SB1900sam001 102ND GENERAL ASSEMBLY

Sen. John F. Curran

Filed: 2/7/2022

10200SB1900sam001 LRB102 14405 RAM 34318 a

AMENDMENT TO SENATE BILL 1900

AMENDMENT NO. ______. Amend Senate Bill 1900 by replacing everything after the enacting clause with the following:

"Article 1. Purpose; Authority

Section 1-1. Short title. This Act may be cited as the Public-Private Partnerships Act.

Section 1-5. Legislative findings and declarations.

(a) It is hereby found and declared that it is the public policy and the public purpose of the State of Illinois to promote the development, financing, providing of services, and operation of facilities that serve the needs of the public.

(b) It is hereby found and declared that there are inadequate public resources to develop, modernize, refurbish and maintain Illinois public infrastructure and services in a timely and cost-effective manner, and that such need is impeded by existing methods of procurement and funding.

(c) It is hereby found and declared that authorizing private entities to do all or part of the development, planning, design, construction, maintenance, repair, rehabilitation, expansion, financing, and operation of one or more facilities, and provide services, can result in the availability of facilities and services to the public in a more timely, more efficient, or less costly fashion, thereby serving the public safety and welfare. When properly planned and structured, public-private partnerships and unsolicited proposals can help meet such needs by improving the schedule for delivery, lowering cost, and providing additional funding. Obtaining private sector financing using a P3 model leverages resources to meet the demand for new infrastructure and services in the State of Illinois. Pension funds, private investors, developers, contractors and other private entities through a public-private partnership can use long-term financing to invest in public infrastructure and services and further use their private expertise in construction, design-build, management and oversight, project life-cycle planning and other areas of expertise not employed by public entities. Private capital invested in infrastructure and service investments have the potential to generate stable long-term returns while ensuring public infrastructure and services are progressively maintained to benefit Illinois residents. Pension funds and insurance companies seek investments to match their long-term liabilities.

(d) It is hereby found and declared that citizens have a right to transparency and public accountability, including dissemination of information about the public benefits of P3 projects, and open, equitable, transparent, proactive and effective communications with the public achieved through consistent communication activities that recognize the respective contributions of the responsible public entity and the partnering private entity.

(e) It is hereby found and declared that public-private agreements entered into by private entities and responsible public entities under this Act shall allow for:

(1) transparency, oversight, and public information sharing;

(2) compliance with all State of Illinois and federal environmental laws;

(3) fairness for local jurisdictions when negotiating the public-private agreements;

(4) public-sector access to new revenue sources;

(5) new service delivery capacity;

(6) optimal sharing of risk based upon P3 best practice, industry feedback, relevant project precedents and prevailing market conditions;

(7) cost and schedule certainty; and

(8) predicted service quality, performance, innovation and whole-of-life asset management.

Section 1-10. Actions serving a public purpose. Actions pursuant to the Act serve the public purposes of this Act if such actions facilitate the timely development, planning, design, construction, maintenance, repair, rehabilitation, expansion, financing, or operation of a qualifying project.

Section 1-15. Intent of Act. It is the intent of this Act to:

(a) authorize responsible public entities to develop and enter into public-private partnership agreements for qualifying projects which result in the availability of such projects to the public in a timely and less costly fashion, thereby serving the public safety, benefit, and welfare;

(b) permit responsible public entities to receive and consider unsolicited proposals from private sector parties in a manner that eliminates the perception of bias; ensures transparency, fairness, and best value for the responsible public entity; and brings innovative concepts and ideas to benefit responsible public entities;

(c) grant public and private entities the greatest possible flexibility in contracting with each other for the provision of infrastructure and public services;

(d) encourage investment in the State of Illinois by private entities that facilitates services and the development, planning, design, construction, maintenance, repair, rehabilitation, expansion, financing, and operation of facilities;

(e) establish an Infrastructure Investment Commission that focuses on supporting and promoting P3 procurement models and unsolicited proposals that result in the construction, renewal or material enhancement of public services and infrastructure;

(f) provide responsible public entities with:

(i) best-in-class project tools, expertise, and resources to develop predictable procedures for developing P3 projects and unsolicited proposals; and

(ii) a process to submit unsolicited proposals to responsible public entities that protects their proprietary trade information;

(g) provide responsible public entities and private entities with:

(i) clarity on the intake process, evaluation, and procedural aspects of unsolicited proposals; and

(ii) a process that is short and stable resulting in a competitive market and lower costs;

(h) develop a steady flow of P3 projects to benefit both private entities and responsible public entities;

(i) establish transparency and accountability guidelines for P3 projects and unsolicited proposals;

(j) support the use of Illinois design professionals, construction companies, and workers to the greatest extent possible by offering the right to compete for work;

(k) ensure open, equitable, transparent, proactive and effective communication with the public;

(l) improve upon project development due diligence practices;

(m) support the use of local, minority, women business enterprises and economically disadvantaged firms to the greatest extent possible;

(n) create jobs and provide training for those jobs for minorities, women, and veterans to the greatest extent possible;

(o) facilitate and encourage the use of pension funds to develop qualifying projects;

(p) leverage private sector expertise and capital in support of efficient, innovative and timely P3 investments;

(q) serve as a catalyst for the development of public-private Partnerships and unsolicited proposals in the State of Illinois;

(r) authorize public-private agreements that optimally distribute the risk between the private and public-sector partners; and

(s) support economic growth, clean air and water, a healthy environment and stronger communities.

Section 1-20. Construction; authority.

(a) The powers conferred by this Act shall be liberally construed to accomplish their purposes and are in addition and supplemental to the powers conferred by any other law. If any other law or rule is inconsistent with this Act, this Act is controlling as to any public-private agreement and financing of any project subject to a public-private agreement entered into under this Act.

(b) This Act contains full and complete authority for responsible public entities to enter into agreements, financing and leases with private entities to carry out the activities described in this Act. Except as provided in this Act, no procedure, proceeding, publication, notice, consent, approval, order, or act by a responsible public entity or any other State or local government or official is required to enter into an agreement or lease, and no law to the contrary affects, limits, or diminishes the authority for agreements and leases with private entities.

(c) To the extent that this Act permits or requires a responsible public entity or a private entity to carry out or comply with any law other than this Act under a public-private agreement, the action shall be carried out in conformity with this Act.

(d) Each responsible public entity may exercise any powers provided under this Act in participation or cooperation with any governmental entity and enter into any contracts to facilitate that participation or cooperation without compliance with any other statute. Each responsible public entity shall cooperate with each other and with other governmental entities in carrying out qualifying projects under this Act.

(e) A unit of local government may not take any action that would have the effect of impairing a public-private agreement under this Act, except that this Section shall not diminish any existing police power or other power provided by law to a unit of local government.

(f) Notwithstanding any provision of law to the contrary, any public-private agreement entered into under a public-private partnership shall include a provision requiring any employer on the project to enter into a labor peace agreement with any bona fide labor organization representing, or attempting to represent its employees, including employees employed in classifications within the craft jurisdiction, or in classifications called by different names when performing similar duties.

Section 1-25. Definitions. As used in this Act:

"Affected jurisdiction" means the following:

(1) Any county, municipality, township, special district, or unit designated as a unit of local government by law in which all or a part of a qualifying project is located.

(2) Any other public entity directly affected by the qualifying project.

"Authority" means the Illinois State Toll Highway Authority.

"Commercially Confidential Meetings" means bilateral meetings prior to the execution of a project agreement between the responsible public entity and private sector entities, along with their respective advisors, to discuss matters such as the project agreement and proponent's suggested amendments to the project agreement, project design matters, and innovation submissions.

"Contractor" means a private entity that has entered into a public-private agreement with the responsible public entity to provide services to or on behalf of the responsible public entity.

"Department" means the Illinois Department of Transportation.

"Design-build agreement" means the agreement between the selected private entity and the responsible public entity under which the selected private entity agrees to furnish design, construction, and related services for a facility under this Act.

"Develop" or "development" means to do one or more of the following: plan, design, develop, lease, acquire, install, construct, reconstruct, rehabilitate, extend, or expand, or provide any other service.

"Employees employed in classifications within the craft jurisdiction" means all maintenance employees, including, but not limited to, stationary engineers, building engineers, maintenance engineers, maintenance technicians, maintenance mechanics, mechanics, operating engineers, operators, domestic water operators, wastewater operators, water treatment technicians, and other related jobs.

"Facility" means:

(1) a facility or project that serves a public purpose, including, but not limited to, any new or existing local, county or State road, highway, toll highway, bridge, tunnel, intermodal facility; intercity or high-speed passenger rail; rail project or facility; ferry or mass transit facility; vehicle parking facility; regional or local airport; seaport or waterway facility; intelligent-transport system infrastructure or other transportation technology project such as transit priority signaling, fare collection, etc.; or other transportation facility or infrastructure; any administrative facility broadband-related project or facility; correctional institution or facility; disaster mitigation facility; green-energy related project or facility; energy-related project or facility; fuel supply facility, oil or gas pipeline; medical or nursing care facility; recreational facility; tourism facility; solid waste management facility or energy-from-waste facility; sporting or cultural facility; or educational facility or other building or facility that is used or will be used by a public educational institution, or any other public facility or infrastructure or service that is used or will be used by the public at large or in support of an accepted public purpose or activity;

(2) an improvement, including on equipment, of a structure that will be principally used by a public entity or the public at large or that supports a service delivery system in the public sector; or

(3) a sanitation, water, potable water, underground water, wastewater, or surface water facility or other related infrastructure; or infrastructure in support of an accepted public purpose or activity.

