Full Text of SB3216 97th General Assembly
SB3216sam001 97TH GENERAL ASSEMBLY | Sen. Heather A. Steans Filed: 3/22/2012
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| 1 | | AMENDMENT TO SENATE BILL 3216
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 3216 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The State Finance Act is amended by adding | 5 | | Section 5.811 as follows: | 6 | | (30 ILCS 105/5.811 new) | 7 | | Sec. 5.811. The Public-Private Partnerships for | 8 | | Transportation Fund. | 9 | | Section 10. The Public-Private Partnerships for | 10 | | Transportation Act is amended by changing Sections 10, 15, 20, | 11 | | 25, 35, 40, and 45 and by adding Section 90 as follows: | 12 | | (630 ILCS 5/10)
| 13 | | Sec. 10. Definitions. As used in this Act: | 14 | | "Approved proposal" means the proposal that is approved by |
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| 1 | | the transportation agency pursuant to subsection (j) (e) of | 2 | | Section 20 of this Act. | 3 | | "Approved proposer" means the private entity whose | 4 | | proposal is the approved proposal. | 5 | | "Authority" means the Illinois State Toll Highway | 6 | | Authority. | 7 | | "Contractor" means a private entity that has entered into a | 8 | | public-private agreement with the transportation agency to | 9 | | provide services to or on behalf of the transportation agency. | 10 | | "Department" means the Illinois Department of | 11 | | Transportation. | 12 | | "Design-build agreement" means the agreement between the | 13 | | selected private entity and the transportation agency under | 14 | | which the selected private entity agrees to furnish design, | 15 | | construction, and related services for a transportation | 16 | | facility under this Act. | 17 | | "Develop" or "development" means to do one or more of the | 18 | | following: plan, design, develop, lease, acquire, install, | 19 | | construct, reconstruct, rehabilitate, extend, or expand. | 20 | | "Maintain" or "maintenance" includes ordinary maintenance, | 21 | | repair, rehabilitation, capital maintenance, maintenance | 22 | | replacement, and any other categories of maintenance that may | 23 | | be designated by the transportation agency. | 24 | | "Metropolitan planning organization" means a metropolitan | 25 | | planning organization designated under 23 U.S.C. Section 134 | 26 | | whose metropolitan planning area boundaries are partially or |
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| 1 | | completely within the State. | 2 | | "Operate" or "operation" means to do one or more of the | 3 | | following: maintain, improve, equip, modify, or otherwise | 4 | | operate. | 5 | | "Private entity" means any combination of one or more | 6 | | individuals, corporations, general partnerships, limited | 7 | | liability companies, limited partnerships, joint ventures, | 8 | | business trusts, nonprofit entities, or other business | 9 | | entities that are parties to a proposal for a transportation | 10 | | project or an agreement related to a transportation project. A | 11 | | public agency may provide services to a contractor as a | 12 | | subcontractor or subconsultant without affecting the private | 13 | | status of the private entity and the ability to enter into a | 14 | | public-private agreement. A transportation agency is not a | 15 | | private entity. | 16 | | "Proposal" means all materials and documents prepared by or | 17 | | on behalf of a private entity relating to the proposed | 18 | | development, financing, or operation of a transportation | 19 | | facility as a transportation project. | 20 | | "Proposer" means a private entity that has submitted a | 21 | | proposal or statement of qualifications for a public-private | 22 | | agreement in response to a request for proposals or a request | 23 | | for qualifications issued by a transportation agency under this | 24 | | Act. | 25 | | "Public-private agreement" means the public-private | 26 | | agreement between the contractor and the transportation agency |
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| 1 | | relating to one or more of the development, financing, or | 2 | | operation of a transportation project that is entered into | 3 | | under this Act. | 4 | | "Request for information" means all materials and | 5 | | documents prepared by or on behalf of the transportation agency | 6 | | to solicit information from private entities with respect to | 7 | | transportation projects. | 8 | | "Request for proposals" means all materials and documents | 9 | | prepared by or on behalf of the transportation agency to | 10 | | solicit proposals from private entities to enter into a | 11 | | public-private agreement. | 12 | | "Request for qualifications" means all materials and | 13 | | documents prepared by or on behalf of the transportation agency | 14 | | to solicit statements of qualification from private entities to | 15 | | enter into a public-private agreement. | 16 | | "Revenues" means all revenues, including any combination | 17 | | of: income; earnings and interest; user fees; lease payments; | 18 | | allocations; federal, State, and local appropriations, grants, | 19 | | loans, lines of credit, and credit guarantees; bond proceeds; | 20 | | equity investments; service payments; or other receipts; | 21 | | arising out of or in connection with a transportation project, | 22 | | including the development, financing, and operation of a | 23 | | transportation project. The term includes money received as | 24 | | grants, loans, lines of credit, credit guarantees, or otherwise | 25 | | in aid of a transportation project from the federal government, | 26 | | the State, a unit of local government, or any agency or |
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| 1 | | instrumentality of the federal government, the State, or a unit | 2 | | of local government. | 3 | | "Shortlist" means the process by which a transportation | 4 | | agency will review, evaluate, and rank statements of | 5 | | qualifications submitted in response to a request for | 6 | | qualifications and then identify the proposers who are eligible | 7 | | to submit a detailed proposal in response to a request for | 8 | | proposals. The identified proposers constitute the shortlist | 9 | | for the transportation project to which the request for | 10 | | proposals relates. | 11 | | "Transportation agency" means (i) the Department or (ii) | 12 | | the Authority. | 13 | | "Transportation facility" means any new or existing road, | 14 | | highway, toll highway, bridge, tunnel, intermodal facility, | 15 | | intercity or high-speed passenger rail, or other | 16 | | transportation facility or infrastructure, excluding airports, | 17 | | under the jurisdiction of the Department or the Authority , | 18 | | except those facilities for the Illiana Expressway . The term | 19 | | "transportation facility" may refer to one or more | 20 | | transportation facilities that are proposed to be developed or | 21 | | operated as part of a single transportation project. | 22 | | "Transportation project" or "project" means any or the | 23 | | combination of the development, financing, or operation with | 24 | | respect to all or a portion of any transportation facility | 25 | | under the jurisdiction of the transportation agency , except | 26 | | those facilities for the Illiana Expressway , undertaken |
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| 1 | | pursuant to this Act. | 2 | | "Unit of local government" has the meaning ascribed to that | 3 | | term in Article VII, Section 1 of the Constitution of the State | 4 | | of Illinois and also means any unit designated as a municipal | 5 | | corporation. | 6 | | "User fees" or "tolls" means the rates, tolls, fees, or | 7 | | other charges imposed by the contractor for use of all or a | 8 | | portion of a transportation project under a public-private | 9 | | agreement.
