
22assistance moneys. This Code shall not apply to:
23        (1) Contracts between the State and its political
24    subdivisions or other governments, or between State

 

 

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1    governmental bodies except as specifically provided in
2    this Code.
3        (2) Grants, except for the filing requirements of
4    Section 20-80.
5        (3) Purchase of care.
6        (4) Hiring of an individual as employee and not as an
7    independent contractor, whether pursuant to an employment
8    code or policy or by contract directly with that
9    individual.
10        (5) Collective bargaining contracts.
11        (6) Purchase of real estate, except that notice of this
12    type of contract with a value of more than $25,000 must be
13    published in the Procurement Bulletin within 7 days after
14    the deed is recorded in the county of jurisdiction. The
15    notice shall identify the real estate purchased, the names
16    of all parties to the contract, the value of the contract,
17    and the effective date of the contract.
18        (7) Contracts necessary to prepare for anticipated
19    litigation, enforcement actions, or investigations,
20    provided that the chief legal counsel to the Governor shall
21    give his or her prior approval when the procuring agency is
22    one subject to the jurisdiction of the Governor, and
23    provided that the chief legal counsel of any other
24    procuring entity subject to this Code shall give his or her
25    prior approval when the procuring entity is not one subject
26    to the jurisdiction of the Governor.

 

 

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1        (8) Contracts for services to Northern Illinois
2    University by a person, acting as an independent
3    contractor, who is qualified by education, experience, and
4    technical ability and is selected by negotiation for the
5    purpose of providing non-credit educational service
6    activities or products by means of specialized programs
7    offered by the university.
8        (9) Procurement expenditures by the Illinois
9    Conservation Foundation when only private funds are used.
10        (10) Procurement expenditures by the Illinois Health
11    Information Exchange Authority involving private funds
12    from the Health Information Exchange Fund. "Private funds"
13    means gifts, donations, and private grants.
14        (11) Public-private agreements entered into according
15    to the procurement requirements of Section 20 of the
16    Public-Private Partnerships for Transportation Act and
17    design-build agreements entered into according to the
18    procurement requirements of Section 25 of the
19    Public-Private Partnerships for Transportation Act.
20    (c) This Code does not apply to the electric power
21procurement process provided for under Section 1-75 of the
22Illinois Power Agency Act and Section 16-111.5 of the Public
23Utilities Act.
24    (d) Except for Section 20-160 and Article 50 of this Code,
25and as expressly required by Section 9.1 of the Illinois
26Lottery Law, the provisions of this Code do not apply to the

 

 

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1procurement process provided for under Section 9.1 of the
2Illinois Lottery Law.
3(Source: P.A. 95-481, eff. 8-28-07; 95-615, eff. 9-11-07;
495-876, eff. 8-21-08; 96-840, eff. 12-23-09; 96-1331, eff.
57-27-10.)
 
6    Section 920. The Public Construction Bond Act is amended by
7adding Section 1.7 as follows:
 
8    (30 ILCS 550/1.7 new)
9    Sec. 1.7. Public-private agreements. This Act applies to
10any public-private agreement entered into under the
11Public-Private Partnerships for Transportation Act.
 
12    Section 925. The Employment of Illinois Workers on Public
13Works Act is amended by adding Section 2.7 as follows:
 
14    (30 ILCS 570/2.7 new)
15    Sec. 2.7. Public-private agreements. This Act applies to
16any public-private agreement entered into under the
17Public-Private Partnerships for Transportation Act.
 
18    Section 930. The Business Enterprise for Minorities,
19Females, and Persons with Disabilities Act is amended by adding
20Section 2.7 as follows:
 

 

 

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1    (30 ILCS 575/2.7 new)
2    Sec. 2.7. Public-private agreements. This Act applies to
3any public-private agreement entered into under the
4Public-Private Partnerships for Transportation Act.
 
5    Section 935. The Retailers' Occupation Tax Act is amended
6by adding Section 1r as follows:
 
7    (35 ILCS 120/1r new)
8    Sec. 1r. Building materials exemption; public-private
9partnership transportation projects.
10    (a) Each retailer that makes a qualified sale of building
11materials to be incorporated into a "project" as defined in the
12Public-Private Partnerships for Transportation Act, by
13remodeling, rehabilitating, or new construction, may deduct
14receipts from those sales when calculating the tax imposed by
15this Act.
16    (b) As used in this Section, "qualified sale" means a sale
17of building materials that will be incorporated into a project
18for which a Certificate of Eligibility for Sales Tax Exemption
19has been issued by the agency having authority over the
20project.
21    (c) To document the exemption allowed under this Section,
22the retailer must obtain from the purchaser a copy of the
23Certificate of Eligibility for Sales Tax Exemption issued by
24the agency having jurisdiction over the project into which the