"Labor Peace Agreement" means an agreement between a licensee and any bona fide labor organization recognized under the National Labor Relations Act as a bona fide labor organization that, at a minimum, protects the State's proprietary interests by prohibiting labor organizations and members from engaging in picketing, work stoppages, boycotts, and any other economic interference with the applicant's business. This agreement means that the applicant has agreed not to disrupt efforts by the bona fide labor organization to communicate with, and attempt to organize and represent, the applicant's employees. The agreement shall provide a bona fide labor organization access at reasonable times to areas in which the applicant's employees work, for the purpose of meeting with employees to discuss their right to representation, employment rights under State law, and terms and conditions of employment. This type of agreement shall not mandate a particular method of election or certification of the bona fide labor organization.

"Maintain" or "maintenance" includes ordinary maintenance, repair, rehabilitation, capital maintenance, maintenance replacement, and any other categories of maintenance that may be designated by the responsible public entity.

"Operate" or "operation" means to do one or more of the following: maintain, improve, equip, modify, or otherwise operate.

"Private entity" means any combination of one or more individuals, sole proprietorships, private corporations, general partnerships, limited liability companies, limited partnerships, joint ventures, business trusts, nonprofit entities, or other business entities that are non-governmental parties to a proposal for a qualifying project or an agreement related to a qualifying project. A public agency may provide services to a contractor as a subcontractor or subconsultant without affecting the private status of the private entity and the ability to enter into a public-private agreement.

"Project Development Fund" means a fund to assist responsible public entities with public-private partnership projects and unsolicited proposals.

"Project Labor Agreement" means a pre-hire collective bargaining agreement with one or more labor organizations that establishes the terms and conditions of employment for a specific project.

"Proposal" means all materials and documents prepared by or on behalf of a private entity relating to the proposed development, financing, or operation of a facility as a qualifying project.

"Proposer" means a private entity that has submitted an unsolicited proposal for a public-private agreement to a responsible public entity under this Act or submitted a proposal or statement of qualifications for a public-private agreement in response to a request for proposals or a request for qualifications for a project or services issued by a responsible public entity.

"Public-private agreement" means the agreement between the private contractor and the responsible public entity relating to the development, financing, or operation of a qualifying project.

"Public-private partnership" or "P3" means performance-based contractual relationships between one or more private entities and one or more responsible public entities related to one or more qualifying projects.

"Qualifying project" or "Project" means one or more services or projects serving a public purpose that is owned, financed, controlled, or operated by a private entity in whole or in part.

"Request for information" means all materials and documents prepared by or on behalf of a responsible public entity to solicit information from private entities with respect to qualifying projects.

"Request for proposals" means all materials and documents prepared by or on behalf of a responsible public entity to solicit proposals from private entities to enter into a public-private agreement.

"Request for qualifications" means all materials and documents prepared by or on behalf of a responsible public entity to solicit statements of qualification from private entities to enter into a public-private agreement.

"Responsible public entity" means a county, municipality, school district, special district, or any other political subdivision of the State or unit of local government; a public body corporate and politic; or a regional entity that serves a public purpose and is authorized to develop or operate a qualifying project. "Responsible public entity" does not include economic development or tourism partnerships, councils, commissions or entities.

"Revenues" means all revenues, including any combination of income; earnings and interest; user fees; lease payments; allocations; federal, State, and local appropriations, grants, loans, lines of credit, and credit guarantees; bond proceeds; equity investments; service payments; or other receipts, arising out of or in connection with a qualifying project, including the development, financing, and operation of a qualifying project. The term includes money received as grants, loans, lines of credit, credit guarantees, rebates or other forms of aid for a qualifying project from the federal government, the State, a unit of local government, or any agency or instrumentality of the federal government, the State, or a unit of local government.

"Services" means operations, such as, but not limited to parking, cable, broadband, accounting, human resources, health care, data management, and technology.

"Shortlist" means the process by which a responsible public entity reviews, evaluates, and ranks statements of qualifications submitted in response to a request for qualifications and then identifies the proposers who are eligible to submit a detailed proposal in response to a request for proposals. The identified proposers constitute the shortlist for the qualifying project to which the request for proposals relates.

"Unit of local government" has the meaning ascribed to that term in Section 1 of Article VII of the Constitution of the State of Illinois and also means any unit designated as a municipal corporation, or school district.

"Unsolicited Proposal" means a written proposal that is submitted to one or more responsible public entities on the initiative of the private sector entity or entities for the purpose of developing a partnership, and that is not in response to a formal or informal request issued by the responsible public entity or entities.

"User fees" or "tolls" means the rates, fees, or other charges imposed by the contractor for use of all or a portion of a qualifying project under a public-private agreement.

Article 2. Infrastructure Investment Commission

Section 2-1. Establishment. The Governor shall establish the Infrastructure Investment Commission, which shall report to and be funded by the Illinois Finance Authority and shall be independent of other agencies and departments of the State.

Section 2-5. Duties of the Commission. The Commission shall:

(a) assist responsible public entities with identifying projects, including opportunities for project aggregation, for which a public-private partnership may be appropriate;

(b) provide technical assistance and expertise to responsible public entities on using public-private partnerships to develop or operate qualifying projects, including providing assistance with analyzing benefits and costs and information on available innovative financing options;

(c) supply template contracts;

(d) track proposed, ongoing, and completed private-public partnerships;

(e) provide technical assistance in applying for federal funding grants and financing (e.g., Transportation Infrastructure Finance and Innovation Act (TIFIA), TIFIA Lite, TIFIA Rural Project Initiative, Regional Infrastructure Accelerators, Capital Investment Grant, etc.)

(f) identify methods of encouraging competition for the development or operation of qualifying projects;

(g) serve as a liaison to State or federal government officials charged with promoting public-private infrastructure partnerships, State executive directors of other infrastructure investment commissions and regional or metropolitan public-private partnership offices;

(h) conduct public and stakeholder engagement and outreach, including efforts to encourage transparency and information sharing regarding public-private partnerships;

(i) issue regular updates on the future pipeline of P3 projects;

(j) promote best practices, including standardized methodologies and processes;

(k) attract private investment to the State;

(l) develop a project development fund to:

(1) assist responsible public entities with assessing the usefulness of the P3 model and unsolicited proposals for capital procurement and service needs for specific projects;

(2) assist responsible public entities with managing a P3 procurement project or unsolicited proposal;

(3) assist responsible public entities that are not experienced with P3 procurement or unsolicited proposals;

(4) assist responsible public entities that are undertaking new approaches or documenting P3 and unsolicited proposal practices in a way that will assist the Infrastructure Investment Commission and other responsible public entities in future projects;

(5) assist with training costs for key staff of a responsible public entity which is integral to the successful development and implementation of a project;

(6) assist a public entity with P3 procurement or an unsolicited proposal analysis that may include but may not be limited to a market analysis, qualitative assessment report, procurement options analysis, quantitative analysis, risk analysis, implementation strategy, and procurement documents; and

(7) assist with the engagement of external and accredited P3 advisors and analysts; and

(m) approve all expenditures from the project development fund.

Section 2-10. Governance of the Commission.

(a) The Commission shall be headed by a Chairman and a 6-member board of directors.

(b) The board is responsible for the overall governance of the Commission and shall adopt a 5-year corporate plan and annual report. The board shall meet at least quarterly to review the Commission's overall operation, receive committee reports, discuss the Investment Infrastructure Commission's performance and approve expenditures. The board shall review the performance of the Executive Director annually.

(c) The Board of Directors shall establish committees to support the board as needed, including:

(1) an audit committee to oversee the Commission's standards of integrity and behavior; the Commission's reporting of financial information and expenditures of the Project Development Fund; and the Commission's internal control systems, including the Commission's compliance with all applicable legal and regulatory requirements; to review the qualifications, independence and performance of the Commission's external auditors; and to oversee the Commission's enterprise risk management plan; and

(2) a budget committee, which shall develop an annual revenue and expenditure plan, submit the plan to the IFA for approval and funding, and monitor revenues and expenditures during the course of the budget cycle.

Section 2-15. Board Appointments.

(a) The membership of the Commission established pursuant to this Article shall be appointed in accordance with the following:

(1) Seven members shall be appointed by the Governor with the advice and consent of the Senate having expertise, knowledge, or experience in infrastructure development or operation, capital market and finance, public-sector planning, or P3 procurement. No more than 4 members of any one political party may serve as members of the Commission at the same time.

(2) Members of the Commission shall represent to a reasonable extent geographically diverse regions of the State as well as diversity in race, ethnicity, and gender.

(3) Vacancies shall be filled for the unexpired term in the same manner as original appointments. All appointments shall be in writing and filed with the Secretary of State as a public record.

(b) Of the members appointed by the Governor, one such member shall be appointed as chairperson and shall hold office for 4 years from the date of appointment, and until a successor shall be duly appointed and qualified but shall be subject to removal by the Executive Director of the Illinois Finance Authority for incompetency, neglect of duty, or malfeasance.