| 10 | | (Source: P.A. 97-502, eff. 8-23-11.) | 11 | | (630 ILCS 5/15)
| 12 | | Sec. 15. Formation of public-private agreements; project | 13 | | planning. | 14 | | (a) Each transportation agency may exercise the powers | 15 | | granted by this Act to do some or all to develop, finance, and | 16 | | operate any part of one or more transportation projects through | 17 | | public-private agreements with one or more private entities , | 18 | | except for transportation projects for the Illiana Expressway | 19 | | as defined in the Public Private Agreements for the Illiana | 20 | | Expressway Act . The net proceeds , if any, arising out of a | 21 | | transportation project or public-private agreement undertaken | 22 | | by the Department pursuant to this Act shall be deposited into | 23 | | the Public-Private Partnerships for Transportation State | 24 | | Construction Account Fund. The net proceeds arising out of a | 25 | | transportation project or public-private agreement undertaken |
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| 1 | | by the Authority pursuant to this Act shall be deposited into | 2 | | the Illinois State Toll Highway Authority Fund and shall be | 3 | | used only as authorized by Section 23 of the Toll Highway Act. | 4 | | (b) The Authority shall not enter into a public-private | 5 | | agreement involving a lease or other transfer of any toll | 6 | | highway, or portions thereof, under the Authority's | 7 | | jurisdiction which were open to vehicular traffic on the | 8 | | effective date of this Act. The Authority shall not enter into | 9 | | a public-private agreement for the purpose of making roadway | 10 | | improvements, including but not limited to reconstruction, | 11 | | adding lanes, and adding ramps, to any toll highway, or | 12 | | portions thereof, under the Authority's jurisdiction which | 13 | | were open to vehicular traffic on the effective date of this | 14 | | Act. The Authority shall not use any revenue generated by any | 15 | | toll highway, or portions thereof, under the Authority's | 16 | | jurisdiction which were open to vehicular traffic on the | 17 | | effective date of this Act to enter into or provide funding for | 18 | | a public-private agreement. The Authority shall not use any | 19 | | asset, or the proceeds from the sale or lease of any such | 20 | | asset, which was owned by the Authority on the effective date | 21 | | of this Act to enter into or provide funding for a | 22 | | public-private agreement. The Authority may enter into a | 23 | | public-private partnership to develop, finance, and operate | 24 | | new toll highways authorized by the Governor and the General | 25 | | Assembly pursuant to Section 14.1 of the Toll Highway Act, | 26 | | non-highway transportation projects on the toll highway system |
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| 1 | | such as commuter rail or high-speed rail lines, and intelligent | 2 | | transportation infrastructure that will enhance the safety, | 3 | | efficiency, and environmental quality of the toll highway | 4 | | system. The Authority may operate or provide operational | 5 | | services such as toll collection on highways which are | 6 | | developed or financed, or both, through a public-private | 7 | | agreement entered into by another public entity , under an | 8 | | agreement with the public entity or contractor responsible for | 9 | | the transportation project . | 10 | | (c) A contractor has: | 11 | | (1) all powers allowed by law generally to a private | 12 | | entity having the same form of organization as the | 13 | | contractor; and | 14 | | (2) the power to develop, finance, and operate the | 15 | | transportation facility and to impose user fees in | 16 | | connection with the use of the transportation facility, | 17 | | subject to the terms of the public-private agreement. | 18 | | No tolls or user fees may be imposed by the contractor | 19 | | except as set forth in a public-private agreement. | 20 | | (d) Each year, at least 30 days prior to the beginning of | 21 | | the transportation agency's fiscal year, and at other times the | 22 | | transportation agency deems necessary, the Department and the | 23 | | Authority shall submit for review to the General Assembly a | 24 | | description of potential projects that the transportation | 25 | | agency is considering undertaking under this Act. Any | 26 | | submission from the Authority shall indicate which of its |
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| 1 | | potential projects, if any, will involve the proposer operating | 2 | | the transportation facility for a period of one year or more. | 3 | | Prior to the issuance of any request for qualifications or | 4 | | request for proposals with respect to any potential project | 5 | | undertaken by the Department or the Authority pursuant to | 6 | | Section 20 of this Act, the commencement of a procurement | 7 | | process for that particular potential project shall be | 8 | | authorized by joint resolution of the General Assembly. | 9 | | (e) Each year, at least 30 days prior to the beginning of | 10 | | the transportation agency's fiscal year, the transportation | 11 | | agency shall submit a description of potential projects that | 12 | | the transportation agency is considering undertaking under | 13 | | this Act to each county, municipality, and metropolitan | 14 | | planning organization, with respect to each project located | 15 | | within its boundaries. | 16 | | (f) Any project undertaken under this Act shall be subject | 17 | | to all applicable planning requirements otherwise required by | 18 | | law, including land use planning, regional planning, | 19 | | transportation planning, and environmental compliance | 20 | | requirements. | 21 | | (g) Any new transportation facility developed as a project | 22 | | under this Act must be consistent with the regional plan then | 23 | | in existence of any metropolitan planning organization in whose | 24 | | boundaries the project is located.
| 25 | | (h) The transportation agency shall hold one or more public | 26 | | hearings within 30 days of each of its submittals to the |
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| 1 | | General Assembly under subsection (d) of this Section. These | 2 | | public hearings shall address potential projects that the | 3 | | transportation agency submitted to the General Assembly for | 4 | | review under subsection (d). The transportation agency shall | 5 | | publish a notice of the hearing or hearings at least 7 days | 6 | | before a hearing takes place, and shall include the following | 7 | | in the notice: (i) the date, time, and place of the hearing and | 8 | | the address of the transportation agency; (ii) a brief | 9 | | description of the potential projects that the transportation | 10 | | agency is considering undertaking; and (iii) a statement that | 11 | | the public may comment on the potential projects. | 12 | | (Source: P.A. 97-502, eff. 8-23-11.) | 13 | | (630 ILCS 5/20)
| 14 | | Sec. 20. Procurement process. | 15 | | (a) A transportation agency seeking to enter into a | 16 | | public-private partnership with a private entity for the | 17 | | development, finance, and operation of a transportation | 18 | | facility as a transportation project shall determine and set | 19 | | forth the criteria for the selection process. The | 20 | | transportation agency shall use (i) a competitive sealed | 21 | | bidding process, (ii) a competitive sealed proposal process, or | 22 | | (iii) a design-build procurement process in accordance with | 23 | | Section 25 of this Act. Before using one of these processes the | 24 | | transportation agency may use a request for information to | 25 | | obtain information relating to possible public-private |
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| 1 | | partnerships. | 2 | | (b) If a transportation project will require the | 3 | | performance of design work, the transportation agency shall use | 4 | | the shortlist selection process set forth in subsection (g) of | 5 | | this Section to evaluate and shortlist private entities based | 6 | | on qualifications, including but not limited to design | 7 | | qualifications. | 8 | | A request for qualifications, request for proposals, or | 9 | | public-private agreement awarded to a contractor for a | 10 | | transportation project shall require that any subsequent need | 11 | | for architectural, engineering, or land surveying services | 12 | | which arises after the submittal of the request for | 13 | | qualifications or request for proposals or the awarding of the | 14 | | public-private agreement shall be procured by the contractor | 15 | | using a qualifications-based selection process consisting of: | 16 | | (1) the publication of notice of availability of | 17 | | services; | 18 | | (2) a statement of desired qualifications; | 19 | | (3) an evaluation based on the desired qualifications; | 20 | | (4) the development of a shortlist ranking the firms in | 21 | | order of qualifications; and | 22 | | (5) negotiations with the ranked firms for a fair and | 23 | | reasonable fee. | 24 | | Compliance with the Architectural, Engineering, and Land | 25 | | Surveying Qualifications Based Selection Act shall be deemed | 26 | | prima facie compliance with this subsection (b). Every |
