Illinois General Assembly - Full Text of HB1091
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Full Text of HB1091  97th General Assembly

HB1091eng 97TH GENERAL ASSEMBLY

  
  
  

 


 
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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 to 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 shall not use any revenue generated by any
10toll highway, or portions thereof, under the Authority's
11jurisdiction which were open to vehicular traffic on the
12effective date of this Act to enter into or provide funding for
13a public-private agreement. The Authority shall not use any
14asset, or the proceeds from the sale or lease of any such
15asset, which was owned by the Authority on the effective date
16of this Act to enter into or provide funding for a
17public-private agreement. The Authority may enter into a
18public-private partnership to develop, finance, and operate
19new toll highways authorized by the Governor and the General
20Assembly pursuant to Section 14.1 of the Toll Highway Act,
21non-highway transportation projects on the toll highway system
22such as commuter rail or high-speed rail lines, and intelligent
23transportation infrastructure that will enhance the safety,
24efficiency, and environmental quality of the toll highway
25system.
26    (c) A contractor has:

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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1the county or counties in which the transportation project is
2to be located, and publish the entire agreement on its website.
3Any action to contest the validity of a public-private
4agreement entered into under this Act must be brought no later
5than 60 days after the date of publication of the notice of
6execution of the public-private agreement.
7    (h) For any transportation project with an estimated
8construction cost of over $50,000,000, the transportation
9agency may also require the approved proposer to pay the costs
10for an independent audit of any and all traffic and cost
11estimates associated with the approved proposal, as well as a
12review of all public costs and potential liabilities to which
13taxpayers could be exposed (including improvements to other
14transportation facilities that may be needed as a result of the
15approved proposal, failure by the approved proposer to
16reimburse the transportation agency for services provided, and
17potential risk and liability in the event the approved proposer
18defaults on the public-private agreement or on bonds issued for
19the project). If required by the transportation agency, this
20independent audit must be conducted by an independent
21consultant selected by the transportation agency, and all
22information from the review must be fully disclosed.
23    (i) The transportation agency may also apply for, execute,
24or endorse applications submitted by private entities to obtain
25federal credit assistance for qualifying projects developed or
26operated pursuant to this Act.
 

 

 

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

 

 

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

 

 

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1qualifications. The transportation agency shall include in the
2request for proposals a minimum of 30 days to develop the
3proposals after the selection of entities from the evaluation
4of the statements of qualifications is completed.
5    (c)(1) The transportation agency shall develop, with the
6assistance of a licensed design professional, the request for
7qualifications and the request for proposals, which shall
8include scope and performance criteria. The scope and
9performance criteria must be in sufficient detail and contain
10adequate information to reasonably apprise the private
11entities of the transportation agency's overall programmatic
12needs and goals, including criteria and preliminary design
13plans, general budget parameters, schedule, and delivery
14requirements.
15    (2) Each request for qualifications and request for
16proposals shall also include a description of the level of
17design to be provided in the proposals. This description must
18include the scope and type of renderings, drawings, and
19specifications that, at a minimum, will be required by the
20transportation agency to be produced by the private entities.
21    (3) The scope and performance criteria shall be prepared by
22a design professional who is an employee of the transportation
23agency, or the transportation agency may contract with an
24independent design professional selected under the
25Architectural, Engineering, and Land Surveying Qualifications
26Based Selection Act to provide these services.

 

 

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

 

 

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

 

 

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1    (3) The transportation agency shall include in the request
2for proposals the evaluating factors to be used in the
3technical and cost submission components. Each request for
4proposals shall establish, for both the technical and cost
5submission components, the relative importance assigned to
6each evaluation factor and subfactor, including any weighting
7of criteria to be employed by the transportation agency. The
8transportation agency must maintain a record of the evaluation
9scoring to be disclosed in event of a protest regarding the
10solicitation.
11    The transportation agency shall include the following
12criteria in every request for proposals phase technical
13evaluation of private entities: (i) compliance with objectives
14of the project; (ii) compliance of proposed services to the
15request for proposal requirements; (iii) quality of products or
16materials proposed; (iv) quality of design parameters; (v)
17design concepts; (vi) innovation in meeting the scope and
18performance criteria; and (vii) constructability of the
19proposed project. The transportation agency may include any
20additional relevant technical evaluation factors it deems
21necessary for proper selection.
22    The transportation agency shall include the following
23criteria in every request for proposals phase cost evaluation:
24the total project cost and the time of completion. The
25transportation agency may include any additional relevant
26technical evaluation factors it deems necessary for proper

