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Full Text of SB0146  97th General Assembly

SB0146 97TH GENERAL ASSEMBLY

  
  

 


 
97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
SB0146

 

Introduced 1/27/2011, by Sen. Heather Steans

 

SYNOPSIS AS INTRODUCED:
 
New Act
20 ILCS 2705/2705-222 new
20 ILCS 3501/825-106 new
30 ILCS 500/1-10
30 ILCS 550/1.7 new
30 ILCS 570/2.7 new
30 ILCS 575/2.7 new
35 ILCS 120/1r new
35 ILCS 200/15-55
35 ILCS 200/15-195 new
605 ILCS 10/11.1 new
820 ILCS 130/2  from Ch. 48, par. 39s-2

    Creates the Public-Private Partnerships for Transportation Act. Contains a statement of public policy and legislative intent. Grants to the Illinois Department of Transportation and the Illinois State Toll Highway Authority the necessary powers for the development, financing, and operation of transportation projects through public-private agreements with one or more private entities. Contains provisions regarding procurement, agreements, development and operations standards for transportation projects, financial arrangements, acquisition of property, labor matters, law enforcement, property, powers, prohibitions, and other matters. Amends the Department of Transportation Law of the Civil Administrative Code of Illinois; Illinois Finance Authority Act; Illinois Procurement Code; Public Construction Bond Act; Employment of Illinois Workers on Public Works Act; Business Enterprise for Minorities, Females, and Persons with Disabilities Act; Retailers' Occupation Tax Act; Property Tax Code; Toll Highway Act; and Prevailing Wage Act to implement and conform to the new Act. Makes other changes. Effective immediately.


LRB097 06233 HEP 46308 b

 

 

A BILL FOR

 

SB0146LRB097 06233 HEP 46308 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, (ii) the
9Authority, or (iii), with respect to an existing airport, an
10airport authority created and established under the Airport
11Authorities Act owning and operating the airport.
12    "Transportation facility" means (i) any new or existing
13road, highway, toll highway, bridge, tunnel, intermodal
14facility, intercity or high-speed passenger rail, or other
15transportation facility or infrastructure, excluding airports,
16under the jurisdiction of the Department or the Authority, or
17(ii) any existing airport owned and operated by an airport
18authority created and established under the Airport
19Authorities Act. The term "transportation facility" may refer
20to one or more transportation facilities that are proposed to
21be developed or operated as part of a single transportation
22project.
23    "Transportation project" or "project" means any or the
24combination of the development, financing, or operation with
25respect to all or a portion of any transportation facility
26under the jurisdiction of the transportation agency,

 

 

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1undertaken pursuant to this Act.
2    "Unit of local government" has the meaning ascribed to that
3term in Article VII, Section 1 of the Constitution of the State
4of Illinois and also means any unit designated as a municipal
5corporation.
6    "User fees" or "tolls" means the rates, tolls, fees, or
7other charges imposed by the contractor for use of all or a
8portion of a transportation project under a public-private
9agreement.
 
10    Section 15. Formation of public-private agreements;
11project planning.
12    (a) Each transportation agency may exercise the powers
13granted by this Act to do some or all of develop, finance, and
14operate any part of one or more transportation projects through
15public-private agreements with one or more private entities.
16The net proceeds arising out of a transportation project or
17public-private agreement undertaken by the Department pursuant
18to this Act shall be deposited into the State Construction
19Account Fund. The net proceeds arising out of a transportation
20project or public-private agreement undertaken by the
21Authority pursuant to this Act shall be deposited into the
22Illinois State Toll Highway Authority Fund and shall be used
23only as authorized by Section 23 of the Toll Highway Act.
24    (b) The Authority shall not enter into a public-private
25agreement involving a lease or other transfer of any toll

 

 

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1highway, or portions thereof, under the Authority's
2jurisdiction which were open to vehicular traffic on the
3effective date of this Act. The Authority shall not enter into
4a public-private agreement for the purpose of making roadway
5improvements, including but not limited to reconstruction,
6adding lanes, and adding ramps, to any toll highway, or
7portions thereof, under the Authority's jurisdiction which
8were open to vehicular traffic on the effective date of this
9Act. The Authority may enter into a public-private partnership
10to develop, finance, and operate new toll highways authorized
11by the Governor and the General Assembly pursuant to Section
1214.1 of the Toll Highway Act, non-highway transportation
13projects on the toll highway system such as commuter rail or
14high-speed rail lines, and intelligent transportation
15infrastructure that will enhance the safety, efficiency, and
16environmental quality of the toll highway system.
17    (c) A contractor has:
18        (1) all powers allowed by law generally to a private
19    entity having the same form of organization as the
20    contractor; and
21        (2) the power to develop, finance, and operate the
22    transportation facility and to impose user fees in
23    connection with the use of the transportation facility,
24    subject to the terms of the public-private agreement.
25    No tolls or user fees may be imposed by the contractor
26except as set forth in a public-private agreement.

 

 

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1    (d) Each year, at least 30 days prior to the beginning of
2the transportation agency's fiscal year, and at other times the
3transportation agency deems necessary, the Department and the
4Authority shall submit for review to the General Assembly a
5description of potential projects that the transportation
6agency is considering undertaking under this Act. Any
7submission from the Authority shall indicate which of its
8potential projects, if any, will involve the proposer operating
9the transportation facility for a period of one year or more.
10Prior to the issuance of any request for qualifications or
11request for proposals with respect to any potential project
12undertaken by the Department or the Authority pursuant to
13Section 20 of this Act, the commencement of a procurement
14process for that particular potential project shall be
15authorized by joint resolution of the General Assembly.
16    (e) Each year, at least 30 days prior to the beginning of
17the transportation agency's fiscal year, the transportation
18agency shall submit a description of potential projects that
19the transportation agency is considering undertaking under
20this Act to each county, municipality, and metropolitan
21planning organization, with respect to each project located
22within its boundaries.
23    (f) Any project undertaken under this Act shall be subject
24to all applicable planning requirements otherwise required by
25law, including land use planning, regional planning,
26transportation planning, and environmental compliance

 

 

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1requirements.
2    (g) Any new transportation facility developed as a project
3under this Act must be consistent with the regional plan then
4in existence of any metropolitan planning organization in whose
5boundaries the project is located.
 
6    Section 20. Procurement process.
7    (a) A transportation agency seeking to enter into a
8public-private partnership with a private entity for the
9development, finance, and operation of a transportation
10facility as a transportation project shall determine and set
11forth the criteria for the selection process. The
12transportation agency shall use (i) a competitive sealed
13bidding process, (ii) a competitive sealed proposal process, or
14(iii) a design-build procurement process in accordance with
15Section 25 of this Act. Before using one of these processes the
16transportation agency may use a request for information to
17obtain information relating to possible public-private
18partnerships.
19    The selection of professional design firms by a
20transportation agency or private entity shall comply with the
21Architectural, Engineering, and Land Surveying Qualifications
22Based Selection Act or Section 25 of this Act.
23    Nothing in this Act shall preclude a public agency,
24including the Department or the Authority, from submitting a
25proposal to develop or operate, or to develop and operate, a

 

 

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1transportation facility as a transportation project. The
2transportation agency shall give a proposal submitted by a
3public agency equal consideration as it gives proposals
4submitted by private entities, and, for that purpose, treat the
5public agency as a private entity.
6    All procurement processes shall incorporate requirements
7and set forth goals for participation by disadvantaged business
8enterprises as allowed under State and federal law.
9    (b) The transportation agency shall establish a process for
10prequalification of all potential private entities. The
11transportation agency shall: (i) provide a public notice of the
12prequalification process for such period as deemed appropriate
13by the agency; (ii) set forth requirements and evaluation
14criteria in order to become prequalified; (iii) determine which
15private entities that have submitted prequalification
16applications, if any, meet the requirements and evaluation
17criteria; and (iv) allow only those entities that have been
18prequalified to submit proposals or bids. The transportation
19agency shall make publicly available on its website during the
20request for qualifications period information regarding firms
21that are prequalified by the transportation agency pursuant to
22Section 20 of the Architectural, Engineering, and Land
23Surveying Qualifications Based Selection Act to provide
24architectural, engineering, and land surveying services and
25shall require the use of such firms for such services.
26    (c) Competitive sealed bidding requirements:

 

 

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1        (1) All contracts shall be awarded by competitive
2    sealed bidding except as otherwise provided in subsection
3    (d) of this Section and Section 25 of this Act.
4        (2) An invitation for bids shall be issued and shall
5    include a description of the public-private partnership
6    with a private entity for the development, finance, and
7    operation of a transportation facility as a transportation
8    project, and the material contractual terms and conditions
9    applicable to the procurement.
10        (3) Public notice of the invitation for bids shall be
11    published in the State of Illinois Procurement Bulletin at
12    least 21 days before the date set in the invitation for the
13    opening of bids.
14        (4) Bids shall be opened publicly in the presence of
15    one or more witnesses at the time and place designated in
16    the invitation for bids. The name of each bidder, the
17    amount of each bid, and other relevant information as may
18    be specified by rule shall be recorded. After the award of
19    the contract, the winning bid and the record of each
20    unsuccessful bid shall be open to public inspection.
21        (5) Bids shall be unconditionally accepted without
22    alteration or correction, except as authorized in this Act.
23    Bids shall be evaluated based on the requirements set forth
24    in the invitation for bids, which may include criteria to
25    determine acceptability such as inspection, testing,
26    quality, workmanship, delivery, and suitability for a

 

 

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1    particular purpose. Those criteria that will affect the bid
2    price and be considered in evaluation for award, such as
3    discounts, transportation costs, and total or life cycle
4    costs, shall be objectively measurable. The invitation for
5    bids shall set forth the evaluation criteria to be used.
6        (6) Correction or withdrawal of inadvertently
7    erroneous bids before or after award, or cancellation of
8    awards of contracts based on bid mistakes, shall be
9    permitted in accordance with rules. After bid opening, no
10    changes in bid prices or other provisions of bids
11    prejudicial to the interest of the State or fair
12    competition shall be permitted. All decisions to permit the
13    correction or withdrawal of bids based on bid mistakes
14    shall be supported by written determination made by the
15    transportation agency.
16        (7) The contract shall be awarded with reasonable
17    promptness by written notice to the lowest responsible and
18    responsive bidder whose bid meets the requirements and
19    criteria set forth in the invitation for bids, except when
20    the transportation agency determines it is not in the best
21    interest of the State and by written explanation determines
22    another bidder shall receive the award. The explanation
23    shall appear in the appropriate volume of the State of
24    Illinois Procurement Bulletin. The written explanation
25    must include:
26            (A) a description of the agency's needs;

 

 

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

 

 

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1    of one or more witnesses at the time and place designated
2    in the request for proposals, but proposals shall be opened
3    in a manner to avoid disclosure of contents to competing
4    offerors during the process of negotiation. A record of
5    proposals shall be prepared and shall be open for public
6    inspection after contract award.
7        (5) The requests for proposals shall state the relative
8    importance of price and other evaluation factors.
9    Proposals shall be submitted in 2 parts: (i) covering items
10    except price; and (ii) covering price. The first part of
11    all proposals shall be evaluated and ranked independently
12    of the second part of all proposals.
13        (6) As provided in the request for proposals and under
14    any applicable rules, discussions may be conducted with
15    responsible offerors who submit proposals determined to be
16    reasonably susceptible of being selected for award for the
17    purpose of clarifying and assuring full understanding of
18    and responsiveness to the solicitation requirements. Those
19    offerors shall be accorded fair and equal treatment with
20    respect to any opportunity for discussion and revision of
21    proposals. Revisions may be permitted after submission and
22    before award for the purpose of obtaining best and final
23    offers. In conducting discussions there shall be no
24    disclosure of any information derived from proposals
25    submitted by competing offerors. If information is
26    disclosed to any offeror, it shall be provided to all

 

 

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1    competing offerors.
2        (7) Awards shall be made to the responsible offeror
3    whose proposal is determined in writing to be the most
4    advantageous to the State, taking into consideration price
5    and the evaluation factors set forth in the request for
6    proposals. The contract file shall contain the basis on
7    which the award is made.
8    (e) In the case of a proposal or proposals to the
9Department or the Authority, the transportation agency shall
10determine, based on its review and evaluation of the proposal
11or proposals received in response to the request for proposals,
12which one or more proposals, if any, best serve the public
13purpose of this Act and satisfy the criteria set forth in the
14request for proposals and, with respect to such proposal or
15proposals, shall:
16        (1) submit the proposal or proposals to the Commission
17    on Government Forecasting and Accountability, which,
18    within 20 days of submission by the transportation agency,
19    shall complete a review of the proposal or proposals and
20    report on the value of the proposal or proposals to the
21    State;
22        (2) hold one or more public hearings on the proposal or
23    proposals, publish notice of the hearing or hearings at
24    least 7 days before the hearing, and include the following
25    in the notice: (i) the date, time, and place of the hearing
26    and the address of the transportation agency, (ii) the

 

 

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

 

 

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1        (4) to request clarifications to any statement of
2    information, qualifications, or proposal received, to seek
3    one or more revised proposals or one or more best and final
4    offers, or to conduct negotiations with one or more private
5    entities that have submitted proposals;
6        (5) to modify, during the pendency of a procurement,
7    the terms, provisions, and conditions of a request for
8    information, request for qualifications, or request for
9    proposals or the technical specifications or form of a
10    public-private agreement;
11        (6) to interview proposers; and
12        (7) any other rights available to the transportation
13    agency under applicable law and regulations.
14    (g) If a proposal is approved, the transportation agency
15shall execute the public-private agreement, publish notice of
16the execution of the public-private agreement on its website
17and in a newspaper or newspapers of general circulation within
18the county or counties in which the transportation project is
19to be located, and publish the entire agreement on its website.
20Any action to contest the validity of a public-private
21agreement entered into under this Act must be brought no later
22than 60 days after the date of publication of the notice of
23execution of the public-private agreement.
24    (h) For any transportation project with an estimated
25construction cost of over $50,000,000, the transportation
26agency may also require the approved proposer to pay the costs

 

 

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1for an independent audit of any and all traffic and cost
2estimates associated with the approved proposal, as well as a
3review of all public costs and potential liabilities to which
4taxpayers could be exposed (including improvements to other
5transportation facilities that may be needed as a result of the
6approved proposal, failure by the approved proposer to
7reimburse the transportation agency for services provided, and
8potential risk and liability in the event the approved proposer
9defaults on the public-private agreement or on bonds issued for
10the project). If required by the transportation agency, this
11independent audit must be conducted by an independent
12consultant selected by the transportation agency, and all
13information from the review must be fully disclosed.
14    (i) The transportation agency may also apply for, execute,
15or endorse applications submitted by private entities to obtain
16federal credit assistance for qualifying projects developed or
17operated pursuant to this Act.
 