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| 1 | | transportation project contract shall include provisions | 2 | | setting forth the requirements of this subsection (b). | 3 | | (c) Prior to commencing a procurement for a transportation | 4 | | project under this Act, the transportation agency shall notify | 5 | | any other applicable public agency, including the Authority, in | 6 | | all cases involving toll facilities where the Department would | 7 | | commence the procurement, of its interest in undertaking the | 8 | | procurement and shall provide the other public agency or | 9 | | agencies with an opportunity to offer to develop and implement | 10 | | the transportation project. The transportation agency shall | 11 | | supply the other public agency or agencies with no less than | 12 | | the same level and type of information concerning the project | 13 | | that the transportation agency would supply to private entities | 14 | | in the procurement, unless that information is not then | 15 | | available, in which case the transportation agency shall supply | 16 | | the other public agency or agencies with the maximum amount of | 17 | | relevant information about the project as is then reasonably | 18 | | available. The transportation agency shall make available to | 19 | | the other public agencies the same subsidies, benefits, | 20 | | concessions, and other consideration that it intends to make | 21 | | available to the private entities in the procurement. | 22 | | The public agencies shall have a maximum period of 60 days | 23 | | to review the information about the proposed transportation | 24 | | project and to respond to the transportation agency in writing | 25 | | to accept or reject the opportunity to develop and implement | 26 | | the transportation project. If a public agency rejects the |
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| 1 | | opportunity during the 60-day period, then the public agency | 2 | | may not participate in the procurement for the proposed | 3 | | transportation project by submitting a proposal of its own. If | 4 | | a public agency fails to accept or reject this opportunity in | 5 | | writing within the 60-day period, it shall be deemed to have | 6 | | rejected the opportunity. | 7 | | If a public agency accepts the opportunity within the | 8 | | 60-day period, then the public agency shall have up to 120 days | 9 | | (or a longer period, if extended by the transportation agency), | 10 | | to (i) submit to the transportation agency a reasonable plan | 11 | | for development of the transportation project; (ii) if | 12 | | applicable, make an offer of reasonable consideration for the | 13 | | opportunity to undertake the transportation project; and (iii) | 14 | | negotiate a mutually acceptable intergovernmental agreement | 15 | | with the transportation agency that facilitates the | 16 | | development of the transportation project and requires that the | 17 | | transportation agency follow its procurement procedures under | 18 | | the Illinois Procurement Code and applicable rules rather than | 19 | | this Act. In considering whether a public agency's plan for | 20 | | developing and implementing the project is reasonable, the | 21 | | transportation agency shall consider the public agency's | 22 | | history of developing and implementing similar projects, the | 23 | | public agency's current capacity to develop and implement the | 24 | | proposed project, the user charges, if any, contemplated by the | 25 | | public agency's plan and how these user charges compare with | 26 | | user charges that would be imposed by a private entity |
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| 1 | | developing and implementing the same project, the project | 2 | | delivery schedule proposed by the public agency, and other | 3 | | reasonable factors that are necessary, including consideration | 4 | | of risks and whether subsidy costs may be reduced, to determine | 5 | | whether development and implementation of the project by the | 6 | | public agency is in the best interest of the people of this | 7 | | State. | 8 | | (d) If the transportation agency rejects or fails to | 9 | | negotiate mutually acceptable terms regarding a public | 10 | | agency's plan for developing and implementing the | 11 | | transportation project during the 120-day period described in | 12 | | subsection (c), then the public agency may not participate in | 13 | | the procurement for the proposed transportation project by | 14 | | submitting a proposal of its own. Following a rejection or | 15 | | failure to reach agreement regarding a public agency's plan, if | 16 | | the transportation agency later proceeds with a procurement in | 17 | | which it materially changes (i) the nature or scope of the | 18 | | project; (ii) any subsidies, benefits, concessions, or other | 19 | | significant project-related considerations made available to | 20 | | the bidders; or (iii) any other terms of the project, as | 21 | | compared to when the transportation agency supplied | 22 | | information about the project to public agencies under | 23 | | subsection (c), then the transportation agency shall give | 24 | | public agencies another opportunity in accordance with | 25 | | subsection (c) to provide proposals for developing and | 26 | | implementing the project. |
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| 1 | | (e) Nothing in this Section 20 requires a transportation | 2 | | agency to go through a procurement process prior to developing | 3 | | and implementing a project through a public agency as described | 4 | | in subsection (c). | 5 | | The selection of professional design firms by a | 6 | | transportation agency or private entity shall comply with the | 7 | | Architectural, Engineering, and Land Surveying Qualifications | 8 | | Based Selection Act or Section 25 of this Act. | 9 | | Nothing in this Act shall preclude a public agency, | 10 | | including the Department or the Authority, from submitting a | 11 | | proposal to develop or operate, or to develop and operate, a | 12 | | transportation facility as a transportation project. The | 13 | | transportation agency shall give a proposal submitted by a | 14 | | public agency equal consideration as it gives proposals | 15 | | submitted by private entities, and, for that purpose, treat the | 16 | | public agency as a private entity. | 17 | | (f) All procurement processes shall incorporate | 18 | | requirements and set forth goals for participation by | 19 | | disadvantaged business enterprises as allowed under State and | 20 | | federal law. | 21 | | (g) (b) The transportation agency shall establish a process | 22 | | to shortlist for prequalification of all potential private | 23 | | entities. The transportation agency shall: (i) provide a public | 24 | | notice of the shortlisting prequalification process for such | 25 | | period as deemed appropriate by the agency; (ii) set forth | 26 | | requirements and evaluation criteria in a request for |
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| 1 | | qualifications order to become prequalified ; (iii) develop a | 2 | | shortlist by determining determine which private entities that | 3 | | have submitted statements of qualification prequalification | 4 | | applications , if any, meet the minimum requirements and best | 5 | | satisfy the evaluation criteria set forth in the request for | 6 | | qualifications ; and (iv) allow only those entities , or groups | 7 | | of entities such as unincorporated joint ventures, that have | 8 | | been shortlisted prequalified to submit proposals or bids. | 9 | | Throughout the procurement period and as necessary following | 10 | | the award of a contract, the The transportation agency shall | 11 | | make publicly available on its website during the request for | 12 | | qualifications period information regarding firms that are | 13 | | prequalified by the transportation agency pursuant to Section | 14 | | 20 of the Architectural, Engineering, and Land Surveying | 15 | | Qualifications Based Selection Act to provide architectural, | 16 | | engineering, and land surveying services . The transportation | 17 | | agencies and shall require private entities to use firms | 18 | | prequalified under this Act to provide architectural, | 19 | | engineering, and land surveying services. Firms identified to | 20 | | provide architectural, engineering, and land surveying | 21 | | services in a statement of qualifications shall be prequalified | 22 | | under the Act to provide the identified services prior to the | 23 | | transportation agency's award of the contract the use of such | 24 | | firms for such services . | 25 | | (h) (c) Competitive sealed bidding requirements: | 26 | | (1) All contracts shall be awarded by competitive |
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| 1 | | sealed bidding except as otherwise provided in subsection | 2 | | (i) (d) of this Section and Section 25 of this Act. | 3 | | (2) An invitation for bids shall be issued and shall | 4 | | include a description of the public-private partnership | 5 | | with a private entity for the development, finance, and | 6 | | operation of a transportation facility as a transportation | 7 | | project, and the material contractual terms and conditions | 8 | | applicable to the procurement. | 9 | | (3) Public notice of the invitation for bids shall be | 10 | | published in the State of Illinois Procurement Bulletin at | 11 | | least 21 days before the date set in the invitation for the | 12 | | opening of bids. | 13 | | (4) Bids shall be opened publicly in the presence of | 14 | | one or more witnesses at the time and place designated in | 15 | | the invitation for bids. The name of each bidder, the | 16 | | amount of each bid, and other relevant information as may | 17 | | be specified by rule shall be recorded. After the award of | 18 | | the contract, the winning bid and the record of each | 19 | | unsuccessful bid shall be open to public inspection. | 20 | | (5) Bids shall be unconditionally accepted without | 21 | | alteration or correction, except as authorized in this Act. | 22 | | Bids shall be evaluated based on the requirements set forth | 23 | | in the invitation for bids, which may include criteria to | 24 | | determine acceptability such as inspection, testing, | 25 | | quality, workmanship, delivery, and suitability for a | 26 | | particular purpose. Those criteria that will affect the bid |
