SB3318 97TH GENERAL ASSEMBLY

  
  

 


 
97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
SB3318

 

Introduced 2/7/2012, by Sen. Toi W. Hutchinson

 

SYNOPSIS AS INTRODUCED:
 
605 ILCS 130/25
605 ILCS 130/80
605 ILCS 130/95
735 ILCS 30/15-5-35

    Amends the Public Private Agreements for the Illiana Expressway Act. Removes language providing that a public private agreement includes a provision stating that, in the event the contractor finds it necessary, proper, or desirable to enter into subcontracts with one or more design build entities, then it must follow a selection process that is, to the greatest extent possible, identical to the selection process contained in the Design Build Procurement Act. Provides that the Department of Transportation may acquire property for the Illiana Expressway project using the powers granted to it in the Eminent Domain Act. Provides that any bonds, debt, or other securities or other financing issued by or on behalf of a contractor for the purposes of a project undertaken pursuant to the Act shall not be deemed to constitute a debt of the State. Removes language providing that the Department may not exercise the power of quick take in connection with the Illiana Expressway project. Makes a corresponding change in the Eminent Domain Act. Effective immediately.


LRB097 17401 HEP 64211 b

 

 

A BILL FOR

 

SB3318LRB097 17401 HEP 64211 b

1    AN ACT concerning transportation.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Public Private Agreements for the Illiana
5Expressway Act is amended by changing Sections 25, 80, and 95
6as follows:
 
7    (605 ILCS 130/25)
8    Sec. 25. Provisions of the public private agreement.
9    (a) The public private agreement shall include all of the
10following:
11        (1) The term of the public private agreement that is
12    consistent with Section 15 of this Act;
13        (2) The powers, duties, responsibilities, obligations,
14    and functions of the Department and the contractor;
15        (3) Compensation or payments to the Department, if
16    applicable;
17        (4) Compensation or payments to the contractor;
18        (5) A provision specifying that the Department:
19            (A) has ready access to information regarding the
20        contractor's powers, duties, responsibilities,
21        obligations, and functions under the public private
22        agreement;
23            (B) has the right to demand and receive information

 

 

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1        from the contractor concerning any aspect of the
2        contractor's powers, duties, responsibilities,
3        obligations, and functions under the public private
4        agreement; and
5            (C) has the authority to direct or countermand
6        decisions by the contractor at any time;
7        (6) A provision imposing an affirmative duty on the
8    contractor to provide the Department with any information
9    the contractor reasonably believes the Department would
10    want to know or would need to know to enable the Department
11    to exercise its powers, carry out its duties,
12    responsibilities, and obligations, and perform its
13    functions under this Act or the public private agreement or
14    as otherwise required by law;
15        (7) A provision requiring the contractor to provide the
16    Department with advance notice of any decision that bears
17    significantly on the public interest so the Department has
18    a reasonable opportunity to evaluate and countermand that
19    decision pursuant to this Section;
20        (8) A requirement that the Department monitor and
21    oversee the contractor's practices and take action that the
22    Department considers appropriate to ensure that the
23    contractor is in compliance with the terms of the public
24    private agreement;
25        (9) The authority of the Department to enter into
26    contracts with third parties pursuant to Section 50 of this

 

 

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1    Act;
2        (10) A provision governing the contractor's authority
3    to negotiate and execute subcontracts with third parties;
4        (10.5) (Blank). A provision stating that, in the event
5    the contractor finds it necessary, proper, or desirable to
6    enter into subcontracts with one or more design-build
7    entities, then it must follow a selection process that is,
8    to the greatest extent possible, identical to the selection
9    process contained in the Design-Build Procurement Act;
10        (11) The authority of the contractor to impose user
11    fees and the amounts of those fees, including the authority
12    of the contractor to use congestion pricing, pursuant to
13    which higher tolls rates are imposed during times or in
14    locations of increased congestion;
15        (12) A provision governing the deposit and allocation
16    of revenues including user fees;
17        (13) A provision governing rights to real and personal
18    property of the State, the Department, the contractor, and
19    other third parties;
20        (14) A provision stating that the contractor must,
21    pursuant to Section 75 of this Act, finance an independent
22    audit if the construction costs under the contract exceed
23    $50,000,000;
24        (15) A provision regarding the implementation and
25    delivery of a comprehensive system of internal audits;
26        (16) A provision regarding the implementation and