 

 

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

 

 

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1material requirements of the request for qualifications or
2request for proposals, or else they may be rejected as
3non-responsive. The transportation agency shall have the right
4to reject any and all statements of qualifications and
5proposals.
6    The drawings and specifications of any unsuccessful
7statement of qualifications or proposal shall remain the
8property of the private entity.
9    The transportation agency shall review the statements of
10qualifications and the proposals for compliance with the
11performance criteria and evaluation factors.
12    Statements of qualifications and proposals may be
13withdrawn prior to the due date and time for submissions for
14any cause. After evaluation begins by the transportation
15agency, clear and convincing evidence of error is required for
16withdrawal.
 
17    Section 30. Interim agreements.
18    (a) Prior to or in connection with the negotiation of the
19public-private agreement, the transportation agency may enter
20into an interim agreement with the approved proposer. Such
21interim agreement may:
22        (1) permit the approved proposer to commence
23    activities relating to a proposed project as the
24    transportation agency and the approved proposer shall
25    agree to and for which the approved proposer may be

 

 

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

 

 

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1    transportation agency, procedures consistent with the low
2    bid procurement procedures outlined in the Illinois
3    Procurement Code for the selection of construction
4    companies; and
5        (6) contain any other provisions related to any aspect
6    of the transportation project that the parties may deem
7    appropriate.
8    (b) A transportation agency may enter into an interim
9agreement with multiple approved proposers if the
10transportation agency determines in writing that it is in the
11public interest to do so.
12    (c) The approved proposer shall select firms that are
13prequalified by the transportation agency pursuant to Section
1420 of the Architectural, Engineering, and Land Surveying
15Qualifications Based Selection Act to provide architectural,
16engineering, and land surveying services to undertake
17activities related to the transportation project.
 
18    Section 35. Public-private agreements.
19    (a) Unless undertaking actions otherwise permitted in an
20interim agreement entered into under Section 30 of this Act,
21before developing, financing, or operating the transportation
22project, the approved proposer shall enter into a
23public-private agreement with the transportation agency.
24Subject to the requirements of this Act, a public-private
25agreement may provide that the approved proposer, acting on

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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1    requirements of Section 30-22 of the Illinois Procurement
2    Code as they apply to responsible bidders, and the Illinois
3    Professional Land Surveyor Act of 1989; and
4        (3) any other applicable State or federal standards.
5    (b) Each highway project constructed or operated under this
6Act is considered to be part of:
7        (1) the State highway system for purposes of
8    identification, maintenance standards, and enforcement of
9    traffic laws if the highway project is under the
10    jurisdiction of the Department; or
11        (2) the toll highway system for purposes of
12    identification, maintenance standards, and enforcement of
13    traffic laws if the highway project is under the
14    jurisdiction of the Authority.
15    (c) Any unit of local government or State agency may enter
16into agreements with the contractor for maintenance or other
17services under this Act.
18    (d) Any electronic toll collection system used on a toll
19highway, bridge, or tunnel as part of a transportation project
20must be compatible with the electronic toll collection system
21used by the Authority. The Authority is authorized to
22construct, operate, and maintain any electronic toll
23collection system used on a toll highway, bridge, or tunnel as
24part of a transportation project pursuant to an agreement with
25the transportation agency or the contractor responsible for the
26transportation project.
 