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| 1 | | price and be considered in evaluation for award, such as | 2 | | discounts, transportation costs, and total or life cycle | 3 | | costs, shall be objectively measurable. The invitation for | 4 | | bids shall set forth the evaluation criteria to be used. | 5 | | (6) Correction or withdrawal of inadvertently | 6 | | erroneous bids before or after award, or cancellation of | 7 | | awards of contracts based on bid mistakes, shall be | 8 | | permitted in accordance with rules. After bid opening, no | 9 | | changes in bid prices or other provisions of bids | 10 | | prejudicial to the interest of the State or fair | 11 | | competition shall be permitted. All decisions to permit the | 12 | | correction or withdrawal of bids based on bid mistakes | 13 | | shall be supported by written determination made by the | 14 | | transportation agency. | 15 | | (7) The contract shall be awarded with reasonable | 16 | | promptness by written notice to the lowest responsible and | 17 | | responsive bidder whose bid meets the requirements and | 18 | | criteria set forth in the invitation for bids, except when | 19 | | the transportation agency determines it is not in the best | 20 | | interest of the State and by written explanation determines | 21 | | another bidder shall receive the award. The explanation | 22 | | shall appear in the appropriate volume of the State of | 23 | | Illinois Procurement Bulletin. The written explanation | 24 | | must include: | 25 | | (A) a description of the agency's needs; | 26 | | (B) a determination that the anticipated cost will |
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| 1 | | be fair and reasonable; | 2 | | (C) a listing of all responsible and responsive | 3 | | bidders; and | 4 | | (D) the name of the bidder selected, pricing, and | 5 | | the reasons for selecting that bidder. | 6 | | (8) When it is considered impracticable to initially | 7 | | prepare a purchase description to support an award based on | 8 | | price, an invitation for bids may be issued requesting the | 9 | | submission of unpriced offers to be followed by an | 10 | | invitation for bids limited to those bidders whose offers | 11 | | have been qualified under the criteria set forth in the | 12 | | first solicitation. | 13 | | (i) (d) Competitive sealed proposal requirements: | 14 | | (1) When the transportation agency determines in | 15 | | writing that the use of competitive sealed bidding or | 16 | | design-build procurement is either not practicable or not | 17 | | advantageous to the State, a contract may be entered into | 18 | | by competitive sealed proposals. | 19 | | (2) Proposals shall be solicited through a request for | 20 | | proposals. | 21 | | (3) Public notice of the request for proposals shall be | 22 | | published in the State of Illinois Procurement Bulletin at | 23 | | least 21 days before the date set in the invitation for the | 24 | | opening of proposals. | 25 | | (4) Proposals shall be opened publicly in the presence | 26 | | of one or more witnesses at the time and place designated |
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| 1 | | in the request for proposals, but proposals shall be opened | 2 | | in a manner to avoid disclosure of contents to competing | 3 | | offerors during the process of negotiation. A record of | 4 | | proposals shall be prepared and shall be open for public | 5 | | inspection after contract award. | 6 | | (5) The requests for proposals shall state the relative | 7 | | importance of price and other evaluation factors. | 8 | | Proposals shall be submitted in 2 parts: (i) covering items | 9 | | except price; and (ii) covering price. The first part of | 10 | | all proposals shall be evaluated and ranked independently | 11 | | of the second part of all proposals. | 12 | | (6) As provided in the request for proposals and under | 13 | | any applicable rules, discussions may be conducted with | 14 | | responsible offerors who submit proposals determined to be | 15 | | reasonably susceptible of being selected for award for the | 16 | | purpose of clarifying and assuring full understanding of | 17 | | and responsiveness to the solicitation requirements. Those | 18 | | offerors shall be accorded fair and equal treatment with | 19 | | respect to any opportunity for discussion and revision of | 20 | | proposals. Revisions may be permitted after submission and | 21 | | before award for the purpose of obtaining best and final | 22 | | offers. In conducting discussions there shall be no | 23 | | disclosure of any information derived from proposals | 24 | | submitted by competing offerors. If information is | 25 | | disclosed to any offeror, it shall be provided to all | 26 | | competing offerors. |
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| 1 | | (7) Awards shall be made to the responsible offeror | 2 | | whose proposal is determined in writing to be the most | 3 | | advantageous to the State, taking into consideration price | 4 | | and the evaluation factors set forth in the request for | 5 | | proposals. The contract file shall contain the basis on | 6 | | which the award is made. | 7 | | (j) (e) In the case of a proposal or proposals to the | 8 | | Department or the Authority, the transportation agency shall | 9 | | determine, based on its review and evaluation of the proposal | 10 | | or proposals received in response to the request for proposals, | 11 | | which one or more proposals, if any, best serve the public | 12 | | purpose of this Act and satisfy the criteria set forth in the | 13 | | request for proposals and, with respect to such proposal or | 14 | | proposals, shall: | 15 | | (1) submit the proposal or proposals to the Commission | 16 | | on Government Forecasting and Accountability, which, | 17 | | within 20 days of submission by the transportation agency, | 18 | | shall complete a review of the proposal or proposals and | 19 | | report on the value of the proposal or proposals to the | 20 | | State; | 21 | | (2) hold one or more public hearings on the proposal or | 22 | | proposals, publish notice of the hearing or hearings at | 23 | | least 7 days before the hearing, and include the following | 24 | | in the notice: (i) the date, time, and place of the hearing | 25 | | and the address of the transportation agency, (ii) the | 26 | | subject matter of the hearing, (iii) a description of the |
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| 1 | | agreement to be awarded, (iv) the determination made by the | 2 | | transportation agency that such proposal or proposals best | 3 | | serve the public purpose of this Act and satisfy the | 4 | | criteria set forth in the request for proposals, and (v) | 5 | | that the public may be heard on the proposal or proposals | 6 | | during the public hearing; and | 7 | | (3) determine whether or not to recommend to the | 8 | | Governor that the Governor approve the proposal or | 9 | | proposals. | 10 | | The Governor may approve one or more proposals recommended | 11 | | by the Department or the Authority based upon the review, | 12 | | evaluation, and recommendation of the transportation agency, | 13 | | the review and report of the Commission on Government | 14 | | Forecasting and Accountability, the public hearing, and the | 15 | | best interests of the State. | 16 | | (k) (f) In addition to any other rights under this Act, in | 17 | | connection with any procurement under this Act, the following | 18 | | rights are reserved to each transportation agency: | 19 | | (1) to withdraw a request for information, a request | 20 | | for qualifications, or a request for proposals at any time, | 21 | | and to publish a new request for information, request for | 22 | | qualifications, or request for proposals; | 23 | | (2) to not approve a proposal for any reason; | 24 | | (3) to not award a public-private agreement for any | 25 | | reason; | 26 | | (4) to request clarifications to any statement of |
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| 1 | | information, qualifications, or proposal received, to seek | 2 | | one or more revised proposals or one or more best and final | 3 | | offers, or to conduct negotiations with one or more private | 4 | | entities that have submitted proposals; | 5 | | (5) to modify, during the pendency of a procurement, | 6 | | the terms, provisions, and conditions of a request for | 7 | | information, request for qualifications, or request for | 8 | | proposals or the technical specifications or form of a | 9 | | public-private agreement; | 10 | | (6) to interview proposers; and | 11 | | (7) any other rights available to the transportation | 12 | | agency under applicable law and regulations. | 13 | | (l) (g) If a proposal is approved, the transportation | 14 | | agency shall execute the public-private agreement, publish | 15 | | notice of the execution of the public-private agreement on its | 16 | | website and in a newspaper or newspapers of general circulation | 17 | | within the county or counties in which the transportation | 18 | | project is to be located, and publish the entire agreement on | 19 | | its website. Any action to contest the validity of a | 20 | | public-private agreement entered into under this Act must be | 21 | | brought no later than 60 days after the date of publication of | 22 | | the notice of execution of the public-private agreement. | 23 | | (m) (h) For any transportation project with an estimated | 24 | | construction cost of over $50,000,000, the transportation | 25 | | agency may also require the approved proposer to pay the costs | 26 | | for an independent audit of any and all traffic and cost |
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| 1 | | estimates associated with the approved proposal, as well as a | 2 | | review of all public costs and potential liabilities to which | 3 | | taxpayers could be exposed (including improvements to other | 4 | | transportation facilities that may be needed as a result of the | 5 | | approved proposal, failure by the approved proposer to | 6 | | reimburse the transportation agency for services provided, and | 7 | | potential risk and liability in the event the approved proposer | 8 | | defaults on the public-private agreement or on bonds issued for | 9 | | the project). If required by the transportation agency, this | 10 | | independent audit must be conducted by an independent | 11 | | consultant selected by the transportation agency, and all | 12 | | information from the review must be fully disclosed. | 13 | | (n) (i) The transportation agency may also apply for, | 14 | | execute, or endorse applications submitted by private entities | 15 | | to obtain federal credit assistance for qualifying projects | 16 | | developed or operated pursuant to this Act.