18    Section 25. Design-build procurement.
19    (a) This Section 25 shall apply only to transportation
20projects for which the Department or the Authority intends to
21execute a design-build agreement, in which case the Department
22or the Authority shall abide by the requirements and procedures
23of this Section 25 in addition to other applicable requirements
24and procedures set forth in this Act.
25    (b)(1) The transportation agency must issue a notice of

 

 

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1intent to receive proposals for the project at least 14 days
2before issuing the request for the qualifications. The
3transportation agency must publish the advance notice in a
4daily newspaper of general circulation in the county where the
5transportation agency is located. The transportation agency is
6encouraged to use publication of the notice in related
7construction industry service publications. A brief
8description of the proposed procurement must be included in the
9notice. The transportation agency must provide a copy of the
10request for qualifications to any party requesting a copy.
11    (2) The request for qualifications shall be prepared for
12each project and must contain, without limitation, the
13following information: (i) the name of the transportation
14agency; (ii) a preliminary schedule for the completion of the
15contract; (iii) the proposed budget for the project, the source
16of funds, and the currently available funds at the time the
17request for proposal is submitted; (iv) prequalification
18criteria for design-build entities wishing to submit proposals
19(the transportation agency shall include, at a minimum, its
20normal prequalification, licensing, registration, and other
21requirements, but nothing contained herein precludes the use of
22additional prequalification criteria by the transportation
23agency); (v) material requirements of the contract, including
24but not limited to, the proposed terms and conditions, required
25performance and payment bonds, insurance, and the entity's plan
26to comply with the utilization goals established by the

 

 

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1corporate authorities of the transportation agency for
2minority and women business enterprises and to comply with
3Section 2-105 of the Illinois Human Rights Act; (vi) the
4performance criteria; (vii) the evaluation criteria for each
5phase of the solicitation; and (viii) the number of entities
6that will be considered for the request for proposals phase.
7    (3) The transportation agency may include any other
8relevant information in the request for qualifications that it
9chooses to supply. The private entity shall be entitled to rely
10upon the accuracy of this documentation in the development of
11its statement of qualifications and its proposal.
12    (4) The date that statements of qualifications are due must
13be at least 21 calendar days after the date of the issuance of
14the request for qualifications. In the event the cost of the
15project is estimated to exceed $12,000,000, then the statement
16of qualifications due date must be at least 28 calendar days
17after the date of the issuance of the request for
18qualifications. The transportation agency shall include in the
19request for proposals a minimum of 30 days to develop the
20proposals after the selection of entities from the evaluation
21of the statements of qualifications is completed.
22    (c)(1) The transportation agency shall develop, with the
23assistance of a licensed design professional, the request for
24qualifications and the request for proposals, which shall
25include scope and performance criteria. The scope and
26performance criteria must be in sufficient detail and contain

 

 

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

 

 

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1    (2) The transportation agency shall include in the request
2for qualifications the evaluating factors to be used in the
3request for qualifications phase. These factors are in addition
4to any prequalification requirements of private entities that
5the transportation agency has set forth. Each request for
6qualifications shall establish the relative importance
7assigned to each evaluation factor and subfactor, including any
8weighting of criteria to be employed by the transportation
9agency. The transportation agency must maintain a record of the
10evaluation scoring to be disclosed in event of a protest
11regarding the solicitation.
12    The transportation agency shall include the following
13criteria in every request for qualifications phase evaluation
14of private entities: (i) experience of personnel; (ii)
15successful experience with similar project types; (iii)
16financial capability; (iv) timeliness of past performance; (v)
17experience with similarly sized projects; (vi) successful
18reference checks of the firm; (vii) commitment to assign
19personnel for the duration of the project and qualifications of
20the entity's consultants; and (viii) ability or past
21performance in meeting or exhausting good faith efforts to meet
22the utilization goals for business enterprises established in
23the Business Enterprise for Minorities, Females, and Persons
24with Disabilities Act and in complying with Section 2-105 of
25the Illinois Human Rights Act. No proposal shall be considered
26that does not include an entity's plan to comply with the

 

 

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1requirements established in the minority and women business
2enterprises and economically disadvantaged firms established
3by the corporate authorities of the transportation agency and
4with Section 2-105 of the Illinois Human Rights Act. The
5transportation agency may include any additional relevant
6criteria in the request for qualifications phase that it deems
7necessary for a proper qualification review.
8    Upon completion of the qualifications evaluation, the
9transportation agency shall create a shortlist of the most
10highly qualified private entities.
11    The transportation agency shall notify the entities
12selected for the shortlist in writing. This notification shall
13commence the period for the preparation of the request for
14proposals phase technical and cost evaluations. The
15transportation agency must allow sufficient time for the
16shortlist entities to prepare their proposals considering the
17scope and detail requested by the transportation agency.
18    (3) The transportation agency shall include in the request
19for proposals the evaluating factors to be used in the
20technical and cost submission components. Each request for
21proposals shall establish, for both the technical and cost
22submission components, the relative importance assigned to
23each evaluation factor and subfactor, including any weighting
24of criteria to be employed by the transportation agency. The
25transportation agency must maintain a record of the evaluation
26scoring to be disclosed in event of a protest regarding the

 

 

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1solicitation.
2    The transportation agency shall include the following
3criteria in every request for proposals phase technical
4evaluation of private entities: (i) compliance with objectives
5of the project; (ii) compliance of proposed services to the
6request for proposal requirements; (iii) quality of products or
7materials proposed; (iv) quality of design parameters; (v)
8design concepts; (vi) innovation in meeting the scope and
9performance criteria; and (vii) constructability of the
10proposed project. The transportation agency may include any
11additional relevant technical evaluation factors it deems
12necessary for proper selection.
13    The transportation agency shall include the following
14criteria in every request for proposals phase cost evaluation:
15the total project cost and the time of completion. The
16transportation agency may include any additional relevant
17technical evaluation factors it deems necessary for proper
18selection. The guaranteed maximum project cost criteria
19weighing factor shall not exceed 30%.
20    The transportation agency shall directly employ or retain a
21licensed design professional to evaluate the technical and cost
22submissions to determine if the technical submissions are in
23accordance with generally accepted industry standards.
24    (e) Statements of qualifications and proposals must be
25properly identified and sealed. Statements of qualifications
26and proposals may not be reviewed until after the deadline for

 

 

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1submission has passed as set forth in the request for
2qualifications or the request for proposals. All private
3entities submitting statements of qualifications or proposals
4shall be disclosed after the deadline for submission, and all
5private entities who are selected for request for proposals
6phase evaluation shall also be disclosed at the time of that
7determination.
8    Phase II design-build proposals shall include a bid bond in
9the form and security as designated in the request for
10proposals. Proposals shall also contain a separate sealed
11envelope with the cost information within the overall proposal
12submission. Proposals shall include a list of all design
13professionals and other entities to which any work identified
14in Section 30-30 of the Illinois Procurement Code as a
15subdivision of construction work may be subcontracted during
16the performance of the contract.
17    Statements of qualifications and proposals must meet all
18material requirements of the request for qualifications or
19request for proposals, or else they may be rejected as
20non-responsive. The transportation agency shall have the right
21to reject any and all statements of qualifications and
22proposals.
23    The drawings and specifications of any unsuccessful
24statement of qualifications or proposal shall remain the
25property of the private entity.
26    The transportation agency shall review the statements of

 

 

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1qualifications and the proposals for compliance with the
2performance criteria and evaluation factors.
3    Statements of qualifications and proposals may be
4withdrawn prior to the due date and time for submissions for
5any cause. After evaluation begins by the transportation
6agency, clear and convincing evidence of error is required for
7withdrawal.
 