 

 

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1    delivery of reports, which must include a requirement that
2    the contractor file with the Department, at least on an
3    annual basis, financial statements containing information
4    required by generally accepted accounting principles
5    (GAAP);
6        (17) Procedural requirements for obtaining the prior
7    approval of the Department when rights that are the subject
8    of the agreement, including but not limited to development
9    rights, construction rights, property rights, and rights
10    to certain revenues, are sold, assigned, transferred, or
11    pledged as collateral to secure financing or for any other
12    reason;
13        (18) Grounds for termination of the agreement by the
14    Department or the contractor and a restatement of the
15    Department's rights under Section 35 of this Act;
16        (19) A requirement that the contractor enter into a
17    project labor agreement pursuant to Section 100 of this
18    Act;
19        (19.5) A provision stating that construction
20    contractors shall comply with the requirements of Section
21    30-22 of the Illinois Procurement Code pursuant to Section
22    100 of this Act;
23        (20) Timelines, deadlines, and scheduling;
24        (21) Review of plans, including development,
25    financing, construction, management, or operations plans,
26    by the Department;

 

 

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1        (22) Inspections by the Department, including
2    inspections of construction work and improvements;
3        (23) Rights and remedies of the Department in the event
4    that the contractor defaults or otherwise fails to comply
5    with the terms of the agreement;
6        (24) A code of ethics for the contractor's officers and
7    employees; and
8        (25) Procedures for amendment to the agreement.
9    (b) The public private agreement may include any or all of
10the following:
11        (1) A provision regarding the extension of the
12    agreement that is consistent with Section 15 of this Act;
13        (2) Cash reserves requirements;
14        (3) Delivery of performance and payment bonds or other
15    performance security in a form and amount that is
16    satisfactory to the Department;
17        (4) Maintenance of public liability insurance;
18        (5) Maintenance of self-insurance;
19        (6) Provisions governing grants and loans, pursuant to
20    which the Department may agree to make grants or loans for
21    the development, financing, construction, management, or
22    operation of the Illiana Expressway project from time to
23    time from amounts received from the federal government or
24    any agency or instrumentality of the federal government or
25    from any State or local agency;
26        (7) Reimbursements to the Department for work

 

 

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1    performed and goods, services, and equipment provided by
2    the Department; and
3        (8) All other terms, conditions, and provisions
4    acceptable to the Department that the Department deems
5    necessary and proper and in the public interest.
6(Source: P.A. 96-913, eff. 6-9-10.)
 
7    (605 ILCS 130/80)
8    Sec. 80. Property acquisition. The Department may acquire
9property for the Illiana Expressway project using the powers
10granted to it in the Illinois Highway Code and the Eminent
11Domain Act. The Department may not exercise the power of quick
12take in connection with the Illiana Expressway project.
13(Source: P.A. 96-913, eff. 6-9-10.)
 
14    (605 ILCS 130/95)
15    Sec. 95. Financial arrangements.
16    (a) The Department may apply for, execute, or endorse
17applications submitted by contractors and other third parties
18to obtain federal, State, or local credit assistance to
19develop, finance, maintain, or operate the Illiana Expressway
20project.
21    (b) The Department may take any action to obtain federal,
22State, or local assistance for the Illiana Expressway project
23that serves the public purpose of this Act and may enter into
24any contracts required to receive the federal assistance. The

 

 

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

 

 