| 17 | | (Source: P.A. 97-502, eff. 8-23-11.) | 18 | | (630 ILCS 5/25)
| 19 | | Sec. 25. Design-build procurement. | 20 | | (a) This Section 25 shall apply only to transportation | 21 | | projects for which the Department or the Authority intends to | 22 | | execute a design-build agreement, in which case the Department | 23 | | or the Authority shall abide by the requirements and procedures | 24 | | of this Section 25 in addition to other applicable requirements | 25 | | and procedures set forth in this Act. |
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| 1 | | (b)(1) The transportation agency must issue a notice of | 2 | | intent to receive proposals for the project at least 14 days | 3 | | before issuing the request for the qualifications. The | 4 | | transportation agency must publish the advance notice in a | 5 | | daily newspaper of general circulation in the county where the | 6 | | transportation agency is located. The transportation agency is | 7 | | encouraged to use publication of the notice in related | 8 | | construction industry service publications. A brief | 9 | | description of the proposed procurement must be included in the | 10 | | notice. The transportation agency must provide a copy of the | 11 | | request for qualifications to any party requesting a copy. | 12 | | (2) The request for qualifications shall be prepared for | 13 | | each project and must contain, without limitation, the | 14 | | following information: (i) the name of the transportation | 15 | | agency; (ii) a preliminary schedule for the completion of the | 16 | | contract; (iii) the proposed budget for the project and , the | 17 | | source of funds, to the extent not already reflected in the | 18 | | Department's Multi-Year Highway Improvement Program and the | 19 | | currently available funds at the time the request for proposal | 20 | | is submitted ; (iv) the shortlisting process prequalification | 21 | | criteria for design-build entities or groups of entities such | 22 | | as unincorporated joint ventures wishing to submit proposals | 23 | | (the transportation agency shall include, at a minimum, its | 24 | | normal prequalification, licensing, registration, and other | 25 | | requirements, but nothing contained herein precludes the use of | 26 | | additional prequalification criteria by the transportation |
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| 1 | | agency); (v) a summary of anticipated material requirements of | 2 | | the contract, including but not limited to, the proposed terms | 3 | | and conditions, required performance and payment bonds, | 4 | | insurance, and the entity's plan to comply with the utilization | 5 | | goals established by the corporate authorities of the | 6 | | transportation agency for minority and women business | 7 | | enterprises and compliance to comply with Section 2-105 of the | 8 | | Illinois Human Rights Act; and (vi) the performance criteria; | 9 | | (vii) the evaluation criteria for each phase of the | 10 | | solicitation; and (viii) the anticipated number of entities | 11 | | that will be shortlisted considered for the request for | 12 | | proposals phase. | 13 | | (3) The transportation agency may include any other | 14 | | relevant information in the request for qualifications that it | 15 | | chooses to supply. The private entity shall be entitled to rely | 16 | | upon the accuracy of this documentation in the development of | 17 | | its statement of qualifications and its proposal only to the | 18 | | extent expressly warranted by the transportation agency . | 19 | | (4) The date that statements of qualifications are due must | 20 | | be at least 21 calendar days after the date of the issuance of | 21 | | the request for qualifications. In the event the cost of the | 22 | | project is estimated to exceed $12,000,000, then the statement | 23 | | of qualifications due date must be at least 28 calendar days | 24 | | after the date of the issuance of the request for | 25 | | qualifications. The transportation agency shall include in the | 26 | | request for proposals a minimum of 30 days to develop the |
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| 1 | | proposals after the selection of entities from the evaluation | 2 | | of the statements of qualifications is completed. | 3 | | (c)(1) The transportation agency shall develop, with the | 4 | | assistance of a licensed design professional, the request for | 5 | | qualifications and the request for proposals, which shall | 6 | | include scope and performance criteria. The scope and | 7 | | performance criteria must be in sufficient detail and contain | 8 | | adequate information to reasonably apprise the private | 9 | | entities of the transportation agency's overall programmatic | 10 | | needs and goals, including criteria and preliminary design | 11 | | plans, general budget parameters, schedule, and delivery | 12 | | requirements. | 13 | | (2) Each request for qualifications and request for | 14 | | proposals shall also include a description of the level of | 15 | | design to be provided in the proposals. This description must | 16 | | include the scope and type of renderings, drawings, and | 17 | | specifications that, at a minimum, will be required by the | 18 | | transportation agency to be produced by the private entities. | 19 | | (3) The scope and performance criteria shall be prepared by | 20 | | a design professional who is an employee of the transportation | 21 | | agency, or the transportation agency may contract with an | 22 | | independent design professional selected under the | 23 | | Architectural, Engineering, and Land Surveying Qualifications | 24 | | Based Selection Act to provide these services. | 25 | | (4) The design professional that prepares the scope and | 26 | | performance criteria is prohibited from participating in any |
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| 1 | | private entity proposal for the project. | 2 | | (d)(1) The transportation agency must use a two phase | 3 | | procedure for the selection of the successful design-build | 4 | | entity. The request for qualifications phase will evaluate and | 5 | | shortlist the private entities based on qualifications, and the | 6 | | request for proposals will evaluate the technical and cost | 7 | | proposals. | 8 | | (2) The transportation agency shall include in the request | 9 | | for qualifications the evaluating factors to be used in the | 10 | | request for qualifications phase. These factors are in addition | 11 | | to any prequalification requirements of private entities that | 12 | | the transportation agency has set forth. Each request for | 13 | | qualifications shall establish the relative importance | 14 | | assigned to each evaluation factor and subfactor , including any | 15 | | weighting of criteria to be employed by the transportation | 16 | | agency. The transportation agency must maintain a record of the | 17 | | evaluation scoring to be disclosed in event of a protest | 18 | | regarding the solicitation. | 19 | | The transportation agency shall include the following | 20 | | criteria in every request for qualifications phase evaluation | 21 | | of private entities: (i) experience of personnel; (ii) | 22 | | successful experience with similar project types; (iii) | 23 | | financial capability; (iv) timeliness of past performance; (v) | 24 | | experience with similarly sized projects; (vi) successful | 25 | | reference checks of the firm; (vii) commitment to assign | 26 | | personnel for the duration of the project and qualifications of |
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| 1 | | the entity's consultants; and (viii) ability or past | 2 | | performance in meeting or exhausting good faith efforts to meet | 3 | | the utilization goals for business enterprises established in | 4 | | the Business Enterprise for Minorities, Females, and Persons | 5 | | with Disabilities Act and in complying with Section 2-105 of | 6 | | the Illinois Human Rights Act. No proposal shall be considered | 7 | | that does not include an entity's plan to comply with the | 8 | | requirements regarding established in the minority and women | 9 | | business enterprises and economically disadvantaged firms | 10 | | established by the corporate authorities of the transportation | 11 | | agency and with Section 2-105 of the Illinois Human Rights Act. | 12 | | The transportation agency may include any additional relevant | 13 | | criteria in the request for qualifications phase that it deems | 14 | | necessary for a proper qualification review. | 15 | | Upon completion of the qualifications evaluation, the | 16 | | transportation agency shall create a shortlist of the most | 17 | | highly qualified private entities. | 18 | | The transportation agency shall notify the entities | 19 | | selected for the shortlist in writing. This notification shall | 20 | | commence the period for the preparation of the request for | 21 | | proposals phase technical and cost evaluations. The | 22 | | transportation agency must allow sufficient time for the | 23 | | shortlist entities to prepare their proposals considering the | 24 | | scope and detail requested by the transportation agency. | 25 | | (3) The transportation agency shall include in the request | 26 | | for proposals the evaluating factors to be used in the |