(c) Of the original members, other than the chairperson, 3 shall hold office for 2 years and 3 shall hold office for 4 years from the date of appointment and until each respective successor is duly appointed and qualified but shall be subject to removal by the Executive Director of the Illinois Finance Authority for incompetency, neglect of duty, or malfeasance. In the case of vacancies in such offices during the recess of the Senate, the Governor shall make a temporary appointment until the next meeting of the Senate when the Governor shall nominate a person to fill such office, and any person so nominated, who is confirmed by the Senate, shall hold office during the remainder of the term and until a successor shall be appointed and qualified. The respective term of the first members appointed shall be designated by the Governor at the time of appointment, but their successors shall each be appointed for a term of 4 years, except that any person appointed to fill a vacancy shall serve only for the unexpired term. Members shall be eligible for reappointment. Members shall serve until their respective successors are duly appointed and qualified.

(d) Each such member shall receive an annual salary of $10,000, or as set by the Compensation Review Board, whichever is greater, payable in monthly installments, and shall be reimbursed for necessary expenses incurred in the performance of duties under this Act.

Section 2-20. Duties of the Chairperson of the Commission. The chairperson shall preside at all meetings of the Commission; shall exercise general supervision over all powers, duties, obligations and functions of the Commission; and shall approve or disapprove all resolutions, bylaws, rules, rates, and regulations made and established by the Commission, and if the chairperson approves, the chairperson shall sign the same, and such as the chairperson shall not approve, the chairperson shall return to the Commission with objections thereto in writing at the next regular meeting of the Commission occurring after the passage thereof. Such veto may extend to any one or more items contained in such resolution, bylaw, rule, rate, or regulation, or to its entirety; and in case the veto extends to a part of such resolution, bylaw, rule, rate, or regulation, the residue thereof shall take effect and be in force, but in case the chairperson shall fail to return any resolution, bylaw, rule, rate, or regulation with objections thereto by the time aforesaid, the chairperson shall be deemed to have approved the same, and the same shall take effect accordingly. Upon the return of any resolution, bylaw, rule, rate, or regulation by the chairperson, the vote by which the same was passed shall be reconsidered by the Commission, and if upon such reconsideration two-thirds of all the members agree by yeas and nays to pass the same, it shall go into effect notwithstanding the chairperson's refusal to approve thereof. The process of approving or disapproving all resolutions, bylaws, rules, rates, and regulations, as well as the ability of the members to override the disapproval of the chairperson, under this Section shall be set forth in the Commission's bylaws. Nothing in the Commission's bylaws, rules, or regulations may be contrary to this Section.

Section 2-25. Duties of the Executive Director of the Commission.

(a) The Executive Director shall be appointed by a majority vote of the Commission.

(b) The Executive Director shall have demonstrated knowledge, training, or experience in 2 or more of the following areas:

(1) infrastructure development or operation;

(2) capital markets and finance, including municipal finance;

(3) public-sector planning; or

(4) P3 procurement.

(c) The Executive Director shall provide to the standing committees of the House and Senate having jurisdiction over services, transportation or infrastructure and post online a report annually within 6 weeks of the end of each fiscal year that:

(1) lists those public-private partnerships that:

(i) are expected to solicit bids within the next fiscal year;

(ii) are in progress;

(iii) were completed during the prior fiscal year; or

(iv) were removed from consideration during the prior fiscal year; and

(2) summarizes actions taken by the Commission to fulfill its duties pursuant to Section 2-5 of this Article.

(d) The Executive Director shall be responsible to the Commission for the proper administration of the affairs of the Commission and policies adopted by the chairperson and members of the Commission.

(e) All employees, as are necessary to the proper functioning of the Commission, shall be appointed by and report to the Executive Director with the consent of the Commission.

(f) The Executive Director shall hold office for 4 years from the date of appointment but shall be subject to removal by the Commission for incompetency, neglect of duty or malfeasance.

(g) The Executive Director shall receive a salary of $15,000 per annum, or as set by a Compensation Review Board, whichever is greater, payable in monthly installments, together with reimbursement for necessary expenses incurred in the performance of the duties of the Executive Director. The Executive Director shall be eligible for reappointment.

Section 2-30. Compliance with State records laws. The Commission shall adhere to the Freedom of Information Act and the State Records Act.

Article 3. Qualification and Process

Section 3-1. Unsolicited proposals.

(a) A responsible public entity may receive unsolicited proposals for a project and may thereafter enter into a public-private agreement with a private entity, or a consortium of private entities, for the building, upgrading, providing of services, operating, ownership, or financing of facilities.

(b) A responsible public entity may consider, evaluate and accept an unsolicited proposal for a public-private partnership project from a private entity if the proposal: (i) is independently developed and drafted by the proposer without responsible public entity supervision; (ii) shows that the proposed project could benefit the people served by the responsible public entity; (iii) includes a financing plan to allow the project to move forward pursuant to the applicable responsible public entity's budget and finance requirements; and (iv) includes sufficient detail and information for the responsible entity to evaluate the proposal in an objective and timely manner and permit a determination of project feasibility and cost-effectiveness.

(c) The unsolicited proposal shall include the following:

(1) an executive summary covering the major elements of the proposal;

(2) a summary of qualifications concerning the experience, expertise, technical competence and qualifications of the private entity, and of each member of its management team and other key employees, consultants and subcontractors, including the name, address and professional designation;

(3) a facilities project description, including, where applicable:

(A) the limits, scope, and location of the proposed project;

(B) right-of-way requirements;

(C) connections with other facilities and improvements to those facilities necessary if the project is developed;

(D) a conceptual project design;

(E) a statement of the project's relationship and impact upon relevant existing plans of the responsible public entity;

(4) a facilities project schedule, including where applicable, estimates of:

(A) dates of contract award;

(B) start of construction;

(C) completion of construction;

(D) start of operations; and

(E) major maintenance or reconstruction activities during the life of the proposed project agreement;

(5) an operating plan describing the operation of a completed facility, if operation of a facility is part of the proposal, describing the management structure and approach, the proposed period of operations, enforcement, emergency response and other relevant information;

(6) a finance plan describing the proposed financing of the project identifying the source of funds to, where applicable, design, construct, maintain and manage the project during the term of the proposed contract;

(7) the legal basis for the project, including verification that a private entity has the licenses and certificates necessary to complete the project.

(d) Within 120 days after receiving an unsolicited proposal, the responsible public entity shall complete a preliminary evaluation of the unsolicited proposal and shall either:

(1) if the preliminary evaluation is unfavorable, return the proposal without further action; or

(2) if the preliminary evaluation is favorable, notify the proposer that the responsible public entity will further evaluate the proposal; or

(3) request amendments, clarification or modification of the unsolicited proposal.

(e)(1) If the responsible public entity chooses to further evaluate an unsolicited proposal with the intent to enter into a public-private agreement for the proposed project, the responsible public entity shall publish notice in a newspaper of general circulation covering the location of the project at least once a week for 2 weeks stating that the responsible public entity has received a proposal and will accept other proposals for the same project. The timeframe within which the responsible public entity may accept other proposals shall be determined by the responsible public entity on a project-by-project basis based upon the complexity of the qualifying project and the public benefit to be gained by allowing a longer or shorter period of time within which other proposals may be received; however, the timeframe for allowing other proposals must be at least 21 days, but no more than 120 days, after the initial date of publication.

(2) A copy of the notice must be mailed to each local government in the affected jurisdiction. The responsible public entity shall provide reasonably sufficient information and the identity of its contact person to enable other private entities to make proposals.

(3) If after no less than 120 days, no counter-proposal is received, or if a counter-proposal is evaluated and found to be equal to or inferior to the original unsolicited proposal, the responsible public entity may proceed to negotiate a contract with the original proposer.

(4) If after no less than 120 days one or more counter-proposals meeting unsolicited proposal standards are received, and if, in the opinion of the responsible public entity, the counter-proposal is evaluated and found to be superior to the original unsolicited proposal, the responsible public entity shall proceed to determine the successful participant through a final procurement phase known as "Best and Final Offer" (BAFO). The responsible public entity shall invite the original private sector party and the proponent submitting the superior counter-proposal to engage in a BAFO phase. The invitation to participate in the BAFO phase will provide to each participating proposer:

(i) the general concepts that were considered superior to the original proposal, while keeping proprietary information contained in the proposals confidential to the extent possible; and

(ii) the pre-established evaluation criteria or the "basis of award" to be used to determine the successful proponent.

(5) Offers received in response to the BAFO invitation will be reviewed by the responsible public entity and scored in accordance with a pre-established criterion, or alternatively, in accordance with the "basis of award" provision identified through the BAFO process.

(6) In all cases, the basis of award will be "best value" to the responsible public entity, as determined by the responsible public entity.

(f) After a comprehensive evaluation and acceptance of an unsolicited proposal and any alternatives, the responsible public entity may commence negotiations with a proposer, considering whether:

(1) the proposal has received a favorable comprehensive evaluation;

(2) the proposal is duplicative of existing infrastructure project or services;

(3) the alternative proposal closely resembles a pending competitive proposal for a public-private partnership or other procurement;

(4) the proposal demonstrates a unique method, approach, or concept;

(5) the facts and circumstances preclude or warrant additional competition;

(6) the State has available any funds, debts, or assets to contribute to the project;

(7) whether the facts and circumstances demonstrate that the project will likely have a significant adverse impact on State bond ratings; and

(8) whether indemnifications included in the proposal are acceptable.

Section 3-5. Competitive public-private partnership procurements.

(a) A responsible public entity may solicit proposals for a qualifying project from private entities.