 

 

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1    Section 45. Financial arrangements.
2    (a) The transportation agency may do any combination of
3applying for, executing, or endorsing applications submitted
4by private entities to obtain federal, State, or local credit
5assistance for transportation projects developed, financed, or
6operated under this Act, including loans, lines of credit, and
7guarantees.
8    (b) The transportation agency may take any action to obtain
9federal, State, or local assistance for a transportation
10project that serves the public purpose of this Act and may
11enter into any contracts required to receive the federal
12assistance. The transportation agency may determine that it
13serves the public purpose of this Act for all or any portion of
14the costs of a transportation project to be paid, directly or
15indirectly, from the proceeds of a grant or loan, line of
16credit, or loan guarantee made by a local, State, or federal
17government or any agency or instrumentality of a local, State,
18or federal government. Such assistance may include, but not be
19limited to, federal credit assistance pursuant to the
20Transportation Infrastructure Finance and Innovation Act
21(TIFIA).
22    (c) The transportation agency may agree to make grants or
23loans for the development, financing, or operation of a
24transportation project from time to time, from amounts received
25from the federal, State, or local government or any agency or

 

 

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1instrumentality of the federal, State, or local government.
2    (d) Any financing of a transportation project may be in the
3amounts and upon the terms and conditions that are determined
4by the parties to the public-private agreement.
5    (e) For the purpose of financing a transportation project,
6the contractor and the transportation agency may do the
7following:
8        (1) propose to use any and all revenues that may be
9    available to them;
10        (2) enter into grant agreements;
11        (3) access any other funds available to the
12    transportation agency; and
13        (4) accept grants from the transportation agency or
14    other public or private agency or entity.
15    (f) For the purpose of financing a transportation project,
16public funds may be used and mixed and aggregated with funds
17provided by or on behalf of the contractor or other private
18entities.
19    (g) For the purpose of financing a transportation project,
20each transportation agency is authorized to do any combination
21of applying for, executing, or endorsing applications for an
22allocation of tax-exempt bond financing authorization provided
23by Section 142(m) of the United States Internal Revenue Code,
24as well as financing available under any other federal law or
25program.
26    (h) Any bonds, debt, or other securities or other financing

 

 

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1issued for the purposes of this Act shall not be deemed to
2constitute a debt of the State or any political subdivision of
3the State or a pledge of the faith and credit of the State or
4any political subdivision of the State.
 
5    Section 50. Acquisition of property.
6    (a) The transportation agency may exercise any power of
7condemnation or eminent domain, including quick-take powers,
8that it has under law, including, in the case of the
9Department, all powers for acquisition of property rights
10granted it in the Illinois Highway Code, for the purpose of
11acquiring any lands or estates or interests in land for a
12transportation project to the extent provided in the
13public-private agreement or otherwise to the extent that the
14transportation agency finds that the action serves the public
15purpose of this Act and deems it appropriate in the exercise of
16its powers under this Act.
17    (b) The transportation agency and a contractor may enter
18into the leases, licenses, easements, and other grants of
19property interests that the transportation agency determines
20necessary to carry out this Act.
 
21    Section 55. Labor.
22    (a) A public-private agreement related to a transportation
23project pertaining to the building, altering, repairing,
24maintaining, improving, or demolishing a transportation

 

 

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1facility shall require the contractor and all subcontractors to
2comply with the requirements of Section 30-22 of the Illinois
3Procurement Code as they apply to responsible bidders and to
4present satisfactory evidence of that compliance to the
5transportation agency, unless the transportation project is
6federally funded and the application of those requirements
7would jeopardize the receipt or use of federal funds in support
8of the transportation project.
9    (b) A public-private agreement related to a transportation
10project pertaining to a new transportation facility shall
11require the contractor to enter into a project labor agreement
12utilized by the Department.
 
13    Section 60. Law enforcement.
14    (a) All law enforcement officers of the State and of each
15affected local jurisdiction have the same powers and
16jurisdiction within the limits of the transportation facility
17as they have in their respective areas of jurisdiction.
18    (b) Law enforcement officers shall have access to the
19transportation facility at any time for the purpose of
20exercising the law enforcement officers' powers and
21jurisdiction.
22    (c) The traffic and motor vehicle laws of the State of
23Illinois or, if applicable, any local jurisdiction shall be the
24same as those applying to conduct on similar projects in the
25State of Illinois or the local jurisdiction.