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1        (4) accept grants from any public or private agency or
2    entity.
3    (f) For the purpose of financing the Illiana Expressway
4project, public funds may be used and mixed and aggregated with
5funds provided by or on behalf of the contractor or other
6private entities.
7    (g) For the purpose of financing the Illiana Expressway
8project, the Department is authorized to apply for, execute, or
9endorse applications for an allocation of tax-exempt bond
10financing authorization provided by Section 142(m) of the
11United States Internal Revenue Code, as well as financing
12available under any other federal law or program.
13    (h) Any bonds, debt, or other securities or other financing
14issued by or on behalf of a contractor for the purposes of a
15project undertaken pursuant to this Act shall not be deemed to
16constitute a debt of the State or any political subdivision of
17the State or a pledge of the faith and credit of the State or
18any political subdivision of the State.
19(Source: P.A. 96-913, eff. 6-9-10.)
 
20    Section 10. The Eminent Domain Act is amended by changing
21Section 15-5-35 as follows:
 
22    (735 ILCS 30/15-5-35)
23    Sec. 15-5-35. Eminent domain powers in ILCS Chapters 605
24through 625. The following provisions of law may include

 

 

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1express grants of the power to acquire property by condemnation
2or eminent domain:
 
3(605 ILCS 5/4-501); Illinois Highway Code; Department of
4    Transportation and counties; for highway purposes.
5(605 ILCS 5/4-502); Illinois Highway Code; Department of
6    Transportation; for ditches and drains.
7(605 ILCS 5/4-505); Illinois Highway Code; Department of
8    Transportation; for replacement of railroad and public
9    utility property taken for highway purposes.
10(605 ILCS 5/4-509); Illinois Highway Code; Department of
11    Transportation; for replacement of property taken for
12    highway purposes.
13(605 ILCS 5/4-510); Illinois Highway Code; Department of
14    Transportation; for rights-of-way for future highway
15    purposes.
16(605 ILCS 5/4-511); Illinois Highway Code; Department of
17    Transportation; for relocation of structures taken for
18    highway purposes.
19(605 ILCS 5/5-107); Illinois Highway Code; counties; for county
20    highway relocation.
21(605 ILCS 5/5-801); Illinois Highway Code; counties; for
22    highway purposes.
23(605 ILCS 5/5-802); Illinois Highway Code; counties; for
24    ditches and drains.
25(605 ILCS 5/6-309); Illinois Highway Code; highway

 

 

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1    commissioners or county superintendents; for township or
2    road district roads.
3(605 ILCS 5/6-801); Illinois Highway Code; highway
4    commissioners; for road district or township roads.
5(605 ILCS 5/6-802); Illinois Highway Code; highway
6    commissioners; for ditches and drains.
7(605 ILCS 5/8-102); Illinois Highway Code; Department of
8    Transportation, counties, and municipalities; for limiting
9    freeway access.
10(605 ILCS 5/8-103); Illinois Highway Code; Department of
11    Transportation, counties, and municipalities; for freeway
12    purposes.
13(605 ILCS 5/8-106); Illinois Highway Code; Department of
14    Transportation and counties; for relocation of existing
15    crossings for freeway purposes.
16(605 ILCS 5/9-113); Illinois Highway Code; highway
17    authorities; for utility and other uses in rights-of-ways.
18(605 ILCS 5/10-302); Illinois Highway Code; counties; for
19    bridge purposes.
20(605 ILCS 5/10-602); Illinois Highway Code; municipalities;
21    for ferry and bridge purposes.
22(605 ILCS 5/10-702); Illinois Highway Code; municipalities;
23    for bridge purposes.
24(605 ILCS 5/10-901); Illinois Highway Code; Department of
25    Transportation; for ferry property.
26(605 ILCS 10/9); Toll Highway Act; Illinois State Toll Highway

 

 