(b) After the public notification period has expired, the responsible public entity shall rank the proposals received in terms of "best value". In ranking the proposals, the responsible public entity may consider factors that include, but are not limited to, public benefit; minority, women and veteran participation; professional qualifications; general business terms; innovative design techniques or cost-reduction terms; and finance plans. The responsible public entity may then begin negotiations for a public-private agreement with the highest-ranked firm. If the responsible public entity is not satisfied with the results of the negotiations, the responsible public entity may terminate negotiations with the proposer and negotiate with the second-ranked or subsequent-ranked firms, in the order consistent with this procedure. If only one proposal is received, the responsible public entity may negotiate in good faith, and if the responsible public entity is not satisfied with the results of the negotiations, the responsible public entity may terminate negotiations with the proposer.

Section 3-10. Additional rights of responsible public entity. In addition to any other rights under this Act, in connection with any procurement under this Article, the responsible public entity may:

(a) withdraw a request for information, a request for qualifications, or a request for proposals at any time and, in its discretion, publish a new request for qualifications or request for proposals;

(b) decline to approve a proposal;

(c) decline to award a public-private agreement;

(d) request clarifications to any statement of information, qualifications, or proposal received, seek one or more revised proposals or one or more best and final offers, or conduct negotiations with one or more private entities that have submitted proposals;

(e) modify the terms, provisions, and conditions of a request for qualification, request for proposals, technical specifications, or form of public-private agreement during the pendency of a procurement;

(f) interview proposers; and

(g) exercise any other rights available to the responsible public entity under this Act, applicable law, and administrative rule.

Section 3-15. Confidentiality of P3 proposals; disclosure.

(a) Except as provided in paragraph (2) of subsection (e) of Section 3-1, the responsible public entity may not disclose the contents of proposals during discussions or negotiations with potential proposers.

(b) The responsible public entity may, in its discretion in accordance with the Freedom of Information Act, treat as confidential all or some information relating to an unsolicited proposal, including but not limited to discussions or negotiations between the responsible public entity and potential proposers.

(c) Notwithstanding subsections (a) and (b), and with the exception of portions that are confidential under the Freedom of Information Act, the terms of the selected offer negotiated under this Act shall be available for inspection and copying under the Freedom of Information Act after negotiations with the proposers have been completed.

(d) When disclosing the terms of the selected offer under subsection (c), the responsible public entity shall certify that the information being disclosed accurately and completely represents the terms of the selected offer.

(e) The responsible public entity shall disclose the contents of all proposals, except the parts of the proposals that may be treated as exempt in accordance with the Freedom of Information Act, when either:

(1) the request for proposal process is withdrawn under Section 3-10; or

(2) the public-private agreement has been executed and the closing for each financing transaction required to provide funding to carry out the agreement has been conducted.

Section 3-20. Interim agreement. Before or in connection with the negotiation of a public-private agreement, the responsible public entity may enter into an interim agreement with the private entity proposing the development or operation of the qualifying project. An interim agreement is discretionary with the parties. An interim agreement may:

(1) authorize the private entity to commence activities for which it may be compensated related to the proposed qualifying project, including, but not limited to, project planning and development, design, environmental analysis and mitigation, survey, other activities concerning any part of the proposed qualifying project, and ascertaining the availability of financing for the proposed facility or facilities.

(2) establish the process and timing of the negotiation of the public-private agreement.

(3) contain such other provisions related to an aspect of the development or operation of a qualifying project that the responsible public entity and the private entity deem appropriate.

Section 3-25. Payment of stipulated amount for work product of unsuccessful proposer; rights; liability. The responsible public entity may pay a stipulated amount to an unsuccessful proposer that submits a responsive proposal in response to a proposal under this Article, in exchange for the work product contained in that proposal. Upon payment of the stipulated amount, and unless agreed otherwise by the parties:

(1) the responsible public entity and the unsuccessful proposer jointly own the rights to, and may make use of, any work product contained in the proposal, including the technologies, techniques, methods, processes, ideas, and information contained in the proposal, project design, and project financial plan; and

(2) the use by an unsuccessful proposer of any part of the work product contained in the proposal is at the sole risk of the unsuccessful proposer and does not confer liability on the responsible public entity.

Section 3-30. Project awards.

(a) The responsible public entity may perform an independent analysis of the proposed public-private partnership that demonstrates the cost-effectiveness and overall public benefit before the procurement process is initiated or before the contract is awarded.

(b) The responsible public entity may approve the development or operation of a qualifying project, or the design or equipping of a qualifying project that is developed or operated, if:

(1) there is a public need for the qualifying project, or a benefit derived from a project of the type that the private entity proposes as the qualifying project;

(2) the estimated cost of the qualifying project is reasonable in relation to similar facilities;

(3) the private entity's plans will result in the timely acquisition, design, construction, improvement, renovation, expansion, equipping, maintenance, or operation of the qualifying project;

(4) the proposed project or service is in the public's best interest.

(c) The responsible public entity may charge a reasonable fee to cover the costs of processing, reviewing, and evaluating the request, including, but not limited to, reasonable attorney or other professional fees and fees for financial and technical advisors or consultants and for other necessary advisors or consultants.

(d) Upon approval of a qualifying project, the responsible public entity shall establish a date for the commencement of activities related to the qualifying project. The responsible public entity may extend the commencement date.

(e) Approval of a qualifying project by the responsible public entity is subject to entering into a public-private agreement with the private entity.

(f) The responsible public entity shall provide notification to the public of its intent to commence negotiations with a proposer.

(g) Before signing a public-private agreement, the responsible public entity must consider a reasonable funding, financing and affordability plan considering the project cost; revenues by source; available financing; major assumptions; internal rate of return on private investments, if governmental funds are assumed to deliver a cost-feasible project; and a total cash-flow analysis beginning with the implementation of the project and extending for the term of the public-private agreement except no longer than the life of the project or 75 years, whichever is earlier.

(h) If the responsible public entity chooses to evaluate a detailed proposal involving architecture, engineering, or landscape architecture, it may require a professional review and evaluation of the design and construction proposed to ensure material quality standards, interior space use, budget estimates, design and construction schedules, and sustainable design and construction standards.

(i) Each facility project awarded by a responsible public entity shall:

(1) Ensure that provision is made for the private entity's performance and payment of subcontractors, including, but not limited to, surety bonds, letters of credit, parent company guarantees, and lender and equity partner guarantees. Components of the qualifying project that involve construction performance and payment, bonds are subject to the recordation, notice, suit limitation, and other requirements of the Public Construction Bond Act.

(2) Ensure the performance and payment of subcontractors.

(3) Ensure that the public-private agreement addresses termination upon a material default of the public-private agreement.

(4) Pay wages pursuant to prevailing wage standards.

Article 4. Formation of Agreement

Section 4-1. Exercise of powers.

(a) A responsible public entity may exercise the powers granted by this Act to undertake qualifying projects through public-private agreements with one or more private entities.

(b) The Authority may enter into a public-private partnership for qualifying projects on the toll highway system such as commuter rail or high-speed rail lines, and intelligent transportation infrastructure that will enhance the safety, efficiency, and environmental quality of the State highway system. The Authority may operate or provide operational services such as toll collection on highways that are developed or financed, or both, through a public-private agreement entered into by another public entity, under an agreement with the public entity or contractor responsible for the transportation project.

Section 4-5. Powers of contractor; user fees. A contractor has:

(a) all powers allowed by law generally to a private entity having the same form of organization as the contractor; and

(b) the power to develop, own, control, finance, and operate the qualifying project, and to impose and collect user fees, subject to the terms of the public-private agreement. No tolls or user fees may be imposed by the contractor except as set forth in a public-private agreement.

Section 4-10. Powers of contractor; property interests. The contractor may own, lease, or acquire any property interest or other right to develop, finance, or operate the qualifying project, provided the qualifying project retains a public purpose.

Section 4-15. Powers of contractor; user classifications and enforcement of rules. In operating the qualifying project, the contractor may do the following:

(a) make user classifications as permitted in the public-private agreement.

(b) as permitted in the public-private agreement or otherwise with the consent of the responsible public entity, make and enforce reasonable rules to the same extent that the responsible public entity may make and enforce rules with respect to a similar project.

Article 5. Public-Private Agreements

Section 5-1. Provisions of agreement.

(a) Before beginning the development, financing, operation, or any combination of the development, financing, or operation of a qualifying project under this Act, the contractor must enter into a public-private agreement with the responsible public entity. Subject to the other provisions of this Act, the responsible public entity and a private entity may enter into a public-private agreement with respect to a qualifying project. Subject to the requirements of this Act, a public-private agreement may provide that the private entity, acting on behalf of the responsible public entity, is partially or entirely responsible for any combination of developing, financing, or operating the qualifying project.

(b) The public-private agreement must be in writing and may, as determined appropriate by the responsible public entity for the particular qualifying project, provide for some or all of the following:

(1) Development, planning, design, construction, maintenance, repair, rehabilitation, expansion, providing of services, financing, and operation of the qualifying project under terms set forth in the public-private agreement, in any form as deemed appropriate by the responsible public entity, including, but not limited to, a long-term concession or lease, or an agent to build, finance, own, operate, maintain or any one or combination of the same, as applicable and serving a public purpose, a design-bid-build agreement, a design-build agreement, a design-build-maintain agreement, a design-build-finance agreement, a design-build-operate-maintain agreement and a design-build-finance-operate-maintain agreement.