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| 1 | | technical and cost submission components. Each request for | 2 | | proposals shall establish, for both the technical and cost | 3 | | submission components, the relative importance assigned to | 4 | | each evaluation factor and subfactor , including any weighting | 5 | | of criteria to be employed by the transportation agency. The | 6 | | transportation agency must maintain a record of the evaluation | 7 | | scoring to be disclosed in event of a protest regarding the | 8 | | solicitation. | 9 | | The transportation agency shall include the following | 10 | | criteria in every request for proposals phase technical | 11 | | evaluation of private entities: (i) compliance with objectives | 12 | | of the project; (ii) compliance of proposed services to the | 13 | | request for proposal requirements; (iii) compliance with the | 14 | | request for proposal requirements quality of products or | 15 | | materials proposed; (iv) quality of design parameters; and (v) | 16 | | design concepts ; (vi) innovation in meeting the scope and | 17 | | performance criteria; and (vii) constructability of the | 18 | | proposed project . The transportation agency may include any | 19 | | additional relevant technical evaluation factors it deems | 20 | | necessary for proper selection. | 21 | | The transportation agency shall include the following | 22 | | criteria in every request for proposals phase cost evaluation: | 23 | | the total project cost and the time of completion. The | 24 | | transportation agency may include any additional relevant | 25 | | technical evaluation factors it deems necessary for proper | 26 | | selection. The guaranteed maximum project cost criteria |
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| 1 | | weighing factor shall not exceed 30%. | 2 | | The transportation agency shall directly employ or retain a | 3 | | licensed design professional to evaluate the technical and cost | 4 | | submissions to determine if the technical submissions are in | 5 | | accordance with generally accepted industry standards. | 6 | | (e) Statements of qualifications and proposals must be | 7 | | properly identified and sealed. Statements of qualifications | 8 | | and proposals may not be reviewed until after the deadline for | 9 | | submission has passed as set forth in the request for | 10 | | qualifications or the request for proposals. All private | 11 | | entities submitting statements of qualifications or proposals | 12 | | shall be disclosed after the deadline for submission, and all | 13 | | private entities who are selected for request for proposals | 14 | | phase evaluation shall also be disclosed at the time of that | 15 | | determination. | 16 | | Design-build Phase II design-build proposals shall include | 17 | | a bid bond in the form and security as designated in the | 18 | | request for proposals. Proposals shall also contain a separate | 19 | | sealed envelope with the cost information within the overall | 20 | | proposal submission. Proposals shall include a list of all | 21 | | design professionals and other entities to which any work | 22 | | identified in Section 30-30 of the Illinois Procurement Code as | 23 | | a subdivision of construction work may be subcontracted during | 24 | | the performance of the contract to the extent known at the time | 25 | | of proposal. If the information is not known at the time of | 26 | | proposal, then the design-build agreement shall require the |
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| 1 | | identification prior to a previously unlisted subcontractor | 2 | | commencing work on the transportation project . | 3 | | Statements of qualifications and proposals must meet all | 4 | | material requirements of the request for qualifications or | 5 | | request for proposals, or else they may be rejected as | 6 | | non-responsive. The transportation agency shall have the right | 7 | | to reject any and all statements of qualifications and | 8 | | proposals. | 9 | | The private entity's proprietary intellectual property | 10 | | contained in the drawings and specifications of any | 11 | | unsuccessful statement of qualifications or proposal shall | 12 | | remain the property of the private entity. | 13 | | The transportation agency shall review the statements of | 14 | | qualifications and the proposals for compliance with the | 15 | | performance criteria and evaluation factors. | 16 | | Statements of qualifications and proposals may be | 17 | | withdrawn prior to the due date and time for submissions for | 18 | | any cause. After evaluation begins by the transportation | 19 | | agency, clear and convincing evidence of error is required for | 20 | | withdrawal.
| 21 | | (Source: P.A. 97-502, eff. 8-23-11.) | 22 | | (630 ILCS 5/35)
| 23 | | Sec. 35. Public-private agreements. | 24 | | (a) Unless undertaking actions otherwise permitted in an | 25 | | interim agreement entered into under Section 30 of this Act, |
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| 1 | | before developing, financing, or operating the transportation | 2 | | project, the approved proposer shall enter into a | 3 | | public-private agreement with the transportation agency. | 4 | | Subject to the requirements of this Act, a public-private | 5 | | agreement may provide that the approved proposer, acting on | 6 | | behalf of the transportation agency, is partially or entirely | 7 | | responsible for any combination of developing, financing, or | 8 | | operating the transportation project under terms set forth in | 9 | | the public-private agreement. | 10 | | (b) The public-private agreement may, as determined | 11 | | appropriate by the transportation agency for the particular | 12 | | transportation project, provide for some or all of the | 13 | | following: | 14 | | (1) Development Construction , financing, and operation | 15 | | of the transportation project under terms set forth in the | 16 | | public-private agreement, in any form as deemed | 17 | | appropriate by the transportation agency, including, but | 18 | | not limited to, a long-term concession and lease, a | 19 | | design-bid-build agreement, a design-build agreement, a | 20 | | design-build-maintain agreement, a design-build-finance | 21 | | agreement, a design-build-operate-maintain agreement and a | 22 | | design-build-finance-operate-maintain agreement. | 23 | | (2) Delivery of performance and payment bonds or other | 24 | | performance security determined suitable by the | 25 | | transportation agency, including letters of credit, United | 26 | | States bonds and notes, parent guaranties, and cash |
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| 1 | | collateral, in connection with the development, financing, | 2 | | or operation of the transportation project, in the forms | 3 | | and amounts set forth in the public-private agreement or | 4 | | otherwise determined as satisfactory by the transportation | 5 | | agency to protect the transportation agency and payment | 6 | | bond beneficiaries who have a direct contractual | 7 | | relationship with the contractor or a subcontractor of the | 8 | | contractor to supply labor or material. The payment or | 9 | | performance bond or alternative form of performance | 10 | | security is not required for the portion of a | 11 | | public-private agreement that includes only design, | 12 | | planning, or financing services, the performance of | 13 | | preliminary studies, or the acquisition of real property. | 14 | | (3) Review of plans for any development or operation, | 15 | | or both, of the transportation project by the | 16 | | transportation agency. | 17 | | (4) Inspection of any construction of or improvements | 18 | | to the transportation project by the transportation agency | 19 | | or another entity designated by the transportation agency | 20 | | or under the public-private agreement to ensure that the | 21 | | construction or improvements conform to the standards set | 22 | | forth in the public-private agreement or are otherwise | 23 | | acceptable to the transportation agency. | 24 | | (5) Maintenance of: | 25 | | (A) one or more policies of public liability | 26 | | insurance (copies of which shall be filed with the |
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| 1 | | transportation agency accompanied by proofs of | 2 | | coverage); or | 3 | | (B) self-insurance; | 4 | | each in form and amount as set forth in the public-private | 5 | | agreement or otherwise satisfactory to the transportation | 6 | | agency as reasonably sufficient to insure coverage of tort | 7 | | liability to the public and employees and to enable the | 8 | | continued operation of the transportation project. | 9 | | (6) Where operations are included within the | 10 | | contractor's obligations under the public-private | 11 | | agreement, monitoring of the maintenance practices of the | 12 | | contractor by the transportation agency or another entity | 13 | | designated by the transportation agency or under the | 14 | | public-private agreement and the taking of the actions the | 15 | | transportation agency finds appropriate to ensure that the | 16 | | transportation project is properly maintained. | 17 | | (7) Reimbursement to be paid to the transportation | 18 | | agency as set forth in the public-private agreement for | 19 | | services provided by the transportation agency. | 20 | | (8) Filing of appropriate financial statements and | 21 | | reports as set forth in the public-private agreement or as | 22 | | otherwise in a form acceptable to the transportation agency | 23 | | on a periodic basis. | 24 | | (9) Compensation or payments to the contractor. | 25 | | Compensation or payments may include any or a combination | 26 | | of the following: |