8    Section 30. Interim agreements.
9    (a) Prior to or in connection with the negotiation of the
10public-private agreement, the transportation agency may enter
11into an interim agreement with the approved proposer. Such
12interim agreement may:
13        (1) permit the approved proposer to commence
14    activities relating to a proposed project as the
15    transportation agency and the approved proposer shall
16    agree to and for which the approved proposer may be
17    compensated, including, but not limited to, project
18    planning, advance right-of-way acquisition, design and
19    engineering, environmental analysis and mitigation,
20    survey, conducting transportation and revenue studies, and
21    ascertaining the availability of financing for the
22    proposed facility or facilities;
23        (2) establish the process and timing of the exclusive
24    negotiation of a public-private agreement with an approved
25    proposer;

 

 

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1        (3) require that in the event the transportation agency
2    determines not to proceed with a project after the approved
3    proposer and the transportation agency have executed an
4    interim agreement, and thereby terminates the interim
5    agreement or declines to proceed with negotiation of a
6    public-private agreement with an approved proposer, the
7    transportation agency shall pay to the approved proposer
8    certain fees and costs incurred by the approved proposer;
9        (4) establish the ownership in the State or in the
10    Authority of the concepts and designs in the event of
11    termination of the interim agreement;
12        (5) establish procedures for the selection of
13    professional design firms and subcontractors, which shall
14    include procedures consistent with the Architectural,
15    Engineering, and Land Surveying Qualifications Based
16    Selection Act for the selection of design professional
17    firms and may include, in the discretion of the
18    transportation agency, procedures consistent with the low
19    bid procurement procedures outlined in the Illinois
20    Procurement Code for the selection of construction
21    companies; and
22        (6) contain any other provisions related to any aspect
23    of the transportation project that the parties may deem
24    appropriate.
25    (b) A transportation agency may enter into an interim
26agreement with multiple approved proposers if the

 

 

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1transportation agency determines in writing that it is in the
2public interest to do so.
3    (c) The approved proposer shall select firms that are
4prequalified by the transportation agency pursuant to Section
520 of the Architectural, Engineering, and Land Surveying
6Qualifications Based Selection Act to provide architectural,
7engineering, and land surveying services to undertake
8activities related to the transportation project.
 
9    Section 35. Public-private agreements.
10    (a) Unless undertaking actions otherwise permitted in an
11interim agreement entered into under Section 30 of this Act,
12before developing, financing, or operating the transportation
13project, the approved proposer shall enter into a
14public-private agreement with the transportation agency.
15Subject to the requirements of this Act, a public-private
16agreement may provide that the approved proposer, acting on
17behalf of the transportation agency, is partially or entirely
18responsible for any combination of developing, financing, or
19operating the transportation project under terms set forth in
20the public-private agreement.
21    (b) The public-private agreement may, as determined
22appropriate by the transportation agency for the particular
23transportation project, provide for some or all of the
24following:
25        (1) Construction, financing, and operation of the

 

 

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1    transportation project under terms set forth in the
2    public-private agreement, in any form as deemed
3    appropriate by the transportation agency, including, but
4    not limited to, a long-term concession and lease, a
5    design-bid-build agreement, a design-build agreement, a
6    design-build-maintain agreement, a
7    design-build-operate-maintain agreement and a
8    design-build-finance-operate-maintain agreement.
9        (2) Delivery of performance and payment bonds or other
10    performance security determined suitable by the
11    transportation agency, including letters of credit, United
12    States bonds and notes, parent guaranties, and cash
13    collateral, in connection with the development, financing,
14    or operation of the transportation project, in the forms
15    and amounts set forth in the public-private agreement or
16    otherwise determined as satisfactory by the transportation
17    agency to protect the transportation agency and payment
18    bond beneficiaries who have a direct contractual
19    relationship with the contractor or a subcontractor of the
20    contractor to supply labor or material. The payment or
21    performance bond or alternative form of performance
22    security is not required for the portion of a
23    public-private agreement that includes only design,
24    planning, or financing services, the performance of
25    preliminary studies, or the acquisition of real property.
26        (3) Review of plans for any development or operation,

 

 

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1    or both, of the transportation project by the
2    transportation agency.
3        (4) Inspection of any construction of or improvements
4    to the transportation project by the transportation agency
5    or another entity designated by the transportation agency
6    or under the public-private agreement to ensure that the
7    construction or improvements conform to the standards set
8    forth in the public-private agreement or are otherwise
9    acceptable to the transportation agency.
10        (5) Maintenance of:
11            (A) one or more policies of public liability
12        insurance (copies of which shall be filed with the
13        transportation agency accompanied by proofs of
14        coverage); or
15            (B) self-insurance;
16    each in form and amount as set forth in the public-private
17    agreement or otherwise satisfactory to the transportation
18    agency as reasonably sufficient to insure coverage of tort
19    liability to the public and employees and to enable the
20    continued operation of the transportation project.
21        (6) Where operations are included within the
22    contractor's obligations under the public-private
23    agreement, monitoring of the maintenance practices of the
24    contractor by the transportation agency or another entity
25    designated by the transportation agency or under the
26    public-private agreement and the taking of the actions the

 

 

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1    transportation agency finds appropriate to ensure that the
2    transportation project is properly maintained.
3        (7) Reimbursement to be paid to the transportation
4    agency as set forth in the public-private agreement for
5    services provided by the transportation agency.
6        (8) Filing of appropriate financial statements and
7    reports as set forth in the public-private agreement or as
8    otherwise in a form acceptable to the transportation agency
9    on a periodic basis.
10        (9) Compensation or payments to the contractor.
11    Compensation or payments may include any or a combination
12    of the following:
13            (A) a base fee and additional fee for project
14        savings as the design-builder of a construction
15        project;
16            (B) a development fee, payable on a lump-sum basis,
17        progress payment basis, time and materials basis, or
18        another basis deemed appropriate by the transportation
19        agency;
20            (C) an operations fee, payable on a lump-sum basis,
21        time and material basis, periodic basis, or another
22        basis deemed appropriate by the transportation agency;
23            (D) some or all of the revenues, if any, arising
24        out of operation of the transportation project;
25            (E) a maximum rate of return on investment or
26        return on equity or a combination of the two;

 

 

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

 

 

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1            (E) other compensation set forth in the
2        public-private agreement or otherwise deemed
3        appropriate by the transportation agency.
4        (11) The date and terms of termination of the
5    contractor's authority and duties under the public-private
6    agreement and the circumstances under which the
7    contractor's authority and duties may be terminated prior
8    to that date.
9        (12) Reversion of the transportation project to the
10    transportation agency at the termination or expiration of
11    the public-private agreement.
12        (13) Rights and remedies of the transportation agency
13    in the event that the contractor defaults or otherwise
14    fails to comply with the terms of the public-private
15    agreement.
16        (14) Procedures for the selection of professional
17    design firms and subcontractors, which shall include
18    procedures consistent with the Architectural, Engineering,
19    and Land Surveying Qualifications Based Selection Act for
20    the selection of professional design firms and may include,
21    in the discretion of the transportation agency, procedures
22    consistent with the low bid procurement procedures
23    outlined in the Illinois Procurement Code for the selection
24    of construction companies.
25        (15) Other terms, conditions, and provisions that the
26    transportation agency believes are in the public interest.

 

 

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1    (c) The transportation agency may fix and revise the
2amounts of user fees that a contractor may charge and collect
3for the use of any part of a transportation project in
4accordance with the public-private agreement. In fixing the
5amounts, the transportation agency may establish maximum
6amounts for the user fees and may provide that the maximums and
7any increases or decreases of those maximums shall be based
8upon the indices, methodologies, or other factors the
9transportation agency considers appropriate.
10    (d) A public-private agreement may:
11        (1) authorize the imposition of tolls in any manner
12    determined appropriate by the transportation agency for
13    the transportation project;
14        (2) authorize the contractor to adjust the user fees
15    for the use of the transportation project, so long as the
16    amounts charged and collected by the contractor do not
17    exceed the maximum amounts established by the
18    transportation agency under this Act;
19        (3) provide that any adjustment by the contractor
20    permitted under paragraph (2) of this subsection (d) may be
21    based on the indices, methodologies, or other factors
22    described in the public-private agreement or approved by
23    the transportation agency;
24        (4) authorize the contractor to charge and collect user
25    fees through methods, including, but not limited to,
26    automatic vehicle identification systems, electronic toll

 

 

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1    collection systems, and, to the extent permitted by law,
2    global positioning system-based, photo-based, or
3    video-based toll collection enforcement, provided that to
4    the maximum extent feasible the contractor will (i) utilize
5    open road tolling methods that allow payment of tolls at
6    highway speeds and (ii) comply with United States
7    Department of Transportation requirements and best
8    practices with respect to tolling methods; and
9        (5) authorize the collection of user fees by a third
10    party.
11    (e) In the public-private agreement, the transportation
12agency may agree to make grants or loans for the development or
13operation, or both, of the transportation project from time to
14time from amounts received from the federal government or any
15agency or instrumentality of the federal government or from any
16State or local agency.
17    (f) Upon the termination or expiration of the
18public-private agreement, including a termination for default,
19the transportation agency shall have the right to take over the
20transportation project and to succeed to all of the right,
21title, and interest in the transportation project, subject to
22any liens on revenues previously granted by the contractor to
23any person providing financing for the transportation project.
24Upon termination or expiration of the public-private agreement
25relating to a transportation project undertaken by the
26Department, all real property acquired as a part of the