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1    Authority; for toll highway purposes.
2(605 ILCS 10/9.5); Toll Highway Act; Illinois State Toll
3    Highway Authority; for its authorized purposes.
4(605 ILCS 10/10); Toll Highway Act; Illinois State Toll Highway
5    Authority; for property of a municipality or political
6    subdivision for toll highway purposes.
7(605 ILCS 115/14); Toll Bridge Act; counties; for toll bridge
8    purposes.
9(605 ILCS 115/15); Toll Bridge Act; counties; for the purpose
10    of taking a toll bridge to make it a free bridge.
11    (605 ILCS 130/80); Public Private Agreements for the Illiana
12    Expressway Act; Department of Transportation; for the
13    Illiana Expressway project.
14(610 ILCS 5/17); Railroad Incorporation Act; railroad
15    corporation; for real estate for railroad purposes.
16(610 ILCS 5/18); Railroad Incorporation Act; railroad
17    corporations; for materials for railways.
18(610 ILCS 5/19); Railroad Incorporation Act; railways; for land
19    along highways.
20(610 ILCS 70/1); Railroad Powers Act; purchasers and lessees of
21    railroad companies; for railroad purposes.
22(610 ILCS 115/2 and 115/3); Street Railroad Right of Way Act;
23    street railroad companies; for street railroad purposes.
24(615 ILCS 5/19); Rivers, Lakes, and Streams Act; Department of
25    Natural Resources; for land along public waters for
26    pleasure, recreation, or sport purposes.

 

 

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1(615 ILCS 10/7.8); Illinois Waterway Act; Department of Natural
2    Resources; for waterways and appurtenances.
3(615 ILCS 15/7); Flood Control Act of 1945; Department of
4    Natural Resources; for the purposes of the Act.
5(615 ILCS 30/9); Illinois and Michigan Canal Management Act;
6    Department of Natural Resources; for dams, locks, and
7    improvements.
8(615 ILCS 45/10); Illinois and Michigan Canal Development Act;
9    Department of Natural Resources; for development and
10    management of the canal.
11(620 ILCS 5/72); Illinois Aeronautics Act; Division of
12    Aeronautics of the Department of Transportation; for
13    airport purposes.
14(620 ILCS 5/73); Illinois Aeronautics Act; Division of
15    Aeronautics of the Department of Transportation; for
16    removal of airport hazards.
17(620 ILCS 5/74); Illinois Aeronautics Act; Division of
18    Aeronautics of the Department of Transportation; for
19    airport purposes.
20(620 ILCS 25/33); Airport Zoning Act; Division of Aeronautics
21    of the Department of Transportation; for air rights.
22(620 ILCS 40/2 and 40/3); General County Airport and Landing
23    Field Act; counties; for airport purposes.
24(620 ILCS 40/5); General County Airport and Landing Field Act;
25    counties; for removing hazards.
26(620 ILCS 45/6 and 45/7); County Airport Law of 1943; boards of

 

 

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1    directors of airports and landing fields; for airport and
2    landing field purposes.
3(620 ILCS 50/22 and 50/31); County Airports Act; counties; for
4    airport purposes.
5(620 ILCS 50/24); County Airports Act; counties; for removal of
6    airport hazards.
7(620 ILCS 50/26); County Airports Act; counties; for
8    acquisition of airport protection privileges.
9(620 ILCS 52/15); County Air Corridor Protection Act; counties;
10    for airport zones.
11(620 ILCS 55/1); East St. Louis Airport Act; Department of
12    Transportation; for airport in East St. Louis metropolitan
13    area.
14(620 ILCS 65/15); O'Hare Modernization Act; Chicago; for the
15    O'Hare modernization program, including quick-take power.
16(625 ILCS 5/2-105); Illinois Vehicle Code; Secretary of State;
17    for general purposes.
18(625 ILCS 5/18c-7501); Illinois Vehicle Code; rail carriers;
19    for railroad purposes, including quick-take power.
20(Source: P.A. 94-1055, eff. 1-1-07.)
 
21    Section 99. Effective date. This Act takes effect upon
22becoming law.