 

 

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

 

 

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

 

 

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1arrangements with the Department of State Police related to
2costs incurred in providing law enforcement assistance under
3this Act.
 
4    Section 75. Prohibited local action. A unit of local
5government may not take any action that would have the effect
6of impairing a public-private agreement under this Act,
7provided that this Section 75 shall not diminish any existing
8police power or other power provided by law to a unit of local
9government.
 
10    Section 80. Powers liberally construed. The powers
11conferred by this Act shall be liberally construed in order to
12accomplish their purposes and shall be in addition and
13supplemental to the powers conferred by any other law. If any
14other law or rule is inconsistent with this Act, this Act is
15controlling as to any public-private agreement entered into
16under this Act.
 
17    Section 85. Full and complete authority. This Act contains
18full and complete authority for agreements and leases with
19private entities to carry out the activities described in this
20Act. Except as otherwise required by law, no procedure,
21proceedings, publications, notices, consents, approvals,
22orders, or acts by the transportation agency or any other State
23or local agency or official are required to enter into an

 

 

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1agreement or lease.
 
2    Section 905. The Department of Transportation Law of the
3Civil Administrative Code of Illinois is amended by adding
4Section 2705-222 as follows:
 
5    (20 ILCS 2705/2705-222 new)
6    Sec. 2705-222. Public-private partnerships for
7transportation. The Department may exercise all powers granted
8to it under the Public-Private Partnerships for Transportation
9Act.
 
10    Section 910. The Illinois Finance Authority Act is amended
11by adding Section 825-106 as follows:
 
12    (20 ILCS 3501/825-106 new)
13    Sec. 825-106. Transportation project financing. For the
14purpose of financing a transportation project undertaken under
15the Public-Private Partnerships for Transportation Act, the
16Authority is authorized to apply for an allocation of
17tax-exempt bond financing authorization provided by Section
18142(m) of the United States Internal Revenue Code, as well as
19financing available under any other federal law or program.
 
20    Section 915. The Illinois Procurement Code is amended by
21changing Section 1-10 as follows:
 

 

 

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1    (30 ILCS 500/1-10)
2    Sec. 1-10. Application.
3    (a) This Code applies only to procurements for which
4contractors were first solicited on or after July 1, 1998. This
5Code shall not be construed to affect or impair any contract,
6or any provision of a contract, entered into based on a
7solicitation prior to the implementation date of this Code as
8described in Article 99, including but not limited to any
9covenant entered into with respect to any revenue bonds or
10similar instruments. All procurements for which contracts are
11solicited between the effective date of Articles 50 and 99 and
12July 1, 1998 shall be substantially in accordance with this
13Code and its intent.
14    (b) This Code shall apply regardless of the source of the
15funds with which the contracts are paid, including federal
16assistance moneys. This Code shall not apply to:
17        (1) Contracts between the State and its political
18    subdivisions or other governments, or between State
19    governmental bodies except as specifically provided in
20    this Code.
21        (2) Grants, except for the filing requirements of
22    Section 20-80.
23        (3) Purchase of care.
24        (4) Hiring of an individual as employee and not as an
25    independent contractor, whether pursuant to an employment

 

 

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1    code or policy or by contract directly with that
2    individual.
3        (5) Collective bargaining contracts.
4        (6) Purchase of real estate, except that notice of this
5    type of contract with a value of more than $25,000 must be
6    published in the Procurement Bulletin within 7 days after
7    the deed is recorded in the county of jurisdiction. The
8    notice shall identify the real estate purchased, the names
9    of all parties to the contract, the value of the contract,
10    and the effective date of the contract.
11        (7) Contracts necessary to prepare for anticipated
12    litigation, enforcement actions, or investigations,
13    provided that the chief legal counsel to the Governor shall
14    give his or her prior approval when the procuring agency is
15    one subject to the jurisdiction of the Governor, and
16    provided that the chief legal counsel of any other
17    procuring entity subject to this Code shall give his or her
18    prior approval when the procuring entity is not one subject
19    to the jurisdiction of the Governor.
20        (8) Contracts for services to Northern Illinois
21    University by a person, acting as an independent
22    contractor, who is qualified by education, experience, and
23    technical ability and is selected by negotiation for the
24    purpose of providing non-credit educational service
25    activities or products by means of specialized programs
26    offered by the university.