 

 

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

 

 

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1        (4) pay current operation costs of the project or
2    facilities;
3        (5) pay the contractor for any compensation or payment
4    owing upon termination; and
5        (6) pay for the development, financing, or operation of
6    any other project or projects the transportation agency
7    deems appropriate.
8    (i) The full faith and credit of the State or any political
9subdivision of the State or the transportation agency is not
10pledged to secure any financing of the contractor by the
11election to take over the transportation project. Assumption of
12development or operation, or both, of the transportation
13project does not obligate the State or any political
14subdivision of the State or the transportation agency to pay
15any obligation of the contractor.
16    (j) The transportation agency may enter into a
17public-private agreement with multiple approved proposers if
18the transportation agency determines in writing that it is in
19the public interest to do so.
20    (k) A public-private agreement shall not include any
21provision under which the transportation agency agrees to
22restrict or to provide compensation to the private entity for
23the construction or operation of a competing transportation
24facility during the term of the public-private agreement.
25    (l) With respect to a public-private agreement entered into
26by the Department, the Department shall certify in its State

 

 

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1budget request to the Governor each year the amount required by
2the Department during the next State fiscal year to enable the
3Department to make any payment obligated to be made by the
4Department pursuant to that public-private agreement, and the
5Governor shall include that amount in the State budget
6submitted to the General Assembly.
 
7    Section 40. Development and operations standards for
8transportation projects.
9    (a) The plans and specifications, if any, for each project
10developed under this Act must comply with:
11        (1) the transportation agency's standards for other
12    projects of a similar nature or as otherwise provided in
13    the public-private agreement;
14        (2) the Professional Engineering Practice Act of 1989,
15    the Structural Engineering Practice Act of 1989, the
16    Illinois Architecture Practice Act of 1989, the
17    requirements of Section 30-22 of the Illinois Procurement
18    Code as they apply to responsible bidders, and the Illinois
19    Professional Land Surveyor Act of 1989; and
20        (3) any other applicable State or federal standards.
21    (b) Each highway project constructed or operated under this
22Act is considered to be part of:
23        (1) the State highway system for purposes of
24    identification, maintenance standards, and enforcement of
25    traffic laws if the highway project is under the

 

 

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1    jurisdiction of the Department; or
2        (2) the toll highway system for purposes of
3    identification, maintenance standards, and enforcement of
4    traffic laws if the highway project is under the
5    jurisdiction of the Authority.
6    (c) Any unit of local government or State agency may enter
7into agreements with the contractor for maintenance or other
8services under this Act.
9    (d) Any electronic toll collection system used on a toll
10highway, bridge, or tunnel as part of a transportation project
11must be compatible with the electronic toll collection system
12used by the Authority. The Authority is authorized to
13construct, operate, and maintain any electronic toll
14collection system used on a toll highway, bridge, or tunnel as
15part of a transportation project pursuant to an agreement with
16the transportation agency or the contractor responsible for the
17transportation project.
 
18    Section 45. Financial arrangements.
19    (a) The transportation agency may do any combination of
20applying for, executing, or endorsing applications submitted
21by private entities to obtain federal, State, or local credit
22assistance for transportation projects developed, financed, or
23operated under this Act, including loans, lines of credit, and
24guarantees.
25    (b) The transportation agency may take any action to obtain

 

 

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1federal, State, or local assistance for a transportation
2project that serves the public purpose of this Act and may
3enter into any contracts required to receive the federal
4assistance. The transportation agency may determine that it
5serves the public purpose of this Act for all or any portion of
6the costs of a transportation project to be paid, directly or
7indirectly, from the proceeds of a grant or loan, line of
8credit, or loan guarantee made by a local, State, or federal
9government or any agency or instrumentality of a local, State,
10or federal government. Such assistance may include, but not be
11limited to, federal credit assistance pursuant to the
12Transportation Infrastructure Finance and Innovation Act
13(TIFIA).
14    (c) The transportation agency may agree to make grants or
15loans for the development, financing, or operation of a
16transportation project from time to time, from amounts received
17from the federal, State, or local government or any agency or
18instrumentality of the federal, State, or local government.
19    (d) Any financing of a transportation project may be in the
20amounts and upon the terms and conditions that are determined
21by the parties to the public-private agreement.
22    (e) For the purpose of financing a transportation project,
23the contractor and the transportation agency may do the
24following:
25        (1) propose to use any and all revenues that may be
26    available to them;

 

 

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1        (2) enter into grant agreements;
2        (3) access any other funds available to the
3    transportation agency; and
4        (4) accept grants from the transportation agency or
5    other public or private agency or entity.
6    (f) For the purpose of financing a transportation project,
7public funds may be used and mixed and aggregated with funds
8provided by or on behalf of the contractor or other private
9entities.
10    (g) For the purpose of financing a transportation project,
11each transportation agency is authorized to do any combination
12of applying for, executing, or endorsing applications for an
13allocation of tax-exempt bond financing authorization provided
14by Section 142(m) of the United States Internal Revenue Code,
15as well as financing available under any other federal law or
16program.
17    (h) Any bonds, debt, or other securities or other financing
18issued for the purposes of this Act shall not be deemed to
19constitute a debt of the State or any political subdivision of
20the State or a pledge of the faith and credit of the State or
21any political subdivision of the State.
 
22    Section 50. Acquisition of property.
23    (a) The transportation agency may exercise any power of
24condemnation or eminent domain, including quick-take powers,
25that it has under law, including, in the case of the

 

 

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1Department, all powers for acquisition of property rights
2granted it in the Illinois Highway Code, for the purpose of
3acquiring any lands or estates or interests in land for a
4transportation project to the extent provided in the
5public-private agreement or otherwise to the extent that the
6transportation agency finds that the action serves the public
7purpose of this Act and deems it appropriate in the exercise of
8its powers under this Act.
9    (b) The transportation agency and a contractor may enter
10into the leases, licenses, easements, and other grants of
11property interests that the transportation agency determines
12necessary to carry out this Act.
 
13    Section 55. Labor.
14    (a) A public-private agreement related to a transportation
15project pertaining to the building, altering, repairing,
16maintaining, improving, or demolishing a transportation
17facility shall require the contractor and all subcontractors to
18comply with the requirements of Section 30-22 of the Illinois
19Procurement Code as they apply to responsible bidders and to
20present satisfactory evidence of that compliance to the
21transportation agency, unless the transportation project is
22federally funded and the application of those requirements
23would jeopardize the receipt or use of federal funds in support
24of the transportation project.
25    (b) A public-private agreement related to a transportation

 

 

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1project pertaining to a new transportation facility shall
2require the contractor to enter into a project labor agreement
3utilized by the Department.
 
4    Section 60. Law enforcement.
5    (a) All law enforcement officers of the State and of each
6affected local jurisdiction have the same powers and
7jurisdiction within the limits of the transportation facility
8as they have in their respective areas of jurisdiction.
9    (b) Law enforcement officers shall have access to the
10transportation facility at any time for the purpose of
11exercising the law enforcement officers' powers and
12jurisdiction.
13    (c) The traffic and motor vehicle laws of the State of
14Illinois or, if applicable, any local jurisdiction shall be the
15same as those applying to conduct on similar projects in the
16State of Illinois or the local jurisdiction.
17    (d) Punishment for infractions and offenses shall be as
18prescribed by law for conduct occurring on similar projects in
19the State of Illinois or the local jurisdiction.
 