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| 1 | | (A) a base fee and additional fee for project | 2 | | savings as the design-builder of a construction | 3 | | project; | 4 | | (B) a development fee, payable on a lump-sum basis, | 5 | | progress payment basis, time and materials basis, or | 6 | | another basis deemed appropriate by the transportation | 7 | | agency; | 8 | | (C) an operations fee, payable on a lump-sum basis, | 9 | | time and material basis, periodic basis, or another | 10 | | basis deemed appropriate by the transportation agency; | 11 | | (D) some or all of the revenues, if any, arising | 12 | | out of operation of the transportation project; | 13 | | (E) a maximum rate of return on investment or | 14 | | return on equity or a combination of the two; | 15 | | (F) in-kind services, materials, property, | 16 | | equipment, or other items; | 17 | | (G) compensation in the event of any termination; | 18 | | (H) availability payments or similar arrangements | 19 | | whereby payments are made to the contractor pursuant to | 20 | | the terms set forth in the public-private agreement or | 21 | | related agreements; or | 22 | | (I) other compensation set forth in the | 23 | | public-private agreement or otherwise deemed | 24 | | appropriate by the transportation agency. | 25 | | (10) Compensation or payments to the transportation | 26 | | agency, if any. Compensation or payments may include any or |
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| 1 | | a combination of the following: | 2 | | (A) a concession or lease payment or other fee, | 3 | | which may be payable upfront or on a periodic basis or | 4 | | on another basis deemed appropriate by the | 5 | | transportation agency; | 6 | | (B) sharing of revenues, if any, from the operation | 7 | | of the transportation project; | 8 | | (C) sharing of project savings from the | 9 | | construction of the transportation project; | 10 | | (D) payment for any services, materials, | 11 | | equipment, personnel, or other items provided by the | 12 | | transportation agency to the contractor under the | 13 | | public-private agreement or in connection with the | 14 | | transportation project; or | 15 | | (E) other compensation set forth in the | 16 | | public-private agreement or otherwise deemed | 17 | | appropriate by the transportation agency. | 18 | | (11) The date and terms of termination of the | 19 | | contractor's authority and duties under the public-private | 20 | | agreement and the circumstances under which the | 21 | | contractor's authority and duties may be terminated prior | 22 | | to that date. | 23 | | (12) Reversion of the transportation project to the | 24 | | transportation agency at the termination or expiration of | 25 | | the public-private agreement. | 26 | | (13) Rights and remedies of the transportation agency |
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| 1 | | in the event that the contractor defaults or otherwise | 2 | | fails to comply with the terms of the public-private | 3 | | agreement. | 4 | | (14) Procedures for the selection of professional | 5 | | design firms and subcontractors, which shall include | 6 | | procedures consistent with the Architectural, Engineering, | 7 | | and Land Surveying Qualifications Based Selection Act for | 8 | | the selection of professional design firms and may include, | 9 | | in the discretion of the transportation agency, procedures | 10 | | consistent with the low bid procurement procedures | 11 | | outlined in the Illinois Procurement Code for the selection | 12 | | of construction companies. | 13 | | (15) Other terms, conditions, and provisions that the | 14 | | transportation agency believes are in the public interest. | 15 | | (c) The transportation agency may fix and revise the | 16 | | amounts of user fees that a contractor may charge and collect | 17 | | for the use of any part of a transportation project in | 18 | | accordance with the public-private agreement. In fixing the | 19 | | amounts, the transportation agency may establish maximum | 20 | | amounts for the user fees and may provide that the maximums and | 21 | | any increases or decreases of those maximums shall be based | 22 | | upon the indices, methodologies, or other factors the | 23 | | transportation agency considers appropriate. | 24 | | (d) A public-private agreement may: | 25 | | (1) authorize the imposition of tolls in any manner | 26 | | determined appropriate by the transportation agency for |
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| 1 | | the transportation project; | 2 | | (2) authorize the contractor to adjust the user fees | 3 | | for the use of the transportation project, so long as the | 4 | | amounts charged and collected by the contractor do not | 5 | | exceed the maximum amounts established by the | 6 | | transportation agency under the public-private agreement | 7 | | this Act ; | 8 | | (3) provide that any adjustment by the contractor | 9 | | permitted under paragraph (2) of this subsection (d) may be | 10 | | based on the indices, methodologies, or other factors | 11 | | described in the public-private agreement or approved by | 12 | | the transportation agency; | 13 | | (4) authorize the contractor to charge and collect user | 14 | | fees through methods, including, but not limited to, | 15 | | automatic vehicle identification systems, electronic toll | 16 | | collection systems, and, to the extent permitted by law, | 17 | | global positioning system-based, photo-based, or | 18 | | video-based toll collection enforcement, provided that to | 19 | | the maximum extent feasible the contractor will (i) utilize | 20 | | open road tolling methods that allow payment of tolls at | 21 | | highway speeds and (ii) comply with United States | 22 | | Department of Transportation requirements and best | 23 | | practices with respect to tolling methods; and | 24 | | (5) authorize the collection of user fees by a third | 25 | | party. | 26 | | (e) In the public-private agreement, the transportation |
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| 1 | | agency may agree to make grants or loans for the development or | 2 | | operation, or both, of the transportation project from time to | 3 | | time from amounts received from the federal government or any | 4 | | agency or instrumentality of the federal government or from any | 5 | | State or local agency. | 6 | | (f) Upon the termination or expiration of the | 7 | | public-private agreement, including a termination for default, | 8 | | the transportation agency shall have the right to take over the | 9 | | transportation project and to succeed to all of the right, | 10 | | title, and interest in the transportation project , subject to | 11 | | any liens on revenues previously granted by the contractor to | 12 | | any person providing financing for the transportation project . | 13 | | Upon termination or expiration of the public-private agreement | 14 | | relating to a transportation project undertaken by the | 15 | | Department, all real property acquired as a part of the | 16 | | transportation project shall be held in the name of the State | 17 | | of Illinois. Upon termination or expiration of the | 18 | | public-private agreement relating to a transportation project | 19 | | undertaken by the Authority, all real property acquired as a | 20 | | part of the transportation project shall be held in the name of | 21 | | the Authority. | 22 | | (g) If a transportation agency elects to take over a | 23 | | transportation project as provided in subsection (f) of this | 24 | | Section, the transportation agency may do the following: | 25 | | (1) develop, finance, or operate the project, | 26 | | including through a public-private agreement entered into |
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| 1 | | in accordance with this Act; or | 2 | | (2) impose, collect, retain, and use user fees, if any, | 3 | | for the project. | 4 | | (h) If a transportation agency elects to take over a | 5 | | transportation project as provided in subsection (f) of this | 6 | | Section, the transportation agency may use the revenues, if | 7 | | any, for any lawful purpose, including to: | 8 | | (1) make payments to individuals or entities in | 9 | | connection with any financing of the transportation | 10 | | project, including through a public-private agreement | 11 | | entered into in accordance with this Act; | 12 | | (2) permit a contractor to receive some or all of the | 13 | | revenues under a public-private agreement entered into | 14 | | under this Act; | 15 | | (3) pay development costs of the project; | 16 | | (4) pay current operation costs of the project or | 17 | | facilities; | 18 | | (5) pay the contractor for any compensation or payment | 19 | | owing upon termination; and | 20 | | (6) pay for the development, financing, or operation of | 21 | | any other project or projects the transportation agency | 22 | | deems appropriate. | 23 | | (i) The full faith and credit of the State or any political | 24 | | subdivision of the State or the transportation agency is not | 25 | | pledged to secure any financing of the contractor by the | 26 | | election to take over the transportation project. Assumption of |
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| 1 | | development or operation, or both, of the transportation | 2 | | project does not obligate the State or any political | 3 | | subdivision of the State or the transportation agency to pay | 4 | | any obligation of the contractor. | 5 | | (j) The transportation agency may enter into a | 6 | | public-private agreement with multiple approved proposers if | 7 | | the transportation agency determines in writing that it is in | 8 | | the public interest to do so. | 9 | | (k) A public-private agreement shall not include any | 10 | | provision under which the transportation agency agrees to | 11 | | restrict or to provide compensation to the private entity for | 12 | | the construction or operation of a competing transportation | 13 | | facility during the term of the public-private agreement. | 14 | | (l) With respect to a public-private agreement entered into | 15 | | by the Department, the Department shall certify in its State | 16 | | budget request to the Governor each year the amount required by | 17 | | the Department during the next State fiscal year to enable the | 18 | | Department to make any payment obligated to be made by the | 19 | | Department pursuant to that public-private agreement, and the | 20 | | Governor shall include that amount in the State budget | 21 | | submitted to the General Assembly.
