May 19, 2009, Introduced by Reps. Gonzales, Donigan, Bauer, Kandrevas, Polidori, LeBlanc, Geiss, Lahti, Melton, Byrnes and Dean and referred to the Committee on Transportation.
A bill to amend 1964 PA 286, entitled
"An act to provide for the organization, powers, and duties of the
state transportation commission and the state transportation
department; to provide for the appointment, powers, and duties of
the state transportation director; to abolish the office of state
highway commissioner and the commissioner's advisory board and to
transfer their powers and duties; to provide for penalties and
remedies; and to repeal certain acts and parts of acts,"
by amending the title and sections 1, 6a, 7, 7a, and 10 (MCL
247.801, 247.806a, 247.807, 247.807a, and 247.810), the title as
amended by 1984 PA 398 and section 7a as amended by 1981 PA 122,
and by adding sections 7b, 7c, 7d, 7e, 7f, and 7g.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
TITLE
An act to provide for the organization, powers, and duties of
the state transportation commission and the state transportation
department; to provide for the appointment, powers, and duties of
the state transportation director; to abolish the office of state
highway commissioner and the commissioner's advisory board and to
transfer their powers and duties; to provide for public-private
transportation facilities; to authorize public-private agreements
relating to researching, planning, studying, designing, developing,
financing, acquiring, constructing, tolling, operating, or
maintaining a public-private transportation facility, or any
combination of those activities, or to other arrangements for the
creation and operation of public-private transportation facilities
that may be financed by tolls, charges, and other revenue that may
be available, including the sale of revenue bonds, or from any
other available funding source, and for the department to exercise
certain powers; to provide for penalties and remedies; and to
repeal
certain acts and parts of acts.
Sec. 1. As used in this act:
(a) (1)
"Commission" means the
state transportation
commission.
(b) (2)
"Director" means the
director of transportation.
(c) (3)
"Department" means the
department of transportation.
(d) "Instrumentality of government" means a legal public
entity created or empowered to carry out functions commonly carried
out by units of government.
(e) "Operator" means a private entity that has entered into a
public-private agreement under section 7b.
(f) "Private entity" means any natural person, corporation,
general partnership, limited liability company, limited
partnership, joint venture, business trust, public benefit
corporation, nonprofit entity, or other nongovernmental business
entity.
(g) "Public-private agreement" means an agreement between a
private entity and the department or the department and 1 or more
governmental entities that relates to researching, planning,
studying, designing, developing, financing, acquiring,
constructing, tolling, operating, or maintaining a transportation
facility, or any combination of those activities.
(h) "Transportation facility" means any new or existing
highway, road, bridge, tunnel, overpass, ramp, interchange, ferry,
airport, vehicle parking facility, vehicle transportation facility,
port facility, locks facility, rail facility, intermodal or other
public transit facility, or any other equipment, rolling stock,
site, or facility used in the transportation of persons, goods,
substances, vehicles, information, or matter of any kind, and any
building, structure, parking area, appurtenance, or other property
necessary or desirable for the facility.
Sec. 6a. The director may do the following:
(a) Organize the department and its work, supervise the work
of the employees and agents of the department, create, merge, and
abolish organizational divisions within the department, and
transfer or merge functions among those divisions in the interest
of economy and efficiency.
(b) Employ personnel necessary to carry out the duties of the
director and the responsibilities of the department subject to laws
governing state employment and contracts.
(c) Delegate to any employee of the department, subject to the
approval of the commission, any powers vested in the director or
delegated to the director by the commission except the power to
enter into a public-private agreement under section 7b.
(d) Establish a program of current and long-range planning for
the transportation systems and transportation facilities under the
department's jurisdiction.
(e) Direct the preparation of budget requests, expenditures,
programs and periodical allotments.
(f) Purchase materials, supplies, services, and equipment as
necessary and proper to carry out the duties of the department as
provided by law governing state purchasing.
(g) Dispose of obsolete equipment, surplus supplies and
material that cannot be used by the department as provided by law
governing the disposal.
(h) Do anything necessary and proper to comply fully with the
provisions of present or future federal aid acts.
(i) Enter into public-private agreements under section 7b with
the approval of the commission.
(j) (i)
Do anything necessary and proper to
carry out the
duties imposed upon the department by the constitution and other
duties as may be imposed by law.
Sec. 7. (1) The commission's powers and duties shall include:
(a) The awarding of all contracts for the construction,
improvement, and maintenance of the highways and transportation
facilities under its jurisdiction, as provided by law.
(b) The establishment of transportation policies for the
guidance and direction of the director.
(c) Approval or disapproval of public-private agreements
entered into by the department under section 7b.