 

 

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1building materials will be incorporated is located. The
2Certificate of Eligibility for Sales Tax Exemption must contain
3all of the following:
4        (1) statement that the project identified in the
5    Certificate meets all the requirements of the agency having
6    authority over the project;
7        (2) the location or address of the project; and
8        (3) the signature of the director of the agency with
9    authority over the project or the director's delegate.
10    (d) In addition to meeting the requirements of subsection
11(c) of this Act, the retailer must obtain a certificate from
12the purchaser that contains all of the following:
13        (1) a statement that the building materials are being
14    purchased for incorporation into a project in accordance
15    with the Public-Private Partnerships for Transportation
16    Act;
17        (2) the location or address of the project into which
18    the building materials will be incorporated;
19        (3) the name of the project;
20        (4) a description of the building materials being
21    purchased; and
22        (5) the purchaser's signature and date of purchase.
23    (e) This Section is exempt from Section 2-70 of this Act.
 
24    Section 940. The Property Tax Code is amended by changing
25Section 15-55 as follows:
 

 

 

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1    (35 ILCS 200/15-55)
2    Sec. 15-55. State property.
3    (a) All property belonging to the State of Illinois is
4exempt. However, the State agency holding title shall file the
5certificate of ownership and use required by Section 15-10,
6together with a copy of any written lease or agreement, in
7effect on March 30 of the assessment year, concerning parcels
8of 1 acre or more, or an explanation of the terms of any oral
9agreement under which the property is leased, subleased or
10rented.
11    The leased property shall be assessed to the lessee and the
12taxes thereon extended and billed to the lessee, and collected
13in the same manner as for property which is not exempt. The
14lessee shall be liable for the taxes and no lien shall attach
15to the property of the State.
16    For the purposes of this Section, the word "leases"
17includes licenses, franchises, operating agreements and other
18arrangements under which private individuals, associations or
19corporations are granted the right to use property of the
20Illinois State Toll Highway Authority and includes all property
21of the Authority used by others without regard to the size of
22the leased parcel.
23    (b) However, all property of every kind belonging to the
24State of Illinois, which is or may hereafter be leased to the
25Illinois Prairie Path Corporation, shall be exempt from all

 

 

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1assessments, taxation or collection, despite the making of any
2such lease, if it is used for:
3        (1) conservation, nature trail or any other
4    charitable, scientific, educational or recreational
5    purposes with public benefit, including the preserving and
6    aiding in the preservation of natural areas, objects,
7    flora, fauna or biotic communities;
8        (2) the establishment of footpaths, trails and other
9    protected areas;
10        (3) the conservation of the proper use of natural
11    resources or the promotion of the study of plant and animal
12    communities and of other phases of ecology, natural history
13    and conservation;
14        (4) the promotion of education in the fields of nature,
15    preservation and conservation; or
16        (5) similar public recreational activities conducted
17    by the Illinois Prairie Path Corporation.
18    No lien shall attach to the property of the State. No tax
19liability shall become the obligation of or be enforceable
20against Illinois Prairie Path Corporation.
21    (c) If the State sells the James R. Thompson Center or the
22Elgin Mental Health Center and surrounding land located at 750
23S. State Street, Elgin, Illinois, as provided in subdivision
24(a)(2) of Section 7.4 of the State Property Control Act, to
25another entity whose property is not exempt and immediately
26thereafter enters into a leaseback or other agreement that

 

 

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1directly or indirectly gives the State a right to use, control,
2and possess the property, that portion of the property leased
3and occupied exclusively by the State shall remain exempt under
4this Section. For the property to remain exempt under this
5subsection (c), the State must retain an option to purchase the
6property at a future date or, within the limitations period for
7reverters, the property must revert back to the State.
8    If the property has been conveyed as described in this
9subsection (c), the property is no longer exempt pursuant to
10this Section as of the date when:
11        (1) the right of the State to use, control, and possess
12    the property has been terminated; or
13        (2) the State no longer has an option to purchase or
14    otherwise acquire the property and there is no provision
15    for a reverter of the property to the State within the
16    limitations period for reverters.
17    Pursuant to Sections 15-15 and 15-20 of this Code, the
18State shall notify the chief county assessment officer of any
19transaction under this subsection (c). The chief county
20assessment officer shall determine initial and continuing
21compliance with the requirements of this Section for tax
22exemption. Failure to notify the chief county assessment
23officer of a transaction under this subsection (c) or to
24otherwise comply with the requirements of Sections 15-15 and
2515-20 of this Code shall, in the discretion of the chief county
26assessment officer, constitute cause to terminate the