 

 

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1        (9) Procurement expenditures by the Illinois
2    Conservation Foundation when only private funds are used.
3        (10) Procurement expenditures by the Illinois Health
4    Information Exchange Authority involving private funds
5    from the Health Information Exchange Fund. "Private funds"
6    means gifts, donations, and private grants.
7        (11) Public-private agreements entered into according
8    to the procurement requirements of Section 20 of the
9    Public-Private Partnerships for Transportation Act and
10    design-build agreements entered into according to the
11    procurement requirements of Section 25 of the
12    Public-Private Partnerships for Transportation Act.
13    (c) This Code does not apply to the electric power
14procurement process provided for under Section 1-75 of the
15Illinois Power Agency Act and Section 16-111.5 of the Public
16Utilities Act.
17    (d) Except for Section 20-160 and Article 50 of this Code,
18and as expressly required by Section 9.1 of the Illinois
19Lottery Law, the provisions of this Code do not apply to the
20procurement process provided for under Section 9.1 of the
21Illinois Lottery Law.
22(Source: P.A. 95-481, eff. 8-28-07; 95-615, eff. 9-11-07;
2395-876, eff. 8-21-08; 96-840, eff. 12-23-09; 96-1331, eff.
247-27-10.)
 
25    Section 920. The Public Construction Bond Act is amended by

 

 

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1adding Section 1.7 as follows:
 
2    (30 ILCS 550/1.7 new)
3    Sec. 1.7. Public-private agreements. This Act applies to
4any public-private agreement entered into under the
5Public-Private Partnerships for Transportation Act.
 
6    Section 925. The Employment of Illinois Workers on Public
7Works Act is amended by adding Section 2.7 as follows:
 
8    (30 ILCS 570/2.7 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 930. The Business Enterprise for Minorities,
13Females, and Persons with Disabilities Act is amended by adding
14Section 2.7 as follows:
 
15    (30 ILCS 575/2.7 new)
16    Sec. 2.7. Public-private agreements. This Act applies to
17any public-private agreement entered into under the
18Public-Private Partnerships for Transportation Act.
 
19    Section 935. The Retailers' Occupation Tax Act is amended
20by adding Section 1r as follows:
 

 

 

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

 

 

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1        (3) the signature of the director of the agency with
2    authority over the project or the director's delegate.
3    (d) In addition to meeting the requirements of subsection
4(c) of this Act, the retailer must obtain a certificate from
5the purchaser that contains all of the following:
6        (1) a statement that the building materials are being
7    purchased for incorporation into a project in accordance
8    with the Public-Private Partnerships for Transportation
9    Act;
10        (2) the location or address of the project into which
11    the building materials will be incorporated;
12        (3) the name of the project;
13        (4) a description of the building materials being
14    purchased; and
15        (5) the purchaser's signature and date of purchase.
16    (e) This Section is exempt from Section 2-70 of this Act.
 