(2) Delivery of performance and payment bonds or other performance security determined suitable by the responsible public entity, including letters of credit, United States bonds and notes, parent guaranties, and cash collateral, in connection with the development, financing, or operation of the qualifying project, in the forms and amounts set forth in the public-private agreement or otherwise determined as satisfactory by the responsible public entity to protect the responsible public entity and payment bond beneficiaries who have a direct contractual relationship with the contractor or a subcontractor of the contractor to supply labor or material. The payment or performance bond or alternative form of performance security is not required for the portion of a public-private agreement that includes only design, planning, or financing services, the performance of preliminary studies, or the acquisition of real property.

(3) Review of plans for any development or operation, or both, of the qualifying project by the responsible public entity.

(4) Inspection of any construction of or improvements to the qualifying project by the responsible public entity or another entity designated by the responsible public entity or under the public-private agreement to ensure that the construction or improvements conform to the standards set forth in the public-private agreement or are otherwise acceptable to the responsible public entity.

(5) Maintenance of (i) one or more policies of public liability insurance, copies of which shall be filed with the responsible public entity accompanied by proofs of coverage or (ii) self-insurance, each of which shall be in the form and amount as set forth by the public-private agreement or otherwise satisfactory to the responsible public entity as reasonably sufficient to insure coverage of tort liability to the public and employees and to enable the continued operation of the qualifying project.

(6) Where operations are included within the contractor's obligations under the public-private agreement, monitoring of the maintenance practices of the contractor by the responsible public entity or another entity designated by the responsible public entity or under the public-private agreement and the taking of the actions the responsible public entity finds appropriate to ensure that the qualifying project is properly maintained.

(7) Reimbursement to be paid to the responsible public entity as set forth in the public-private agreement for services provided by the responsible public entity.

(8) Filing of appropriate financial statements and reports as set forth in the public-private agreement or as otherwise in a form acceptable to the responsible public entity on a periodic basis.

(9) Compensation or payments to the contractor. Compensation or payments may include any or a combination of the following:

(i) a base fee and additional fee for project savings as the design-builder of a construction project;

(ii) a development fee, payable on a lump sum basis, progress payment basis, project milestone basis, time and materials basis, or any other basis considered appropriate by the responsible public entity;

(iii) an operations fee, payable on a lump sum basis, time and material basis, periodic basis, or any other basis considered appropriate by the responsible public entity;

(iv) some or all of the revenues, if any, arising out of operation of the qualifying project;

(v) a maximum rate of return on investment or return on equity or a combination of the 2;

(vi) in-kind services, materials, property, equipment, or other items;

(vii) compensation in the event of any termination;

(viii) availability payments or similar arrangements whereby payments are made to the contractor pursuant to the terms set forth in the public-private agreements or related agreements;

(ix) other compensation set forth in the public-private agreement or otherwise considered appropriate by the responsible public entity.

(10) Compensation or payments to the responsible public entity, if any. Compensation or payments to the responsible public entity may include any one or combination of the following:

(i) a concession or lease payment or other fee, which may be payable upfront or on a periodic basis or on another basis deemed appropriate by the responsible public entity;

(ii) sharing of revenues, if any, from the operation of the qualifying project;

(iii) sharing of project savings from the construction or services of the qualifying project;

(iv) payment for any services, materials, equipment, personnel, or other items provided by the responsible public entity to the contractor under the public-private agreement or in connection with the qualifying project;

(v) other compensation set forth in the public-private agreement or otherwise considered appropriate by the parties.

(11) the date and terms of termination of the contractor's authority and duties under the public-private agreement and the circumstances under which the contractor's authority and duties may be terminated before that date;

(12) the term of a public-private agreement, including all extensions, may not exceed 75 years.

(13) the termination of the public-private agreement, upon which the authority of the contractor under this Act ceases, except for those duties and obligations that extend beyond the termination, as set forth in the public-private agreement, and upon which all interests in the qualifying project shall revert to the responsible public entity;

(14) rights and remedies of the responsible public entity if the contractor defaults or otherwise fails to comply with the terms of the public-private agreement;

(15) procedures for the selection of professional design firms and subcontractors, which shall include procedures consistent with the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act for the selection of professional design firms and may include, in the discretion of the responsible public entity, procedures consistent with the low bid procurement procedures outlined in the Illinois Procurement Code for the selection of construction companies;

(16) other terms, conditions, and provisions that the responsible public entity finds are in the public's interest.

(c) A project labor agreement shall be required by all private entities performing construction of public infrastructure for qualifying projects.

Section 5-5. Additional requirements.

(a) The responsible public entity may fix the amounts of user fees that a contractor may charge and collect for the use of any part of a qualifying project in accordance with the public-private agreement. In fixing the amounts, the responsible public entity may establish amounts for the user fees and may provide that any increases or decreases of those fees shall be based upon the indices, methodologies, or other factors the responsible public entity considers appropriate.

(b) A public-private agreement may:

(1) authorize the imposition of tolls;

(2) authorize the contractor to adjust the user fees for the use of the qualifying project, so long as the amounts charged and collected by the contractor do not exceed amounts established by the responsible public entity under the public-private agreement;

(3) provide that any adjustment by the contractor permitted under paragraph (2) may be based on the indices, methodologies, or other factors described in the public-private agreement;

(4) authorize the contractor to charge and collect user fees through methods, including, but not limited to, automatic vehicle identification systems, electronic toll collection systems, and, to the extent permitted by law, global positioning system-based, photo-based, or video-based toll collection enforcement, if, to the maximum extent feasible, the contractor will (i) use open road tolling methods that allow payment of tolls at highway speeds and (ii) comply with United States Department of Transportation requirements and best practices with respect to tolling methods; and

(5) authorize the collection of user fees by a third party.

Section 5-10. Loans for qualifying project. In the public-private agreement, the responsible public entity may agree to make loans for the development or operation, or both, of the qualifying project from time to time from amounts received from the federal government or any agency or instrumentality of the federal government or from any State or local agency. No loan shall extend beyond the life of the qualifying project as the parties determine.

Section 5-15. Terms and conditions in agreement. The public-private agreement must incorporate the duties of the contractor under this Act and may contain the other terms and conditions that the responsible public entity determines serve the public purpose of this Act. The public-private agreement may contain provisions under which the responsible public entity agrees to provide notice of default and cure rights for the benefit of the contractor and the persons or entities described in the public-private agreement that are providing financing for the qualifying project. The public-private agreement may contain any other lawful term or condition to which the contractor and the responsible public entity mutually agree, including provisions regarding change orders, dispute resolution, required upgrades to the qualifying project, tolling policies, changes and modifications to the qualifying project, unavoidable delays, or provisions for a loan or grant of public funds for the development or operation, or both, of one or more qualifying projects.

Section 5-20. Responsible public entity takeover of qualifying project after termination or expiration.

(a) Upon the termination or expiration of the public-private agreement, including a termination for default, the responsible public entity shall have the right to take over the qualifying project, and all of the right, title, and interest in the qualifying project and all real property acquired as a part of the project shall be held in the name of the responsible public entity.

(b) If a responsible public entity elects to take over a qualifying project as provided in subsection (a), the responsible public entity may do the following:

(1) develop, finance, or operate the project, including through a public-private agreement entered in accordance with this Act;

(2) impose, collect, retain, and use user fees, if any, for the project.

(c) If a responsible public entity elects to take over a qualifying project as provided in subsection (a), the responsible public entity may use the revenues, if any, for any lawful purpose, including to:

(1) make payments to individuals or entities in connection with any financing of the qualifying project, including through a public-private agreement entered into in accordance with this Act;

(2) permit a contractor to receive some or all of the revenues under a public-private agreement entered into under this Act;

(3) pay development costs of the project;

(4) pay current operation costs of the project or facilities;

(5) pay the contractor for any compensation or payment owing upon termination;

(6) pay for the development, financing, or operation of any other project or projects the responsible public entity deems appropriate.

(d) The full faith and credit of the State or any political subdivision of the State or the responsible public entity is not pledged to secure any financing of the contractor by the election to take over the qualifying project. Assumption of development or operation, or both, of the qualifying project does not obligate the State or any political subdivision of the State or the responsible public entity to pay any obligation of the contractor.

Section 5-25. Changes added by written amendment. Any changes in the terms of the public-private agreement agreed to by the parties shall be added to the public-private agreement by written amendment.

Section 5-30. Agreements with multiple private entities. Notwithstanding any other provision of this Act, the responsible public entity may enter into a public-private agreement with multiple private entities if the responsible public entity determines in writing that it is in the public interest to do so.

Section 5-35. Agreement provisions for qualifying project. The public-private agreement may provide for all or part of the development, financing, or operation of phases or segments of the qualifying project.

Article 6. Development and Operations Standards for Projects

Section 6-1. Standards of compliance for plans and specifications. The plans and specifications, if any, for each project developed under this Act must comply with:

(1) the responsible public entity's standards for other projects of a similar nature or as otherwise provided in the public-private agreement;

(2) the Professional Engineering Practice Act of 1989, the Structural Engineering Practice Act of 1989, the Illinois Architecture Practice Act of 1989, the requirements of Section 30-22 of the Illinois Procurement Code as applicable to responsible bidders, and the Illinois Professional Land Surveyor Act of 1989; and

(3) any other applicable State or federal standards.