(2) The commission may do the following:
(a) Delegate to any member of the commission, the director, or
any subordinate, any powers, other than the power to establish
policy, vested in the commission as it considers necessary and
proper; and permit the director to delegate any powers delegated to
him or her by the commission except for the power to enter into
public-private agreements under section 7b.
(b) Acquire, own, and hold real and personal property in the
name
of the this state or the commission and sell, lease or
otherwise dispose of, or encumber, the same in connection with, and
in furtherance of, its duties and the purposes of this act.
(c) Do anything necessary and proper to carry out the duties
imposed upon it by the constitution and such other duties as may be
imposed by law.
Sec. 7a. (1) As used in this section:
(a) "Completion" means the date when the construction,
improvement, or maintenance of a bridge, highway, or other
transportation facility is accepted in accordance with the contract
documents, so that the bridge, highway, or other transportation
facility may be used for its intended purpose.
(b) "Construction contract" means an agreement between a
contractor and the department for the construction, improvement, or
maintenance of a bridge, highway, or other transportation facility.
Construction contract does not include a public-private agreement.
(c)
"Contractor" means an individual; sole proprietorship;
partnership;
corporation; joint venture; or other legal a person or
entity,
other than the this state, or an agency or department of
the state, who is a party to a construction contract.
(d)
"Project" means the specific section 9 of the highway
construction
portion of a transportation
facility to be performed
under the construction contract.
(2) A construction contract may provide for partial payments
to be made periodically to a contractor. The department may
establish specifications regarding the retention of a portion of
the total amount earned under the construction contract.
(3) At the request of the contractor and upon the approval of
the department, the portion retained pursuant to the specifications
established under subsection (2) shall be placed in an escrow
account pursuant to this section.
(4) An escrow agent may be selected by the contractor. For
purposes of this section, an escrow agent shall be a state or
national bank, a state or federally chartered savings and loan
association, or a state or federally chartered credit union whose
principal place of business is located in this state.
(5) An escrow agreement shall be entered into between the
contracting parties and the escrow agent. The escrow agreement
shall contain all of the following terms:
(a) That the escrow agent shall promptly invest all of the
escrowed funds.
(b) That the escrow agent shall hold the escrowed funds until
receipt of notice from the department. Upon receipt of a notice of
release from the department, the escrow agent shall promptly remit
the designated portion of escrowed funds to the contractor involved
in the contract. Upon receipt of a notice of overpayment or default
of the contract, the escrow agent shall promptly remit the
designated portion of escrowed funds to the department.
(c) That the escrow agent is responsible for all investments
and money as a result of the deposit of the amount until released
from responsibility pursuant to the escrow agreement.
(d) That the contractor shall pay all expenses regarding the
deposit, investment, and administration of the retained amount and
all other charges made by the escrow agent.
(e) Any other provision agreed to by the contracting parties
and the escrow agent necessary or proper for purposes of this
section.
Sec. 7b. (1) Except as otherwise provided in this section, the
department may enter into a public-private agreement with a private
entity or with a private entity and 1 or more other
instrumentalities of government, to provide for researching,
planning, studying, designing, developing, financing, acquiring,
constructing, tolling, governing, operating, or maintaining a
transportation facility or any combination of those activities. The
agreement shall include terms designed to protect the public
interest and assure accountability of an operator to the
department. A public-private agreement may contain terms and
conditions that the department may determine or negotiate to
facilitate the researching, planning, studying, designing,
developing, financing, acquiring, constructing, tolling, governing,
operating, or maintaining of a transportation facility in the
public interest.
(2) A public-private agreement shall provide for the terms of
the use and operation of a transportation facility by an operator
for a period determined necessary for the economic viability of the
arrangement. The agreement may provide for an initial term and 1 or
more optional terms. The agreement shall provide that the ownership
of a transportation facility within this state shall be vested in
an instrumentality of government and that title to the
transportation facility shall not be encumbered. No provision of a
public-private agreement shall allow the public to be deprived of
the use and benefit of a transportation facility except as
necessary to implement tolls or other charges authorized by this
section or to regulate the level or character of permissible uses
of the transportation facility. A public-private agreement shall
provide for the termination of the agreement.
(3) A public-private agreement may provide for the charging
and collection of reasonable tolls and other charges for the use of
a transportation facility, including, but not limited to, tolls for
managed lanes or congestion-pricing-based tolls. A toll may be
imposed on a highway only if imposed for the use of new highways,
or the use of expanded highway capacity beyond highway capacity in
place on the effective date of the amendatory act that added this
section. Tolls and other charges imposed for the use of a
transportation facility are not subject to regulation by any other
governmental agency. Nothing in this section shall be construed to
allow the conversion of any nontoll or nonuser-fee lanes existing
on the effective date of the amendatory act that added this section
into tolled or user-fee lanes with the exception of a high-
occupancy vehicle lane that may be operated as a high-occupancy
toll lane for vehicles not otherwise meeting the requirements for
use of that lane.