17    Section 940. The Property Tax Code is amended by changing
18Section 15-55 and by adding Section 15-195 as follows:
 
19    (35 ILCS 200/15-55)
20    Sec. 15-55. State property.
21    (a) All property belonging to the State of Illinois is
22exempt. However, the State agency holding title shall file the
23certificate of ownership and use required by Section 15-10,
24together with a copy of any written lease or agreement, in

 

 

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1effect on March 30 of the assessment year, concerning parcels
2of 1 acre or more, or an explanation of the terms of any oral
3agreement under which the property is leased, subleased or
4rented.
5    The leased property shall be assessed to the lessee and the
6taxes thereon extended and billed to the lessee, and collected
7in the same manner as for property which is not exempt. The
8lessee shall be liable for the taxes and no lien shall attach
9to the property of the State.
10    For the purposes of this Section, the word "leases"
11includes licenses, franchises, operating agreements and other
12arrangements under which private individuals, associations or
13corporations are granted the right to use property of the
14Illinois State Toll Highway Authority and includes all property
15of the Authority used by others without regard to the size of
16the leased parcel.
17    (b) However, all property of every kind belonging to the
18State of Illinois, which is or may hereafter be leased to the
19Illinois Prairie Path Corporation, shall be exempt from all
20assessments, taxation or collection, despite the making of any
21such lease, if it is used for:
22        (1) conservation, nature trail or any other
23    charitable, scientific, educational or recreational
24    purposes with public benefit, including the preserving and
25    aiding in the preservation of natural areas, objects,
26    flora, fauna or biotic communities;

 

 

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1        (2) the establishment of footpaths, trails and other
2    protected areas;
3        (3) the conservation of the proper use of natural
4    resources or the promotion of the study of plant and animal
5    communities and of other phases of ecology, natural history
6    and conservation;
7        (4) the promotion of education in the fields of nature,
8    preservation and conservation; or
9        (5) similar public recreational activities conducted
10    by the Illinois Prairie Path Corporation.
11    No lien shall attach to the property of the State. No tax
12liability shall become the obligation of or be enforceable
13against Illinois Prairie Path Corporation.
14    (c) If the State sells the James R. Thompson Center or the
15Elgin Mental Health Center and surrounding land located at 750
16S. State Street, Elgin, Illinois, as provided in subdivision
17(a)(2) of Section 7.4 of the State Property Control Act, to
18another entity whose property is not exempt and immediately
19thereafter enters into a leaseback or other agreement that
20directly or indirectly gives the State a right to use, control,
21and possess the property, that portion of the property leased
22and occupied exclusively by the State shall remain exempt under
23this Section. For the property to remain exempt under this
24subsection (c), the State must retain an option to purchase the
25property at a future date or, within the limitations period for
26reverters, the property must revert back to the State.

 

 

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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 to use, control, and possess
5    the property has been terminated; or
6        (2) the State no longer has an option to purchase or
7    otherwise acquire the property and there is no provision
8    for a reverter of the property to the State within the
9    limitations period for reverters.
10    Pursuant to Sections 15-15 and 15-20 of this Code, the
11State shall notify the chief county assessment officer of any
12transaction 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    (c-1) If the Illinois State Toll Highway Authority sells
22the Illinois State Toll Highway Authority headquarters
23building and surrounding land, located at 2700 Ogden Avenue,
24Downers Grove, Illinois as provided in subdivision (a)(2) of
25Section 7.5 of the State Property Control Act, to another
26entity whose property is not exempt and immediately thereafter

 

 

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1enters into a leaseback or other agreement that directly or
2indirectly gives the State or the Illinois State Toll Highway
3Authority a right to use, control, and possess the property,
4that portion of the property leased and occupied exclusively by
5the State or the Authority shall remain exempt under this
6Section. For the property to remain exempt under this
7subsection (c), the Authority must retain an option to purchase
8the property at a future date or, within the limitations period
9for reverters, the property must revert back to the Authority.
10    If the property has been conveyed as described in this
11subsection (c), the property is no longer exempt pursuant to
12this Section as of the date when:
13        (1) the right of the State or the Authority to use,
14    control, and possess the property has been terminated; or
15        (2) the Authority no longer has an option to purchase
16    or otherwise acquire the property and there is no provision
17    for a reverter of the property to the Authority within the
18    limitations period for reverters.
19    Pursuant to Sections 15-15 and 15-20 of this Code, the
20Authority shall notify the chief county assessment officer of
21any transaction under this subsection (c). The chief county
22assessment officer shall determine initial and continuing
23compliance with the requirements of this Section for tax
24exemption. Failure to notify the chief county assessment
25officer of a transaction under this subsection (c) or to
26otherwise comply with the requirements of Sections 15-15 and