Section 6-5. Highway projects; jurisdiction. Each highway project constructed or operated under this Act is considered to be part of:

(1) the State highway system for purposes of identification, maintenance standards, and enforcement of traffic laws if the highway project is under the jurisdiction of the Department;

(2) the toll highway system for purposes of identification, maintenance standards, and enforcement of traffic laws if the highway project is under the jurisdiction of the Authority; or

(3) a country or municipal road system for purposes of identification, maintenance standards and enforcement of traffic laws if the highway or road project is under the jurisdiction of a county or municipality.

Section 6-10. Service agreements. Any unit of local government or State agency may enter into agreements with the contractor for maintenance or other services under this Act.

Section 6-15. Cooperation with federal and local agencies. The responsible public entity shall seek the cooperation of federal and local agencies to expedite all necessary federal and local permits, licenses, and approvals necessary for projects under this Act.

Article 7. Taxation of Contractors

Section 7-1. Exemptions from property taxes. A project under this Act and tangible personal property used exclusively in connection with a project that are (a) owned by the responsible public entity and leased, licensed, financed, or otherwise conveyed to a contractor or (b) acquired, constructed, or otherwise provided by a contractor on behalf of the responsible public entity under the terms of a public-private agreement are considered to be public property devoted to an essential public and governmental function and purpose. The property, and a contractor's leasehold estate or interests in the property, are exempt from all ad valorem property taxes and special assessments levied against property by the State or any political subdivision of the State.

Section 7-5. Exemptions from retail and use taxes. A contractor or any other person purchasing tangible personal property for incorporation into or improvement of a structure or facility constituting or becoming part of the land included in a project is entitled to the exemption from retail tax and use tax provided under the Retailers' Occupation Tax Act and Use Tax Act, respectively, with respect to that tangible personal property.

Section 7-10. Taxation of income. Income received by a contractor under the terms of a public-private agreement is subject to taxation in the same manner as income received by other private entities.

Article 8. Financial Arrangements

Section 8-1. Actions to obtain credit assistance. The responsible public entity may do any combination of applying for, executing, or endorsing applications submitted by private entities to obtain federal, State, or local credit assistance for qualifying projects developed, financed, or operated under this Act, including loans, lines of credit, and guarantees.

Section 8-5. Actions to obtain assistance. The responsible public entity may take any action to obtain federal, State, or local assistance for a qualifying project that serves the public purpose of this Act and may enter into any contracts required to receive federal assistance. The responsible public entity may determine that it serves the public purpose of this Act for all or any portion of the costs of a qualifying project to be paid, directly or indirectly, from the proceeds of a grant or loan, line of credit, or loan guarantee made by a local, State, or federal government or any agency or instrumentality of a local, State, or federal government. Such assistance may include, but not be limited to, federal credit assistance pursuant to the Transportation Infrastructure Finance and Innovation Act and the Water Infrastructure and Finance and Innovation Act.

Section 8-10. Grants or loans from amounts received from governments. The responsible public entity may agree to make grants or loans for the development, financing, or operation of a qualifying project from time to time, from amounts received from the federal, State, or local government or any agency or instrumentality of the federal, State, or local government.

Section 8-15. Terms and conditions of financing. Any financing of a qualifying project may be in the amounts for the term, and upon other terms and conditions that are determined by the parties to the public-private agreement, and the financing shall not exceed the life of the qualifying project, not to exceed 75 years.

Section 8-20. General powers for the purpose of financing. For the purpose of financing a qualifying project, the contractor and the responsible public entity may do the following:

(1) propose to use any and all of the revenues generated by a qualifying project to pay principal, interest, costs of operation and maintenance of a qualifying project;

(2) enter into grant agreements;

(3) access any other funds for design, construction, operation or maintenance of a qualifying project available to the responsible public entity or private entity, including public or private pension funds;

(4) accept grants from the responsible public entity or other public or private agency or entity;

(5) enter into a lease with a private entity for a qualifying project and may lease a qualifying project to a contractor under a public-private agreement;

(6) pay lease rentals for leases that the responsible public entity has entered into under this Act that secure bonds or debts issued or approved under this Article from any legally available revenues, including:

(A) payments received from a contractor;

(B) federal highway revenues;

(C) distributions from the State highway fund; and

(D) other funds available to the responsible public entity for such purpose.

Section 8-25. Debt.

(a) For the purpose of financing a qualifying project, the responsible public entity may by resolution borrow money and enter into agreements, leases, contracts or subleases with a private entity, and do the following:

(i) issue, sell, and refund bonds, notes of the responsible public entity, debt, or other debt obligations;

(ii) enter into loan agreements or other credit facilities; and

(iii) secure any financing with a pledge of revenues, security interest in, or lien on all or part of a property subject to the agreement, including all of the party's property interests in the qualifying project.

(b) Any term of such debt shall not exceed the earlier of the term of the public-private agreement, the life of the qualifying project, or 75 years.

(c) The bonds, notes and other forms of debt issued under this Article:

(i) constitute the corporate obligations of the responsible public entity;

(ii) do not constitute an indebtedness of the State within the meaning or application of any constitutional provision or limitation; and

(iii) are payable solely as to both principal and interest and other associated fees from:

(1) the revenues from a lease to the responsible public entity, if any;

(2) proceeds of bonds or notes, if any;

(3) investment earnings on proceeds of bonds or notes; or

(4) other funds available to the responsible public entity for such purpose.

Section 8-30. Use of public funds for financing. For the purpose of financing a qualifying project, public funds, including public or private pension funds, may be used and aggregated with funds provided by or on behalf of the contractor or other private entities. The use of public funds to finance all or a portion of qualifying projects authorized under this Article constitutes authorized investments as provided in Section 2 of the Public Funds Investment Act.

Section 8-35. Private activity bonds for purpose of financing. For the purpose of financing a qualifying project, a responsible public entity is authorized to do any combination of applying for, executing, or endorsing applications for an allocation of tax-exempt bond financing authorization provided by the United States Internal Revenue Code, as well as financing available under any other federal law or program.

Section 8-40. Characterization of financing. Any bonds, debt, or other securities or other financing issued by or on behalf of a contractor for the purposes of a project undertaken under this Act shall not be deemed to constitute a debt of the responsible public entity, the State, or any political subdivision of the State or a pledge of the faith and credit of the responsible public entity, the State, or any political subdivision of the State, for purposes of debt limitation.

Article 9. Acquisition of Property

Section 9-1. General. The responsible public entity may exercise any power of condemnation or eminent domain, including quick-take powers, that it has under law, for the purpose of acquiring any lands or estates or interests in land for a qualifying project to the extent provided in the public-private agreement or otherwise to the extent that the responsible public entity finds that the action serves the public purpose of this Act and deems it appropriate in the exercise of its powers under this Act.

Section 9-5. Entering into grants of property interests. The responsible public entity and a private entity may enter into the leases, licenses, easements, and other grants of property that the responsible public entity determines necessary to carry out this Act.

Article 10. Law Enforcement

Section 10-1. Powers and jurisdiction within limits of qualifying project.

(a) All law enforcement officers of the State and of each affected jurisdiction have the same powers and jurisdiction within the limits of the qualifying project as they have in their respective areas of jurisdiction.

(b) Law enforcement officers shall have access to the qualifying project at any time for the purpose of exercising their powers and jurisdiction.

Section 10-5. Application of traffic and motor vehicle laws; punishment for infractions.

(a) The traffic and motor vehicle laws of the State of Illinois or, if applicable, any local jurisdiction shall be the same as those applying to conduct on similar projects in the State of Illinois or the local jurisdiction.

(b) Punishment for infractions and offenses shall be as prescribed by law for conduct occurring on similar projects in the State of Illinois or the local jurisdiction.

Section 10-10. Law enforcement assistance.

(a) Each responsible public entity may enter into an agreement between and among the private entity, the responsible public entity, and the Illinois State Police or other appropriate policing authority where the project is located concerning the provision of law enforcement assistance with respect to a qualifying project that is the subject of a public-private agreement under this Act.

(b) Each responsible public entity is authorized to enter into arrangements with the appropriate policing unit related to costs incurred in providing law enforcement assistance under this Act.

Article 11. Additional Powers of Responsible Public Entity

with Respect to Qualifying Projects

Section 11-5. Contracts and agreements necessary to performance of duties and execution of powers. Each responsible public entity may make and enter into all contracts and agreements necessary or incidental to the performance of the responsible public entity's duties and the execution of the responsible public entity's powers under this Act. Except as otherwise required by law, these contracts or agreements are not subject to any appropriation or approvals other than the approval of the responsible public entity and may be for any term of years and contain any terms that are considered reasonable by the responsible public entity.

Section 11-10. Payment of costs. A responsible public entity may pay the costs incurred under a public-private agreement entered into under this Act from any funds available to the responsible public entity under this Act or any other statute.

Section 11-15. Action that would impair agreement prohibited. A responsible public entity or other State or local government may not take any action that would impair a public-private agreement entered into under this Act.

Article 90. Amendatory Changes

Section 90-5. The Freedom of Information Act is amended by changing Section 7.5 as follows:

(5 ILCS 140/7.5)

Sec. 7.5. Statutory exemptions. To the extent provided for by the statutes referenced below, the following shall be exempt from inspection and copying:

(a) All information determined to be confidential under Section 4002 of the Technology Advancement and Development Act.

(b) Library circulation and order records identifying library users with specific materials under the Library Records Confidentiality Act.

(c) Applications, related documents, and medical records received by the Experimental Organ Transplantation Procedures Board and any and all documents or other records prepared by the Experimental Organ Transplantation Procedures Board or its staff relating to applications it has received.