20    Section 65. Term of agreement; reversion of property to
21transportation agency.
22    (a) The term of a public-private agreement, including all
23extensions, may not exceed 99 years.
24    (b) The transportation agency shall terminate the

 

 

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1contractor's authority and duties under the public-private
2agreement on the date set forth in the public-private
3agreement.
4    (c) Upon termination of the public-private agreement, the
5authority and duties of the contractor under this Act cease,
6except for those duties and obligations that extend beyond the
7termination, as set forth in the public-private agreement, and
8all interests in the transportation facility shall revert to
9the transportation agency.
 
10    Section 70. Additional powers of transportation agencies
11with respect to transportation projects.
12    (a) Each transportation agency may exercise any powers
13provided under this Act in participation or cooperation with
14any governmental entity and enter into any contracts to
15facilitate that participation or cooperation without
16compliance with any other statute. Each transportation agency
17shall cooperate with each other and with other governmental
18entities in carrying out transportation projects under this
19Act.
20    (b) Each transportation agency may make and enter into all
21contracts and agreements necessary or incidental to the
22performance of the transportation agency's duties and the
23execution of the transportation agency's powers under this Act.
24Except as otherwise required by law, these contracts or
25agreements are not subject to any approvals other than the

 

 

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1approval of the transportation agency and may be for any term
2of years and contain any terms that are considered reasonable
3by the transportation agency.
4    (c) Each transportation agency may pay the costs incurred
5under a public-private agreement entered into under this Act
6from any funds available to the transportation agency under
7this Act or any other statute.
8    (d) A transportation agency or other State agency may not
9take any action that would impair a public-private agreement
10entered into under this Act.
11    (e) Each transportation agency may enter into an agreement
12between and among the contractor, the transportation agency,
13and the Department of State Police concerning the provision of
14law enforcement assistance with respect to a transportation
15project that is the subject of a public-private agreement under
16this Act.
17    (f) Each transportation agency is authorized to enter into
18arrangements with the Department of State Police related to
19costs incurred in providing law enforcement assistance under
20this Act.
 
21    Section 75. Prohibited local action. A unit of local
22government may not take any action that would have the effect
23of impairing a public-private agreement under this Act,
24provided that this Section 75 shall not diminish any existing
25police power or other power provided by law to a unit of local

 

 

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1government.
 
2    Section 80. Powers liberally construed. The powers
3conferred by this Act shall be liberally construed in order to
4accomplish their purposes and shall be in addition and
5supplemental to the powers conferred by any other law. If any
6other law or rule is inconsistent with this Act, this Act is
7controlling as to any public-private agreement entered into
8under this Act.
 
9    Section 85. Full and complete authority. This Act contains
10full and complete authority for agreements and leases with
11private entities to carry out the activities described in this
12Act. Except as otherwise required by law, no procedure,
13proceedings, publications, notices, consents, approvals,
14orders, or acts by the transportation agency or any other State
15or local agency or official are required to enter into an
16agreement or lease.
 
17    Section 905. The Department of Transportation Law of the
18Civil Administrative Code of Illinois is amended by adding
19Section 2705-222 as follows:
 
20    (20 ILCS 2705/2705-222 new)
21    Sec. 2705-222. Public-private partnerships for
22transportation. The Department may exercise all powers granted

 

 

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1to it under the Public-Private Partnerships for Transportation
2Act.
 
3    Section 910. The Illinois Finance Authority Act is amended
4by adding Section 825-106 as follows:
 
5    (20 ILCS 3501/825-106 new)
6    Sec. 825-106. Transportation project financing. For the
7purpose of financing a transportation project undertaken under
8the Public-Private Partnerships for Transportation Act, the
9Authority is authorized to apply for an allocation of
10tax-exempt bond financing authorization provided by Section
11142(m) of the United States Internal Revenue Code, as well as
12financing available under any other federal law or program.
 
13    Section 915. The Illinois Procurement Code is amended by
14changing Section 1-10 as follows:
 
15    (30 ILCS 500/1-10)
16    Sec. 1-10. Application.
17    (a) This Code applies only to procurements for which
18contractors were first solicited on or after July 1, 1998. This
19Code shall not be construed to affect or impair any contract,
20or any provision of a contract, entered into based on a
21solicitation prior to the implementation date of this Code as
22described in Article 99, including but not limited to any

 

 

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1covenant entered into with respect to any revenue bonds or
2similar instruments. All procurements for which contracts are
3solicited between the effective date of Articles 50 and 99 and
4July 1, 1998 shall be substantially in accordance with this
5Code and its intent.
6    (b) This Code shall apply regardless of the source of the
7funds with which the contracts are paid, including federal
8assistance moneys. This Code shall not apply to:
9        (1) Contracts between the State and its political
10    subdivisions or other governments, or between State
11    governmental bodies except as specifically provided in
12    this Code.
13        (2) Grants, except for the filing requirements of
14    Section 20-80.
15        (3) Purchase of care.
16        (4) Hiring of an individual as employee and not as an
17    independent contractor, whether pursuant to an employment
18    code or policy or by contract directly with that
19    individual.
20        (5) Collective bargaining contracts.
21        (6) Purchase of real estate, except that notice of this
22    type of contract with a value of more than $25,000 must be
23    published in the Procurement Bulletin within 7 days after
24    the deed is recorded in the county of jurisdiction. The
25    notice shall identify the real estate purchased, the names
26    of all parties to the contract, the value of the contract,

 

 

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1    and the effective date of the contract.
2        (7) Contracts necessary to prepare for anticipated
3    litigation, enforcement actions, or investigations,
4    provided that the chief legal counsel to the Governor shall
5    give his or her prior approval when the procuring agency is
6    one subject to the jurisdiction of the Governor, and
7    provided that the chief legal counsel of any other
8    procuring entity subject to this Code shall give his or her
9    prior approval when the procuring entity is not one subject
10    to the jurisdiction of the Governor.
11        (8) Contracts for services to Northern Illinois
12    University by a person, acting as an independent
13    contractor, who is qualified by education, experience, and
14    technical ability and is selected by negotiation for the
15    purpose of providing non-credit educational service
16    activities or products by means of specialized programs
17    offered by the university.
18        (9) Procurement expenditures by the Illinois
19    Conservation Foundation when only private funds are used.
20        (10) Procurement expenditures by the Illinois Health
21    Information Exchange Authority involving private funds
22    from the Health Information Exchange Fund. "Private funds"
23    means gifts, donations, and private grants.
24        (11) Public-private agreements entered into according
25    to the procurement requirements of Section 20 of the
26    Public-Private Partnerships for Transportation Act and

 

 

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1    design-build agreements entered into according to the
2    procurement requirements of Section 25 of the
3    Public-Private Partnerships for Transportation Act.
4    (c) This Code does not apply to the electric power
5procurement process provided for under Section 1-75 of the
6Illinois Power Agency Act and Section 16-111.5 of the Public
7Utilities Act.
8    (d) Except for Section 20-160 and Article 50 of this Code,
9and as expressly required by Section 9.1 of the Illinois
10Lottery Law, the provisions of this Code do not apply to the
11procurement process provided for under Section 9.1 of the
12Illinois Lottery Law.
13(Source: P.A. 95-481, eff. 8-28-07; 95-615, eff. 9-11-07;
1495-876, eff. 8-21-08; 96-840, eff. 12-23-09; 96-1331, eff.
157-27-10.)
 
16    Section 920. The Public Construction Bond Act is amended by
17adding Section 1.7 as follows:
 
18    (30 ILCS 550/1.7 new)
19    Sec. 1.7. Public-private agreements. This Act applies to
20any public-private agreement entered into under the
21Public-Private Partnerships for Transportation Act.
 