 

 

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115-20 of this Code shall, in the discretion of the chief county
2assessment officer, constitute cause to terminate the
3exemption, notwithstanding any other provision of this Code.
4    (d) The fair market rent of each parcel of real property in
5Will County owned by the State of Illinois for the purpose of
6developing an airport by the Department of Transportation shall
7include the assessed value of leasehold tax. The lessee of each
8parcel of real property in Will County owned by the State of
9Illinois for the purpose of developing an airport by the
10Department of Transportation shall not be liable for the taxes
11thereon. In order for the State to compensate taxing districts
12for the leasehold tax under this paragraph the Will County
13Supervisor of Assessments shall certify, in writing, to the
14Department of Transportation, the amount of leasehold taxes
15extended for the 2002 property tax year for each such exempt
16parcel. The Department of Transportation shall pay to the Will
17County Treasurer, from the Tax Recovery Fund, on or before July
181 of each year, the amount of leasehold taxes for each such
19exempt parcel as certified by the Will County Supervisor of
20Assessments. The tax compensation shall terminate on December
2131, 2020. It is the duty of the Department of Transportation to
22file with the Office of the Will County Supervisor of
23Assessments an affidavit stating the termination date for
24rental of each such parcel due to airport construction. The
25affidavit shall include the property identification number for
26each such parcel. In no instance shall tax compensation for

 

 

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1property owned by the State be deemed delinquent or bear
2interest. In no instance shall a lien attach to the property of
3the State. In no instance shall the State be required to pay
4leasehold tax compensation in excess of the Tax Recovery Fund's
5balance.
6    (e) Public Act 81-1026 applies to all leases or agreements
7entered into or renewed on or after September 24, 1979.
8    (f) Notwithstanding anything to the contrary in this Code,
9all property owned by the State that is the Illiana Expressway,
10as defined in the Public Private Agreements for the Illiana
11Expressway 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    (g) Notwithstanding anything to the contrary in this
17Section, all property owned by the State or the Illinois State
18Toll Highway Authority that is defined as a transportation
19project under the Public-Private Partnerships for
20Transportation Act and that is used for transportation purposes
21and that is leased for those purposes to another entity whose
22property is not exempt shall remain exempt, and any leasehold
23interest in the property shall not be subject to taxation under
24Section 9-195 of this Act.
25(Source: P.A. 95-331, eff. 8-21-07; 96-192, eff. 8-10-09;
2696-913, eff. 6-9-10.)
 

 

 

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1    (35 ILCS 200/15-195 new)
2    Sec. 15-195. Exemption for qualified airport leased
3property. Notwithstanding anything in this Code to the
4contrary, all property owned by an airport authority created
5and established under the Airport Authorities Act shall remain
6exempt from taxation and any leasehold interest in that
7property is not subject to taxation under Section 9-195 if that
8property is used for transportation purposes as part of a
9transportation project undertaken pursuant to the
10Public-Private Partnerships for Transportation Act and is
11leased to another entity whose property is not exempt.
 
12    Section 945. The Toll Highway Act is amended by adding
13Section 11.1 as follows:
 
14    (605 ILCS 10/11.1 new)
15    Sec. 11.1. Public-private partnerships. The Authority may
16exercise all powers granted to it under the Public-Private
17Partnerships for Transportation Act.
 