(d) Information and records held by the Department of Public Health and its authorized representatives relating to known or suspected cases of sexually transmissible disease or any information the disclosure of which is restricted under the Illinois Sexually Transmissible Disease Control Act.

(e) Information the disclosure of which is exempted under Section 30 of the Radon Industry Licensing Act.

(f) Firm performance evaluations under Section 55 of the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act.

(g) Information the disclosure of which is restricted and exempted under Section 50 of the Illinois Prepaid Tuition Act.

(h) Information the disclosure of which is exempted under the State Officials and Employees Ethics Act, and records of any lawfully created State or local inspector general's office that would be exempt if created or obtained by an Executive Inspector General's office under that Act.

(i) Information contained in a local emergency energy plan submitted to a municipality in accordance with a local emergency energy plan ordinance that is adopted under Section 11-21.5-5 of the Illinois Municipal Code.

(j) Information and data concerning the distribution of surcharge moneys collected and remitted by carriers under the Emergency Telephone System Act.

(k) Law enforcement officer identification information or driver identification information compiled by a law enforcement agency or the Department of Transportation under Section 11-212 of the Illinois Vehicle Code.

(l) Records and information provided to a residential health care facility resident sexual assault and death review team or the Executive Council under the Abuse Prevention Review Team Act.

(m) Information provided to the predatory lending database created pursuant to Article 3 of the Residential Real Property Disclosure Act, except to the extent authorized under that Article.

(n) Defense budgets and petitions for certification of compensation and expenses for court appointed trial counsel as provided under Sections 10 and 15 of the Capital Crimes Litigation Act. This subsection (n) shall apply until the conclusion of the trial of the case, even if the prosecution chooses not to pursue the death penalty prior to trial or sentencing.

(o) Information that is prohibited from being disclosed under Section 4 of the Illinois Health and Hazardous Substances Registry Act.

(p) Security portions of system safety program plans, investigation reports, surveys, schedules, lists, data, or information compiled, collected, or prepared by or for the Department of Transportation under Sections 2705-300 and 2705-616 of the Department of Transportation Law of the Civil Administrative Code of Illinois, the Regional Transportation Authority under Section 2.11 of the Regional Transportation Authority Act, or the St. Clair County Transit District under the Bi-State Transit Safety Act.

(q) Information prohibited from being disclosed by the Personnel Record Review Act.

(r) Information prohibited from being disclosed by the Illinois School Student Records Act.

(s) Information the disclosure of which is restricted under Section 5-108 of the Public Utilities Act.

(t) All identified or deidentified health information in the form of health data or medical records contained in, stored in, submitted to, transferred by, or released from the Illinois Health Information Exchange, and identified or deidentified health information in the form of health data and medical records of the Illinois Health Information Exchange in the possession of the Illinois Health Information Exchange Office due to its administration of the Illinois Health Information Exchange. The terms "identified" and "deidentified" shall be given the same meaning as in the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191, or any subsequent amendments thereto, and any regulations promulgated thereunder.

(u) Records and information provided to an independent team of experts under the Developmental Disability and Mental Health Safety Act (also known as Brian's Law).

(v) Names and information of people who have applied for or received Firearm Owner's Identification Cards under the Firearm Owners Identification Card Act or applied for or received a concealed carry license under the Firearm Concealed Carry Act, unless otherwise authorized by the Firearm Concealed Carry Act; and databases under the Firearm Concealed Carry Act, records of the Concealed Carry Licensing Review Board under the Firearm Concealed Carry Act, and law enforcement agency objections under the Firearm Concealed Carry Act.

(v-5) Records of the Firearm Owner's Identification Card Review Board that are exempted from disclosure under Section 10 of the Firearm Owners Identification Card Act.

(w) Personally identifiable information which is exempted from disclosure under subsection (g) of Section 19.1 of the Toll Highway Act.

(x) Information which is exempted from disclosure under Section 5-1014.3 of the Counties Code or Section 8-11-21 of the Illinois Municipal Code.

(y) Confidential information under the Adult Protective Services Act and its predecessor enabling statute, the Elder Abuse and Neglect Act, including information about the identity and administrative finding against any caregiver of a verified and substantiated decision of abuse, neglect, or financial exploitation of an eligible adult maintained in the Registry established under Section 7.5 of the Adult Protective Services Act.

(z) Records and information provided to a fatality review team or the Illinois Fatality Review Team Advisory Council under Section 15 of the Adult Protective Services Act.

(aa) Information which is exempted from disclosure under Section 2.37 of the Wildlife Code.

(bb) Information which is or was prohibited from disclosure by the Juvenile Court Act of 1987.

(cc) Recordings made under the Law Enforcement Officer-Worn Body Camera Act, except to the extent authorized under that Act.

(dd) Information that is prohibited from being disclosed under Section 45 of the Condominium and Common Interest Community Ombudsperson Act.

(ee) Information that is exempted from disclosure under Section 30.1 of the Pharmacy Practice Act.

(ff) Information that is exempted from disclosure under the Revised Uniform Unclaimed Property Act.

(gg) Information that is prohibited from being disclosed under Section 7-603.5 of the Illinois Vehicle Code.

(hh) Records that are exempt from disclosure under Section 1A-16.7 of the Election Code.

(ii) Information which is exempted from disclosure under Section 2505-800 of the Department of Revenue Law of the Civil Administrative Code of Illinois.

(jj) Information and reports that are required to be submitted to the Department of Labor by registering day and temporary labor service agencies but are exempt from disclosure under subsection (a-1) of Section 45 of the Day and Temporary Labor Services Act.

(kk) Information prohibited from disclosure under the Seizure and Forfeiture Reporting Act.

(ll) Information the disclosure of which is restricted and exempted under Section 5-30.8 of the Illinois Public Aid Code.

(mm) Records that are exempt from disclosure under Section 4.2 of the Crime Victims Compensation Act.

(nn) Information that is exempt from disclosure under Section 70 of the Higher Education Student Assistance Act.

(oo) Communications, notes, records, and reports arising out of a peer support counseling session prohibited from disclosure under the First Responders Suicide Prevention Act.

(pp) Names and all identifying information relating to an employee of an emergency services provider or law enforcement agency under the First Responders Suicide Prevention Act.

(qq) Information and records held by the Department of Public Health and its authorized representatives collected under the Reproductive Health Act.

(rr) Information that is exempt from disclosure under the Cannabis Regulation and Tax Act.

(ss) Data reported by an employer to the Department of Human Rights pursuant to Section 2-108 of the Illinois Human Rights Act.

(tt) Recordings made under the Children's Advocacy Center Act, except to the extent authorized under that Act.

(uu) Information that is exempt from disclosure under Section 50 of the Sexual Assault Evidence Submission Act.

(vv) Information that is exempt from disclosure under subsections (f) and (j) of Section 5-36 of the Illinois Public Aid Code.

(ww) Information that is exempt from disclosure under Section 16.8 of the State Treasurer Act.

(xx) Information that is exempt from disclosure or information that shall not be made public under the Illinois Insurance Code.

(yy) Information prohibited from being disclosed under the Illinois Educational Labor Relations Act.

(zz) Information prohibited from being disclosed under the Illinois Public Labor Relations Act.

(aaa) Information prohibited from being disclosed under Section 1-167 of the Illinois Pension Code.

(bbb) (ccc) Information that is prohibited from disclosure by the Illinois Police Training Act and the Illinois State Police Act.

(ccc) (ddd) Records exempt from disclosure under Section 2605-304 of the Illinois Department of State Police Law of the Civil Administrative Code of Illinois.

(ddd) (bbb) Information prohibited from being disclosed under Section 35 of the Address Confidentiality for Victims of Domestic Violence, Sexual Assault, Human Trafficking, or Stalking Act.

(eee) (ddd) Information prohibited from being disclosed under subsection (b) of Section 75 of the Domestic Violence Fatality Review Act.

(fff) Information that is exempt from disclosure under Section 3-15 of the Public-Private Partnership Act.

(Source: P.A. 101-13, eff. 6-12-19; 101-27, eff. 6-25-19; 101-81, eff. 7-12-19; 101-221, eff. 1-1-20; 101-236, eff. 1-1-20; 101-375, eff. 8-16-19; 101-377, eff. 8-16-19; 101-452, eff. 1-1-20; 101-466, eff. 1-1-20; 101-600, eff. 12-6-19; 101-620, eff 12-20-19; 101-649, eff. 7-7-20; 101-652, eff. 1-1-22; 101-656, eff. 3-23-21; 102-36, eff. 6-25-21; 102-237, eff. 1-1-22; 102-292, eff. 1-1-22; 102-520, eff. 8-20-21; 102-559, eff. 8-20-21; revised 10-5-21.)

Section 90-10. The Public Funds Investment Act is amended by changing Section 2 as follows:

(30 ILCS 235/2) (from Ch. 85, par. 902)

Sec. 2. Authorized investments.