 

 

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1exemption, notwithstanding any other provision of this Code.
2    (c-1) If the Illinois State Toll Highway Authority sells
3the Illinois State Toll Highway Authority headquarters
4building and surrounding land, located at 2700 Ogden Avenue,
5Downers Grove, Illinois as provided in subdivision (a)(2) of
6Section 7.5 of the State Property Control Act, to another
7entity whose property is not exempt and immediately thereafter
8enters into a leaseback or other agreement that directly or
9indirectly gives the State or the Illinois State Toll Highway
10Authority a right to use, control, and possess the property,
11that portion of the property leased and occupied exclusively by
12the State or the Authority shall remain exempt under this
13Section. For the property to remain exempt under this
14subsection (c), the Authority must retain an option to purchase
15the property at a future date or, within the limitations period
16for reverters, the property must revert back to the Authority.
17    If the property has been conveyed as described in this
18subsection (c), the property is no longer exempt pursuant to
19this Section as of the date when:
20        (1) the right of the State or the Authority to use,
21    control, and possess the property has been terminated; or
22        (2) the Authority no longer has an option to purchase
23    or otherwise acquire the property and there is no provision
24    for a reverter of the property to the Authority within the
25    limitations period for reverters.
26    Pursuant to Sections 15-15 and 15-20 of this Code, the

 

 

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1Authority shall notify the chief county assessment officer of
2any transaction under this subsection (c). The chief county
3assessment officer shall determine initial and continuing
4compliance with the requirements of this Section for tax
5exemption. Failure to notify the chief county assessment
6officer of a transaction under this subsection (c) or to
7otherwise comply with the requirements of Sections 15-15 and
815-20 of this Code shall, in the discretion of the chief county
9assessment officer, constitute cause to terminate the
10exemption, notwithstanding any other provision of this Code.
11    (d) The fair market rent of each parcel of real property in
12Will County owned by the State of Illinois for the purpose of
13developing an airport by the Department of Transportation shall
14include the assessed value of leasehold tax. The lessee of each
15parcel of real property in Will County owned by the State of
16Illinois for the purpose of developing an airport by the
17Department of Transportation shall not be liable for the taxes
18thereon. In order for the State to compensate taxing districts
19for the leasehold tax under this paragraph the Will County
20Supervisor of Assessments shall certify, in writing, to the
21Department of Transportation, the amount of leasehold taxes
22extended for the 2002 property tax year for each such exempt
23parcel. The Department of Transportation shall pay to the Will
24County Treasurer, from the Tax Recovery Fund, on or before July
251 of each year, the amount of leasehold taxes for each such
26exempt parcel as certified by the Will County Supervisor of

 

 

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1Assessments. The tax compensation shall terminate on December
231, 2020. It is the duty of the Department of Transportation to
3file with the Office of the Will County Supervisor of
4Assessments an affidavit stating the termination date for
5rental of each such parcel due to airport construction. The
6affidavit shall include the property identification number for
7each such parcel. In no instance shall tax compensation for
8property owned by the State be deemed delinquent or bear
9interest. In no instance shall a lien attach to the property of
10the State. In no instance shall the State be required to pay
11leasehold tax compensation in excess of the Tax Recovery Fund's
12balance.
13    (e) Public Act 81-1026 applies to all leases or agreements
14entered into or renewed on or after September 24, 1979.
15    (f) Notwithstanding anything to the contrary in this Code,
16all property owned by the State that is the Illiana Expressway,
17as defined in the Public Private Agreements for the Illiana
18Expressway Act, and that is used for transportation purposes
19and that is leased for those purposes to another entity whose
20property is not exempt shall remain exempt, and any leasehold
21interest in the property shall not be subject to taxation under
22Section 9-195 of this Act.
23    (g) Notwithstanding anything to the contrary in this
24Section, all property owned by the State or the Illinois State
25Toll Highway Authority that is defined as a transportation
26project under the Public-Private Partnerships for

 

 

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1Transportation Act and that is used for transportation purposes
2and that is leased for those purposes to another entity whose
3property is not exempt shall remain exempt, and any leasehold
4interest in the property shall not be subject to taxation under
5Section 9-195 of this Act.
6(Source: P.A. 95-331, eff. 8-21-07; 96-192, eff. 8-10-09;
796-913, eff. 6-9-10.)
 
8    Section 945. The Toll Highway Act is amended by adding
9Section 11.1 as follows:
 
10    (605 ILCS 10/11.1 new)
11    Sec. 11.1. Public-private partnerships. The Authority may
12exercise all powers granted to it under the Public-Private
13Partnerships for Transportation Act.
 