(4) Compensation paid to the department in connection with a
public-private agreement and tolls and charges imposed for use of a
transportation facility may be used for the costs of researching,
planning, studying, designing, developing, financing, acquiring,
constructing, tolling, governing, operating, or maintaining the
facility, or other transportation facilities, including the
repayment of bonds sold for those purposes. As provided by the
terms of a public-private agreement, a portion of the revenue may
be allotted to the operator.
(5) In accordance with the terms of a public-private
agreement, the department shall oversee the activities of an
operator carrying out the terms of a public-private agreement. A
public-private agreement may provide for the use of arbitration,
mediation, or other alternative dispute resolution mechanism for
the resolution of disputes between the department and an operator.
(6) The public-private agreement may provide that when an
operator is performing functions on behalf of the department or
other instrumentality of government under the agreement that the
operator is cloaked with the same immunity from tort liability as
the department or instrumentality of government. The public-private
agreement may provide for the department or other instrumentality
of government to be relieved of any liability for the acts or
omissions of the operator or other party to the agreement.
(7) A public-private agreement may permit the conduct of
commercial activities at a transportation facility if the
activities are related to the transportation purposes of the
facility and to the extent not restricted by applicable law.
(8) The construction and operation of a transportation
facility authorized by this section shall be in conformity with all
laws applicable to a transportation facility constructed or
operated by this state under direct contract with the department
using state or federal funds. A public-private agreement may
authorize an operator or a contractor for a transportation facility
authorized by a public-private agreement to provide a letter of
credit in lieu of a payment or performance bond.
(9) The department may make and enter into all contracts and
agreements and take any other action necessary or incidental to the
performance of its duties and the execution of its powers under
this act and a public-private agreement.
Sec. 7c. (1) The department may solicit proposals or receive
unsolicited proposals for a public-private agreement and may charge
and use fees to offset the administrative costs of receiving and
evaluating proposals. Prior to receiving a submission, the
department may agree to reimburse a private entity for designated
costs incurred in the preparation and presentation of a proposal in
return for the right to use any work product contained in the
proposal, including, but not limited to, the technologies, methods,
processes, and information contained in the material submitted in
connection with the proposal. The department has the sole
discretion whether, and to what extent, to consider an unsolicited
proposal. Before entering into an public-private agreement for a
transportation facility proposed by an unsolicited proposal, the
department shall solicit competing proposals and enter into any
public-private agreement using the criteria in subsection (4).
(2) In soliciting or selecting a private entity with which to
enter into a public-private agreement, the department may utilize 1
or more of the following procurement approaches:
(a) Sealed bidding.
(b) Selection of proposals, with or without negotiations,
based on qualifications, development proposals, technical
proposals, financial proposals, best value, or any combination of
them.
(c) Any competitive selection process that the department
determines to be appropriate or reasonable.
(3) The department shall select a private entity or entities
for participation in a public-private agreement using a competitive
selection process when to the extent practicable.
(4) The department may consider 1 or more of the following
factors in evaluating and selecting a bid or proposal to enter into
a public-private agreement with a private entity:
(a) The ability of the transportation facility to improve
safety or operations, reduce congestion, reduce travel times,
increase capacity, enhance environmental quality, promote economic
development, or any combination of those or similar factors.
(b) The proposed cost of and financial plan for the
transportation facility.
(c) The general reputation, qualifications, industry
experience, and financial capacity of the private entity.
(d) The proposed design, operation, and feasibility of the
transportation facility.
(e) Comments from affected residents and instrumentalities of
government.
(f) Benefits to the public.
(g) The safety record of the private entity.
(h) Ability to increase federal or other nonstate revenue to
this state.
(i) Any other criteria that the department considers necessary
or appropriate in the best interests of this state or the people of
this state.
(5) The department may select multiple private entities with
which to enter into public-private agreements for a transportation
facility if it is determined by the department to be in the public
interest to do so.
(6) The department may promise to keep trade secrets or
proprietary commercial or financial information provided by a
private entity confidential only for purposes of seeking or
entering into a public private agreement. Upon receipt of a
sufficiently detailed request by a private entity, the department
shall provide a description of the information to which its promise
of confidentiality will extend. Information submitted under such a
promise of confidentiality shall not be subject to disclosure under
the freedom of information act, 1976 PA 442, MCL 15.231 to 15.246.