22    Section 925. The Employment of Illinois Workers on Public
23Works Act is amended by adding Section 2.7 as follows:
 

 

 

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1    (30 ILCS 570/2.7 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 930. The Business Enterprise for Minorities,
6Females, and Persons with Disabilities Act is amended by adding
7Section 2.7 as follows:
 
8    (30 ILCS 575/2.7 new)
9    Sec. 2.7. Public-private agreements. This Act applies to
10any public-private agreement entered into under the
11Public-Private Partnerships for Transportation Act.
 
12    Section 935. The Retailers' Occupation Tax Act is amended
13by adding Section 1r as follows:
 
14    (35 ILCS 120/1r new)
15    Sec. 1r. Building materials exemption; public-private
16partnership transportation projects.
17    (a) Each retailer that makes a qualified sale of building
18materials to be incorporated into a "project" as defined in the
19Public-Private Partnerships for Transportation Act, by
20remodeling, rehabilitating, or new construction, may deduct
21receipts from those sales when calculating the tax imposed by

 

 

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1this Act.
2    (b) As used in this Section, "qualified sale" means a sale
3of building materials that will be incorporated into a project
4for which a Certificate of Eligibility for Sales Tax Exemption
5has been issued by the agency having authority over the
6project.
7    (c) To document the exemption allowed under this Section,
8the retailer must obtain from the purchaser a copy of the
9Certificate of Eligibility for Sales Tax Exemption issued by
10the agency having jurisdiction over the project into which the
11building materials will be incorporated is located. The
12Certificate of Eligibility for Sales Tax Exemption must contain
13all of the following:
14        (1) statement that the project identified in the
15    Certificate meets all the requirements of the agency having
16    authority over the project;
17        (2) the location or address of the project; and
18        (3) the signature of the director of the agency with
19    authority over the project or the director's delegate.
20    (d) In addition to meeting the requirements of subsection
21(c) of this Act, the retailer must obtain a certificate from
22the purchaser that contains all of the following:
23        (1) a statement that the building materials are being
24    purchased for incorporation into a project in accordance
25    with the Public-Private Partnerships for Transportation
26    Act;

 

 

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1        (2) the location or address of the project into which
2    the building materials will be incorporated;
3        (3) the name of the project;
4        (4) a description of the building materials being
5    purchased; and
6        (5) the purchaser's signature and date of purchase.
7    (e) This Section is exempt from Section 2-70 of this Act.
 
8    Section 940. The Property Tax Code is amended by changing
9Section 15-55 and by adding Section 15-195 as follows:
 
10    (35 ILCS 200/15-55)
11    Sec. 15-55. State property.
12    (a) All property belonging to the State of Illinois is
13exempt. However, the State agency holding title shall file the
14certificate of ownership and use required by Section 15-10,
15together with a copy of any written lease or agreement, in
16effect on March 30 of the assessment year, concerning parcels
17of 1 acre or more, or an explanation of the terms of any oral
18agreement under which the property is leased, subleased or
19rented.
20    The leased property shall be assessed to the lessee and the
21taxes thereon extended and billed to the lessee, and collected
22in the same manner as for property which is not exempt. The
23lessee shall be liable for the taxes and no lien shall attach
24to the property of the State.

 

 

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1    For the purposes of this Section, the word "leases"
2includes licenses, franchises, operating agreements and other
3arrangements under which private individuals, associations or
4corporations are granted the right to use property of the
5Illinois State Toll Highway Authority and includes all property
6of the Authority used by others without regard to the size of
7the leased parcel.
8    (b) However, all property of every kind belonging to the
9State of Illinois, which is or may hereafter be leased to the
10Illinois Prairie Path Corporation, shall be exempt from all
11assessments, taxation or collection, despite the making of any
12such lease, if it is used for:
13        (1) conservation, nature trail or any other
14    charitable, scientific, educational or recreational
15    purposes with public benefit, including the preserving and
16    aiding in the preservation of natural areas, objects,
17    flora, fauna or biotic communities;
18        (2) the establishment of footpaths, trails and other
19    protected areas;
20        (3) the conservation of the proper use of natural
21    resources or the promotion of the study of plant and animal
22    communities and of other phases of ecology, natural history
23    and conservation;
24        (4) the promotion of education in the fields of nature,
25    preservation and conservation; or
26        (5) similar public recreational activities conducted

 

 

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1    by the Illinois Prairie Path Corporation.
2    No lien shall attach to the property of the State. No tax
3liability shall become the obligation of or be enforceable
4against Illinois Prairie Path Corporation.
5    (c) If the State sells the James R. Thompson Center or the
6Elgin Mental Health Center and surrounding land located at 750
7S. State Street, Elgin, Illinois, as provided in subdivision
8(a)(2) of Section 7.4 of the State Property Control Act, to
9another entity whose property is not exempt and immediately
10thereafter enters into a leaseback or other agreement that
11directly or indirectly gives the State a right to use, control,
12and possess the property, that portion of the property leased
13and occupied exclusively by the State shall remain exempt under
14this Section. For the property to remain exempt under this
15subsection (c), the State must retain an option to purchase the
16property at a future date or, within the limitations period for
17reverters, the property must revert back to the State.
18    If the property has been conveyed as described in this
19subsection (c), the property is no longer exempt pursuant to
20this Section as of the date when:
21        (1) the right of the State to use, control, and possess
22    the property has been terminated; or
23        (2) the State no longer has an option to purchase or
24    otherwise acquire the property and there is no provision
25    for a reverter of the property to the State within the
26    limitations period for reverters.

 

 

SB0146- 56 -LRB097 06233 HEP 46308 b

1    Pursuant to Sections 15-15 and 15-20 of this Code, the
2State shall notify the chief county assessment officer of any
3transaction under this subsection (c). The chief county
4assessment officer shall determine initial and continuing
5compliance with the requirements of this Section for tax
6exemption. Failure to notify the chief county assessment
7officer of a transaction under this subsection (c) or to
8otherwise comply with the requirements of Sections 15-15 and
915-20 of this Code shall, in the discretion of the chief county
10assessment officer, constitute cause to terminate the
11exemption, notwithstanding any other provision of this Code.
12    (c-1) If the Illinois State Toll Highway Authority sells
13the Illinois State Toll Highway Authority headquarters
14building and surrounding land, located at 2700 Ogden Avenue,
15Downers Grove, Illinois as provided in subdivision (a)(2) of
16Section 7.5 of the State Property Control Act, to another
17entity whose property is not exempt and immediately thereafter
18enters into a leaseback or other agreement that directly or
19indirectly gives the State or the Illinois State Toll Highway
20Authority a right to use, control, and possess the property,
21that portion of the property leased and occupied exclusively by
22the State or the Authority shall remain exempt under this
23Section. For the property to remain exempt under this
24subsection (c), the Authority must retain an option to purchase
25the property at a future date or, within the limitations period
26for reverters, the property must revert back to the Authority.

 

 

SB0146- 57 -LRB097 06233 HEP 46308 b

1    If the property has been conveyed as described in this
2subsection (c), the property is no longer exempt pursuant to
3this Section as of the date when:
4        (1) the right of the State or the Authority to use,
5    control, and possess the property has been terminated; or
6        (2) the Authority no longer has an option to purchase
7    or otherwise acquire the property and there is no provision
8    for a reverter of the property to the Authority within the
9    limitations period for reverters.
10    Pursuant to Sections 15-15 and 15-20 of this Code, the
11Authority shall notify the chief county assessment officer of
12any transaction under this subsection (c). The chief county
13assessment officer shall determine initial and continuing
14compliance with the requirements of this Section for tax
15exemption. Failure to notify the chief county assessment
16officer of a transaction under this subsection (c) or to
17otherwise comply with the requirements of Sections 15-15 and
1815-20 of this Code shall, in the discretion of the chief county
19assessment officer, constitute cause to terminate the
20exemption, notwithstanding any other provision of this Code.
21    (d) The fair market rent of each parcel of real property in
22Will County owned by the State of Illinois for the purpose of
23developing an airport by the Department of Transportation shall
24include the assessed value of leasehold tax. The lessee of each
25parcel of real property in Will County owned by the State of
26Illinois for the purpose of developing an airport by the