(a) Any public agency may invest any public funds as follows:

(1) in bonds, notes, certificates of indebtedness, treasury bills or other securities now or hereafter issued, which are guaranteed by the full faith and credit of the United States of America as to principal and interest;

(2) in bonds, notes, debentures, or other similar obligations of the United States of America, its agencies, and its instrumentalities;

(3) in interest-bearing savings accounts, interest-bearing certificates of deposit or interest-bearing time deposits or any other investments constituting direct obligations of any bank as defined by the Illinois Banking Act;

(4) in short-term obligations of corporations organized in the United States with assets exceeding $500,000,000 if (i) such obligations are rated at the time of purchase at one of the 3 highest classifications established by at least 2 standard rating services and which mature not later than 270 days from the date of purchase, (ii) such purchases do not exceed 10% of the corporation's outstanding obligations, and (iii) no more than one-third of the public agency's funds may be invested in short-term obligations of corporations under this paragraph (4);

(4.5) in obligations of corporations organized in the United States with assets exceeding $500,000,000 if (i) such obligations are rated at the time of purchase at one of the 3 highest classifications established by at least 2 standard rating services and which mature more than 270 days but less than 3 years from the date of purchase, (ii) such purchases do not exceed 10% of the corporation's outstanding obligations, and (iii) no more than one-third of the public agency's funds may be invested in obligations of corporations under this paragraph (4.5); or

(5) in money market mutual funds registered under the Investment Company Act of 1940, provided that the portfolio of any such money market mutual fund is limited to obligations described in paragraph (1) or (2) of this subsection and to agreements to repurchase such obligations.

(a-1) In addition to any other investments authorized under this Act, a municipality, park district, forest preserve district, conservation district, county, or other governmental unit may invest its public funds in interest bearing bonds of any county, township, city, village, incorporated town, municipal corporation, or school district, of the State of Illinois, of any other state, or of any political subdivision or agency of the State of Illinois or of any other state, whether the interest earned thereon is taxable or tax-exempt under federal law. The bonds shall be registered in the name of the municipality, park district, forest preserve district, conservation district, county, or other governmental unit, or held under a custodial agreement at a bank. The bonds shall be rated at the time of purchase within the 4 highest general classifications established by a rating service of nationally recognized expertise in rating bonds of states and their political subdivisions.

(b) Investments may be made only in banks which are insured by the Federal Deposit Insurance Corporation. Any public agency may invest any public funds in short term discount obligations of the Federal National Mortgage Association or in shares or other forms of securities legally issuable by savings banks or savings and loan associations incorporated under the laws of this State or any other state or under the laws of the United States. Investments may be made only in those savings banks or savings and loan associations the shares, or investment certificates of which are insured by the Federal Deposit Insurance Corporation. Any such securities may be purchased at the offering or market price thereof at the time of such purchase. All such securities so purchased shall mature or be redeemable on a date or dates prior to the time when, in the judgment of such governing authority, the public funds so invested will be required for expenditure by such public agency or its governing authority. The expressed judgment of any such governing authority as to the time when any public funds will be required for expenditure or be redeemable is final and conclusive. Any public agency may invest any public funds in dividend-bearing share accounts, share certificate accounts or class of share accounts of a credit union chartered under the laws of this State or the laws of the United States; provided, however, the principal office of any such credit union must be located within the State of Illinois. Investments may be made only in those credit unions the accounts of which are insured by applicable law.

(c) For purposes of this Section, the term "agencies of the United States of America" includes: (i) the federal land banks, federal intermediate credit banks, banks for cooperative, federal farm credit banks, or any other entity authorized to issue debt obligations under the Farm Credit Act of 1971 (12 U.S.C. 2001 et seq.) and Acts amendatory thereto; (ii) the federal home loan banks and the federal home loan mortgage corporation; and (iii) any other agency created by Act of Congress.

(d) Except for pecuniary interests permitted under subsection (f) of Section 3-14-4 of the Illinois Municipal Code or under Section 3.2 of the Public Officer Prohibited Practices Act, no person acting as treasurer or financial officer or who is employed in any similar capacity by or for a public agency may do any of the following:

(1) have any interest, directly or indirectly, in any investments in which the agency is authorized to invest.

(2) have any interest, directly or indirectly, in the sellers, sponsors, or managers of those investments.

(3) receive, in any manner, compensation of any kind from any investments in which the agency is authorized to invest.

(e) Any public agency may also invest any public funds in a Public Treasurers' Investment Pool created under Section 17 of the State Treasurer Act. Any public agency may also invest any public funds in a fund managed, operated, and administered by a bank, subsidiary of a bank, or subsidiary of a bank holding company or use the services of such an entity to hold and invest or advise regarding the investment of any public funds.

(f) To the extent a public agency has custody of funds not owned by it or another public agency and does not otherwise have authority to invest such funds, the public agency may invest such funds as if they were its own. Such funds must be released to the appropriate person at the earliest reasonable time, but in no case exceeding 31 days, after the private person becomes entitled to the receipt of them. All earnings accruing on any investments or deposits made pursuant to the provisions of this Act shall be credited to the public agency by or for which such investments or deposits were made, except as provided otherwise in Section 4.1 of the State Finance Act or the Local Governmental Tax Collection Act, and except where by specific statutory provisions such earnings are directed to be credited to and paid to a particular fund.

(g) A public agency may purchase or invest in repurchase agreements of government securities having the meaning set out in the Government Securities Act of 1986, as now or hereafter amended or succeeded, subject to the provisions of said Act and the regulations issued thereunder. The government securities, unless registered or inscribed in the name of the public agency, shall be purchased through banks or trust companies authorized to do business in the State of Illinois.

(h) Except for repurchase agreements of government securities which are subject to the Government Securities Act of 1986, as now or hereafter amended or succeeded, no public agency may purchase or invest in instruments which constitute repurchase agreements, and no financial institution may enter into such an agreement with or on behalf of any public agency unless the instrument and the transaction meet the following requirements:

(1) The securities, unless registered or inscribed in the name of the public agency, are purchased through banks or trust companies authorized to do business in the State of Illinois.

(2) An authorized public officer after ascertaining which firm will give the most favorable rate of interest, directs the custodial bank to "purchase" specified securities from a designated institution. The "custodial bank" is the bank or trust company, or agency of government, which acts for the public agency in connection with repurchase agreements involving the investment of funds by the public agency. The State Treasurer may act as custodial bank for public agencies executing repurchase agreements. To the extent the Treasurer acts in this capacity, he is hereby authorized to pass through to such public agencies any charges assessed by the Federal Reserve Bank.

(3) A custodial bank must be a member bank of the Federal Reserve System or maintain accounts with member banks. All transfers of book-entry securities must be accomplished on a Reserve Bank's computer records through a member bank of the Federal Reserve System. These securities must be credited to the public agency on the records of the custodial bank and the transaction must be confirmed in writing to the public agency by the custodial bank.

(4) Trading partners shall be limited to banks or trust companies authorized to do business in the State of Illinois or to registered primary reporting dealers.

(5) The security interest must be perfected.

(6) The public agency enters into a written master repurchase agreement which outlines the basic responsibilities and liabilities of both buyer and seller.

(7) Agreements shall be for periods of 330 days or less.

(8) The authorized public officer of the public agency informs the custodial bank in writing of the maturity details of the repurchase agreement.

(9) The custodial bank must take delivery of and maintain the securities in its custody for the account of the public agency and confirm the transaction in writing to the public agency. The Custodial Undertaking shall provide that the custodian takes possession of the securities exclusively for the public agency; that the securities are free of any claims against the trading partner; and any claims by the custodian are subordinate to the public agency's claims to rights to those securities.

(10) The obligations purchased by a public agency may only be sold or presented for redemption or payment by the fiscal agent bank or trust company holding the obligations upon the written instruction of the public agency or officer authorized to make such investments.

(11) The custodial bank shall be liable to the public agency for any monetary loss suffered by the public agency due to the failure of the custodial bank to take and maintain possession of such securities.

(i) Notwithstanding the foregoing restrictions on investment in instruments constituting repurchase agreements the Illinois Housing Development Authority may invest in, and any financial institution with capital of at least $250,000,000 may act as custodian for, instruments that constitute repurchase agreements, provided that the Illinois Housing Development Authority, in making each such investment, complies with the safety and soundness guidelines for engaging in repurchase transactions applicable to federally insured banks, savings banks, savings and loan associations or other depository institutions as set forth in the Federal Financial Institutions Examination Council Policy Statement Regarding Repurchase Agreements and any regulations issued, or which may be issued by the supervisory federal authority pertaining thereto and any amendments thereto; provided further that the securities shall be either (i) direct general obligations of, or obligations the payment of the principal of and/or interest on which are unconditionally guaranteed by, the United States of America or (ii) any obligations of any agency, corporation or subsidiary thereof controlled or supervised by and acting as an instrumentality of the United States Government pursuant to authority granted by the Congress of the United States and provided further that the security interest must be perfected by either the Illinois Housing Development Authority, its custodian or its agent receiving possession of the securities either physically or transferred through a nationally recognized book entry system.

(i-5) In addition to all other investments authorized under this Section, a public agency may invest in a financial arrangement that finances a qualifying project authorized under Article 8 of the Public-Private Partnership Act.

(j) In addition to all other investments authorized under this Section, a community college district may invest public funds in any mutual funds that invest primarily in corporate investment grade or global government short term bonds. Purchases of mutual funds that invest primarily in global government short term bonds shall be limited to funds with assets of at least $100 million and that are rated at the time of purchase as one of the 10 highest classifications established by a recognized rating service. The investments shall be subject to approval by the local community college board of trustees. Each community college board of trustees shall develop a policy regarding the percentage of the college's investment portfolio that can be invested in such funds.

Nothing in this Section shall be construed to authorize an intergovernmental risk management entity to accept the deposit of public funds except for risk management purposes.

(Source: P.A. 102-285, eff. 8-6-21.)".