18    Section 950. The Prevailing Wage Act is amended by changing
19Section 2 as follows:
 
20    (820 ILCS 130/2)  (from Ch. 48, par. 39s-2)
21    Sec. 2. This Act applies to the wages of laborers,

 

 

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1mechanics and other workers employed in any public works, as
2hereinafter defined, by any public body and to anyone under
3contracts for public works. This includes any maintenance,
4repair, assembly, or disassembly work performed on equipment
5whether owned, leased, or rented.
6    As used in this Act, unless the context indicates
7otherwise:
8    "Public works" means all fixed works constructed or
9demolished by any public body, or paid for wholly or in part
10out of public funds. "Public works" as defined herein includes
11all projects financed in whole or in part with bonds, grants,
12loans, or other funds made available by or through the State or
13any of its political subdivisions, including but not limited
14to: bonds issued under the Industrial Project Revenue Bond Act
15(Article 11, Division 74 of the Illinois Municipal Code), the
16Industrial Building Revenue Bond Act, the Illinois Finance
17Authority Act, the Illinois Sports Facilities Authority Act, or
18the Build Illinois Bond Act; loans or other funds made
19available pursuant to the Build Illinois Act; or funds from the
20Fund for Illinois' Future under Section 6z-47 of the State
21Finance Act, funds for school construction under Section 5 of
22the General Obligation Bond Act, funds authorized under Section
233 of the School Construction Bond Act, funds for school
24infrastructure under Section 6z-45 of the State Finance Act,
25and funds for transportation purposes under Section 4 of the
26General Obligation Bond Act. "Public works" also includes (i)

 

 

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1all projects financed in whole or in part with funds from the
2Department of Commerce and Economic Opportunity under the
3Illinois Renewable Fuels Development Program Act for which
4there is no project labor agreement; and (ii) all work
5performed pursuant to a public private agreement under the
6Public Private Agreements for the Illiana Expressway Act; and
7(iii) all projects undertaken under a public-private agreement
8under the Public-Private Partnerships for Transportation Act.
9"Public works" also includes all projects at leased facility
10property used for airport purposes under Section 35 of the
11Local Government Facility Lease Act. "Public works" also
12includes the construction of a new wind power facility by a
13business designated as a High Impact Business under Section
145.5(a)(3)(E) of the Illinois Enterprise Zone Act. "Public
15works" does not include work done directly by any public
16utility company, whether or not done under public supervision
17or direction, or paid for wholly or in part out of public
18funds. "Public works" does not include projects undertaken by
19the owner at an owner-occupied single-family residence or at an
20owner-occupied unit of a multi-family residence.
21    "Construction" means all work on public works involving
22laborers, workers or mechanics. This includes any maintenance,
23repair, assembly, or disassembly work performed on equipment
24whether owned, leased, or rented.
25    "Locality" means the county where the physical work upon
26public works is performed, except (1) that if there is not

 

 

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1available in the county a sufficient number of competent
2skilled laborers, workers and mechanics to construct the public
3works efficiently and properly, "locality" includes any other
4county nearest the one in which the work or construction is to
5be performed and from which such persons may be obtained in
6sufficient numbers to perform the work and (2) that, with
7respect to contracts for highway work with the Department of
8Transportation of this State, "locality" may at the discretion
9of the Secretary of the Department of Transportation be
10construed to include two or more adjacent counties from which
11workers may be accessible for work on such construction.
12    "Public body" means the State or any officer, board or
13commission of the State or any political subdivision or
14department thereof, or any institution supported in whole or in
15part by public funds, and includes every county, city, town,
16village, township, school district, irrigation, utility,
17reclamation improvement or other district and every other
18political subdivision, district or municipality of the state
19whether such political subdivision, municipality or district
20operates under a special charter or not.
21    The terms "general prevailing rate of hourly wages",
22"general prevailing rate of wages" or "prevailing rate of
23wages" when used in this Act mean the hourly cash wages plus
24fringe benefits for training and apprenticeship programs
25approved by the U.S. Department of Labor, Bureau of
26Apprenticeship and Training, health and welfare, insurance,

 

 

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1vacations and pensions paid generally, in the locality in which
2the work is being performed, to employees engaged in work of a
3similar character on public works.
4(Source: P.A. 95-341, eff. 8-21-07; 96-28, eff. 7-1-09; 96-58,
5eff. 1-1-10; 96-186, eff. 1-1-10; 96-913, eff. 6-9-10; 96-1000,
6eff. 7-2-10.)
 
7    Section 999. Effective date. This Act takes effect upon
8becoming law.