 

 

SB0146- 58 -LRB097 06233 HEP 46308 b

1Department of Transportation shall not be liable for the taxes
2thereon. In order for the State to compensate taxing districts
3for the leasehold tax under this paragraph the Will County
4Supervisor of Assessments shall certify, in writing, to the
5Department of Transportation, the amount of leasehold taxes
6extended for the 2002 property tax year for each such exempt
7parcel. The Department of Transportation shall pay to the Will
8County Treasurer, from the Tax Recovery Fund, on or before July
91 of each year, the amount of leasehold taxes for each such
10exempt parcel as certified by the Will County Supervisor of
11Assessments. The tax compensation shall terminate on December
1231, 2020. It is the duty of the Department of Transportation to
13file with the Office of the Will County Supervisor of
14Assessments an affidavit stating the termination date for
15rental of each such parcel due to airport construction. The
16affidavit shall include the property identification number for
17each such parcel. In no instance shall tax compensation for
18property owned by the State be deemed delinquent or bear
19interest. In no instance shall a lien attach to the property of
20the State. In no instance shall the State be required to pay
21leasehold tax compensation in excess of the Tax Recovery Fund's
22balance.
23    (e) Public Act 81-1026 applies to all leases or agreements
24entered into or renewed on or after September 24, 1979.
25    (f) Notwithstanding anything to the contrary in this Code,
26all property owned by the State that is the Illiana Expressway,

 

 

SB0146- 59 -LRB097 06233 HEP 46308 b

1as defined in the Public Private Agreements for the Illiana
2Expressway Act, and that is used for transportation purposes
3and that is leased for those purposes to another entity whose
4property is not exempt shall remain exempt, and any leasehold
5interest in the property shall not be subject to taxation under
6Section 9-195 of this Act.
7    (g) Notwithstanding anything to the contrary in this
8Section, all property owned by the State or the Illinois State
9Toll Highway Authority that is defined as a transportation
10project under the Public-Private Partnerships for
11Transportation Act and that is used for transportation purposes
12and that is leased for those purposes to another entity whose
13property is not exempt shall remain exempt, and any leasehold
14interest in the property shall not be subject to taxation under
15Section 9-195 of this Act.
16(Source: P.A. 95-331, eff. 8-21-07; 96-192, eff. 8-10-09;
1796-913, eff. 6-9-10.)
 
18    (35 ILCS 200/15-195 new)
19    Sec. 15-195. Exemption for qualified airport leased
20property. Notwithstanding anything in this Code to the
21contrary, all property owned by an airport authority created
22and established under the Airport Authorities Act shall remain
23exempt from taxation and any leasehold interest in that
24property is not subject to taxation under Section 9-195 if that
25property is used for transportation purposes as part of a

 

 

SB0146- 60 -LRB097 06233 HEP 46308 b

1transportation project undertaken pursuant to the
2Public-Private Partnerships for Transportation Act and is
3leased to another entity whose property is not exempt.
 
4    Section 945. The Toll Highway Act is amended by adding
5Section 11.1 as follows:
 
6    (605 ILCS 10/11.1 new)
7    Sec. 11.1. Public-private partnerships. The Authority may
8exercise all powers granted to it under the Public-Private
9Partnerships for Transportation Act.
 
10    Section 950. The Prevailing Wage Act is amended by changing
11Section 2 as follows:
 
12    (820 ILCS 130/2)  (from Ch. 48, par. 39s-2)
13    Sec. 2. This Act applies to the wages of laborers,
14mechanics and other workers employed in any public works, as
15hereinafter defined, by any public body and to anyone under
16contracts for public works. This includes any maintenance,
17repair, assembly, or disassembly work performed on equipment
18whether owned, leased, or rented.
19    As used in this Act, unless the context indicates
20otherwise:
21    "Public works" means all fixed works constructed or
22demolished by any public body, or paid for wholly or in part

 

 

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1out of public funds. "Public works" as defined herein includes
2all projects financed in whole or in part with bonds, grants,
3loans, or other funds made available by or through the State or
4any of its political subdivisions, including but not limited
5to: bonds issued under the Industrial Project Revenue Bond Act
6(Article 11, Division 74 of the Illinois Municipal Code), the
7Industrial Building Revenue Bond Act, the Illinois Finance
8Authority Act, the Illinois Sports Facilities Authority Act, or
9the Build Illinois Bond Act; loans or other funds made
10available pursuant to the Build Illinois Act; or funds from the
11Fund for Illinois' Future under Section 6z-47 of the State
12Finance Act, funds for school construction under Section 5 of
13the General Obligation Bond Act, funds authorized under Section
143 of the School Construction Bond Act, funds for school
15infrastructure under Section 6z-45 of the State Finance Act,
16and funds for transportation purposes under Section 4 of the
17General Obligation Bond Act. "Public works" also includes (i)
18all projects financed in whole or in part with funds from the
19Department of Commerce and Economic Opportunity under the
20Illinois Renewable Fuels Development Program Act for which
21there is no project labor agreement; and (ii) all work
22performed pursuant to a public private agreement under the
23Public Private Agreements for the Illiana Expressway Act; and
24(iii) all projects undertaken under a public-private agreement
25under the Public-Private Partnerships for Transportation Act.
26"Public works" also includes all projects at leased facility

 

 

SB0146- 62 -LRB097 06233 HEP 46308 b

1property used for airport purposes under Section 35 of the
2Local Government Facility Lease Act. "Public works" also
3includes the construction of a new wind power facility by a
4business designated as a High Impact Business under Section
55.5(a)(3)(E) of the Illinois Enterprise Zone Act. "Public
6works" does not include work done directly by any public
7utility company, whether or not done under public supervision
8or direction, or paid for wholly or in part out of public
9funds. "Public works" does not include projects undertaken by
10the owner at an owner-occupied single-family residence or at an
11owner-occupied unit of a multi-family residence.
12    "Construction" means all work on public works involving
13laborers, workers or mechanics. This includes any maintenance,
14repair, assembly, or disassembly work performed on equipment
15whether owned, leased, or rented.
16    "Locality" means the county where the physical work upon
17public works is performed, except (1) that if there is not
18available in the county a sufficient number of competent
19skilled laborers, workers and mechanics to construct the public
20works efficiently and properly, "locality" includes any other
21county nearest the one in which the work or construction is to
22be performed and from which such persons may be obtained in
23sufficient numbers to perform the work and (2) that, with
24respect to contracts for highway work with the Department of
25Transportation of this State, "locality" may at the discretion
26of the Secretary of the Department of Transportation be

 

 

SB0146- 63 -LRB097 06233 HEP 46308 b

1construed to include two or more adjacent counties from which
2workers may be accessible for work on such construction.
3    "Public body" means the State or any officer, board or
4commission of the State or any political subdivision or
5department thereof, or any institution supported in whole or in
6part by public funds, and includes every county, city, town,
7village, township, school district, irrigation, utility,
8reclamation improvement or other district and every other
9political subdivision, district or municipality of the state
10whether such political subdivision, municipality or district
11operates under a special charter or not.
12    The terms "general prevailing rate of hourly wages",
13"general prevailing rate of wages" or "prevailing rate of
14wages" when used in this Act mean the hourly cash wages plus
15fringe benefits for training and apprenticeship programs
16approved by the U.S. Department of Labor, Bureau of
17Apprenticeship and Training, health and welfare, insurance,
18vacations and pensions paid generally, in the locality in which
19the work is being performed, to employees engaged in work of a
20similar character on public works.
21(Source: P.A. 95-341, eff. 8-21-07; 96-28, eff. 7-1-09; 96-58,
22eff. 1-1-10; 96-186, eff. 1-1-10; 96-913, eff. 6-9-10; 96-1000,
23eff. 7-2-10.)
 
24    Section 999. Effective date. This Act takes effect upon
25becoming law.