| 22 | | (Source: P.A. 97-502, eff. 8-23-11.) | 23 | | (630 ILCS 5/40)
| 24 | | Sec. 40. Development and operations standards for | 25 | | transportation projects. |
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| 1 | | (a) The plans and specifications, if any, for each project | 2 | | developed under this Act must comply with: | 3 | | (1) the transportation agency's standards for other | 4 | | projects of a similar nature or as otherwise provided in | 5 | | the public-private agreement; | 6 | | (2) the Professional Engineering Practice Act of 1989, | 7 | | the Structural Engineering Practice Act of 1989, the | 8 | | Illinois Architecture Practice Act of 1989, the | 9 | | requirements of Section 30-22 of the Illinois Procurement | 10 | | Code as they apply to responsible bidders, and the Illinois | 11 | | Professional Land Surveyor Act of 1989; and | 12 | | (3) any other applicable State or federal standards. | 13 | | (b) Each highway project constructed or operated under this | 14 | | Act is considered to be part of: | 15 | | (1) the State highway system for purposes of | 16 | | identification, maintenance standards, and enforcement of | 17 | | traffic laws if the highway project is under the | 18 | | jurisdiction of the Department; or | 19 | | (2) the toll highway system for purposes of | 20 | | identification, maintenance standards, and enforcement of | 21 | | traffic laws if the highway project is under the | 22 | | jurisdiction of the Authority. | 23 | | (c) Any unit of local government or State agency may enter | 24 | | into agreements with the contractor for maintenance or other | 25 | | services under this Act. | 26 | | (d) Any electronic toll collection system used on a toll |
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| 1 | | highway, bridge, or tunnel as part of a transportation project | 2 | | must be compatible with the electronic toll collection system | 3 | | used by the Authority. The Authority is authorized to | 4 | | construct, operate, and maintain any electronic toll | 5 | | collection system used on a toll highway, bridge, or tunnel as | 6 | | part of a transportation project pursuant to an agreement with | 7 | | the transportation agency or the contractor responsible for the | 8 | | transportation project. All private entities and public | 9 | | agencies shall have an equal opportunity to contract with the | 10 | | Authority to provide construction, operation, and maintenance | 11 | | services. In addition, during the procurement of a | 12 | | public-private agreement, these construction, operation, and | 13 | | maintenance services shall be available under identical terms | 14 | | to each private entity participating in the procurement. To the | 15 | | extent that a public-private agreement or an agreement with a | 16 | | public agency under subsection (c) of Section 20 of this Act | 17 | | authorizes tolling, the transportation agencies and any | 18 | | contractor under a public-private partnership or a public | 19 | | agency under an agreement pursuant to subsection (c) of Section | 20 | | 20 of this Act shall comply with subsection (a-5) of Section 10 | 21 | | of the Toll Highway Act as it relates to toll enforcement.
| 22 | | (Source: P.A. 97-502, eff. 8-23-11.) | 23 | | (630 ILCS 5/45)
| 24 | | Sec. 45. Financial arrangements. | 25 | | (a) The transportation agency may do any combination of |
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| 1 | | applying for, executing, or endorsing applications submitted | 2 | | by private entities to obtain federal, State, or local credit | 3 | | assistance for transportation projects developed, financed, or | 4 | | operated under this Act, including loans, lines of credit, and | 5 | | guarantees. | 6 | | (b) The transportation agency may take any action to obtain | 7 | | federal, State, or local assistance for a transportation | 8 | | project that serves the public purpose of this Act and may | 9 | | enter into any contracts required to receive the federal | 10 | | assistance. The transportation agency may determine that it | 11 | | serves the public purpose of this Act for all or any portion of | 12 | | the costs of a transportation project to be paid, directly or | 13 | | indirectly, from the proceeds of a grant or loan, line of | 14 | | credit, or loan guarantee made by a local, State, or federal | 15 | | government or any agency or instrumentality of a local, State, | 16 | | or federal government. Such assistance may include, but not be | 17 | | limited to, federal credit assistance pursuant to the | 18 | | Transportation Infrastructure Finance and Innovation Act | 19 | | (TIFIA). | 20 | | (c) The transportation agency may agree to make grants or | 21 | | loans for the development, financing, or operation of a | 22 | | transportation project from time to time, from amounts received | 23 | | from the federal, State, or local government or any agency or | 24 | | instrumentality of the federal, State, or local government. | 25 | | (d) Any financing of a transportation project may be in the | 26 | | amounts and upon the terms and conditions that are determined |
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| 1 | | by the parties to the public-private agreement. | 2 | | (e) For the purpose of financing a transportation project, | 3 | | the contractor and the transportation agency may do the | 4 | | following: | 5 | | (1) propose to use any and all revenues that may be | 6 | | available to them; | 7 | | (2) enter into grant agreements; | 8 | | (3) access any other funds available to the | 9 | | transportation agency; and | 10 | | (4) accept grants from the transportation agency or | 11 | | other public or private agency or entity. | 12 | | (f) For the purpose of financing a transportation project, | 13 | | public funds may be used and mixed and aggregated with funds | 14 | | provided by or on behalf of the contractor or other private | 15 | | entities. | 16 | | (g) For the purpose of financing a transportation project, | 17 | | each transportation agency is authorized to do any combination | 18 | | of applying for, executing, or endorsing applications for an | 19 | | allocation of tax-exempt bond financing authorization provided | 20 | | by Section 142(m) of the United States Internal Revenue Code, | 21 | | as well as financing available under any other federal law or | 22 | | program. | 23 | | (h) Any bonds, debt, or other securities or other financing | 24 | | issued by or on behalf of a contractor for the purposes of a | 25 | | project undertaken under this Act shall not be deemed to | 26 | | constitute a debt of the State or any political subdivision of |
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| 1 | | the State or a pledge of the faith and credit of the State or | 2 | | any political subdivision of the State.
| 3 | | (Source: P.A. 97-502, eff. 8-23-11.) | 4 | | (630 ILCS 5/90 new) | 5 | | Sec. 90. Public-Private Partnerships for Transportation | 6 | | Fund. The Public-Private Partnerships for Transportation Fund | 7 | | is created as a special fund in the State treasury. Moneys in | 8 | | the Public-Private Partnerships for Transportation Fund shall | 9 | | be appropriated to the Department of Transportation to promote | 10 | | the development, financing, and operation of transportation | 11 | | facilities under this Act. Investment income which is | 12 | | attributable to the investment of moneys in the Public-Private | 13 | | Partnerships for Transportation Fund shall be retained in the | 14 | | Public-Private Partnerships for Transportation Fund.
| 15 | | Section 99. Effective date. This Act takes effect upon | 16 | | becoming law.".
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