14    Section 950. The Prevailing Wage Act is amended by changing
15Section 2 as follows:
 
16    (820 ILCS 130/2)  (from Ch. 48, par. 39s-2)
17    Sec. 2. This Act applies to the wages of laborers,
18mechanics and other workers employed in any public works, as
19hereinafter defined, by any public body and to anyone under
20contracts for public works. This includes any maintenance,
21repair, assembly, or disassembly work performed on equipment
22whether owned, leased, or rented.

 

 

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1    As used in this Act, unless the context indicates
2otherwise:
3    "Public works" means all fixed works constructed or
4demolished by any public body, or paid for wholly or in part
5out of public funds. "Public works" as defined herein includes
6all projects financed in whole or in part with bonds, grants,
7loans, or other funds made available by or through the State or
8any of its political subdivisions, including but not limited
9to: bonds issued under the Industrial Project Revenue Bond Act
10(Article 11, Division 74 of the Illinois Municipal Code), the
11Industrial Building Revenue Bond Act, the Illinois Finance
12Authority Act, the Illinois Sports Facilities Authority Act, or
13the Build Illinois Bond Act; loans or other funds made
14available pursuant to the Build Illinois Act; or funds from the
15Fund for Illinois' Future under Section 6z-47 of the State
16Finance Act, funds for school construction under Section 5 of
17the General Obligation Bond Act, funds authorized under Section
183 of the School Construction Bond Act, funds for school
19infrastructure under Section 6z-45 of the State Finance Act,
20and funds for transportation purposes under Section 4 of the
21General Obligation Bond Act. "Public works" also includes (i)
22all projects financed in whole or in part with funds from the
23Department of Commerce and Economic Opportunity under the
24Illinois Renewable Fuels Development Program Act for which
25there is no project labor agreement; and (ii) all work
26performed pursuant to a public private agreement under the

 

 

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1Public Private Agreements for the Illiana Expressway Act; and
2(iii) all projects undertaken under a public-private agreement
3under the Public-Private Partnerships for Transportation Act.
4"Public works" also includes all projects at leased facility
5property used for airport purposes under Section 35 of the
6Local Government Facility Lease Act. "Public works" also
7includes the construction of a new wind power facility by a
8business designated as a High Impact Business under Section
95.5(a)(3)(E) of the Illinois Enterprise Zone Act. "Public
10works" does not include work done directly by any public
11utility company, whether or not done under public supervision
12or direction, or paid for wholly or in part out of public
13funds. "Public works" does not include projects undertaken by
14the owner at an owner-occupied single-family residence or at an
15owner-occupied unit of a multi-family residence.
16    "Construction" means all work on public works involving
17laborers, workers or mechanics. This includes any maintenance,
18repair, assembly, or disassembly work performed on equipment
19whether owned, leased, or rented.
20    "Locality" means the county where the physical work upon
21public works is performed, except (1) that if there is not
22available in the county a sufficient number of competent
23skilled laborers, workers and mechanics to construct the public
24works efficiently and properly, "locality" includes any other
25county nearest the one in which the work or construction is to
26be performed and from which such persons may be obtained in

 

 

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1sufficient numbers to perform the work and (2) that, with
2respect to contracts for highway work with the Department of
3Transportation of this State, "locality" may at the discretion
4of the Secretary of the Department of Transportation be
5construed to include two or more adjacent counties from which
6workers may be accessible for work on such construction.
7    "Public body" means the State or any officer, board or
8commission of the State or any political subdivision or
9department thereof, or any institution supported in whole or in
10part by public funds, and includes every county, city, town,
11village, township, school district, irrigation, utility,
12reclamation improvement or other district and every other
13political subdivision, district or municipality of the state
14whether such political subdivision, municipality or district
15operates under a special charter or not.
16    The terms "general prevailing rate of hourly wages",
17"general prevailing rate of wages" or "prevailing rate of
18wages" when used in this Act mean the hourly cash wages plus
19fringe benefits for training and apprenticeship programs
20approved by the U.S. Department of Labor, Bureau of
21Apprenticeship and Training, health and welfare, insurance,
22vacations and pensions paid generally, in the locality in which
23the work is being performed, to employees engaged in work of a
24similar character on public works.
25(Source: P.A. 95-341, eff. 8-21-07; 96-28, eff. 7-1-09; 96-58,
26eff. 1-1-10; 96-186, eff. 1-1-10; 96-913, eff. 6-9-10; 96-1000,

 

 

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1eff. 7-2-10.)
 
2    Section 999. Effective date. This Act takes effect upon
3becoming law.