Submission of a solicited or unsolicited proposal constitutes
consent for the department to use the information and ideas
provided by a private entity for a transportation facility or for
purposes of seeking or entering into a public-private agreement,
including to solicit competing proposals unless the department
agrees otherwise in a writing executed by the department before the
submission.
(7) No action shall lie against the department for its use of
ideas and information provided by a private entity for purposes of
seeking or entering into a public-private agreement.
Sec. 7d. (1) Whether used by the department, another
instrumentality of government, or a private entity under a public-
private agreement, a transportation facility, including, but not
limited to, tangible personal property used exclusively with a
transportation facility, that is owned by the department or another
instrumentality of government is exempt from all ad valorem
property taxes and all assessments levied against property by this
state or any political subdivision of the state.
(2) No person shall by reason of the use of motor fuel within
the limits of a transportation facility authorized by a public-
private agreement be exempt from or eligible for a refund of a
motor fuel tax imposed by this state or a political subdivision of
this state.
(3) Subject to approval from the commission and compliance
with applicable federal laws, the department has exclusive
authority to determine where and whether to establish a
transportation facility authorized by a public-private agreement
and the scope and nature of the facility.
(4) Revenue attributable to a transportation facility
authorized by a public-private agreement that is payable to the
department shall be deposited in the state trunk line fund,
comprehensive transportation fund, or aeronautics fund, as
indicated by the nature of the transportation facility and provided
in the public-private agreement.
Sec. 7e. (1) The department may issue and sell bonds or notes
for the purpose of providing funds to carry out the provisions of
this act with respect to the development, acquisition,
construction, financing, maintenance, or operation of a
transportation facility provided for by a public-private agreement
or the refunding of any bonds or notes, together with any costs
associated with the transaction.
(2) Any bond or note issued under subsection (1) does not
constitute a pledge of the faith and credit or indebtedness of this
state or any political subdivision of this state within the meaning
or application of any constitutional provision or limitation. A
bond or note issued under subsection (1) is payable solely as to
both principal and interest from revenues generated from use of the
transportation facility authorized by the public-private agreement,
the proceeds of bonds or notes sold to finance the refunding of the
outstanding bonds or notes, if any, or investment earnings on the
proceeds of the bonds or notes.
(3) The department may retain such services and enter into
such contracts as may be necessary or useful for the issuance and
sale of bonds, notes, or other financial instruments under this
section.
(4) For the purpose of financing a transportation facility,
the department, another instrumentality of government, or the
operator may apply for, obtain, issue, and use private activity
bonds or other financial instruments available under any state or
federal law or program. An instrumentality of government may act as
a conduit issuer and transfer the proceeds of private activity
bonds or similar financial instruments to an operator if authorized
by a public-private agreement. The bonds or instruments shall not
pledge the full faith and credit of this state or any political
subdivision of this state and shall not be a debt of this state or
any political subdivision of this state.
(5) This section does not limit a governmental entity's
authority to issue bonds or other financial instruments for
transportation projects under other laws or from financing a
transportation facility with funds provided or raised under other
laws, including, but not limited to, laws authorizing the sale of
bonds.
Sec. 7f. (1) The department may accept from the United States
or any of its agencies, including, but not limited to, a federal
infrastructure bank, funds that are available to the department for
carrying out a public-private agreement, whether the funds are made
available by grant, loan, line of credit, loan guarantee, or other
financial assistance.
(2) The department may assent to any federal requirements,
conditions, or terms of any federal funding accepted under this
section other than a pledge of the faith and credit of this state
or any political subdivision of this state or another requirement,
condition, or term prohibited by the state constitution of 1963.
(3) The department may enter into agreements or other
arrangements with the United States or any of its agencies as may
be necessary for implementing a public-private agreement.
(4) The department may accept from any source, and use for
supporting a transportation facility authorized by a public-private
partnership, any grant, donation, gift, or other form of conveyance
of land, money, other real or personal property, or other item of
value. A transportation facility authorized by a public-private
agreement may be financed in whole or in part by contribution of
any funds or property made by any person or entity.
(5) The department may combine federal, state, local, and
private funds to finance a transportation facility authorized by a
public-private agreement.
Sec. 7g. (1) All law enforcement officers of this state and
local units of government in which all or part of a transportation
facility authorized by a public-private agreement is located shall
have the same powers and jurisdiction within the limits of the
transportation facility as they have in their respective areas of
jurisdiction to enforce traffic and motor vehicle laws. Public
safety, fire, and emergency response personnel shall be afforded
access to a transportation facility while in the performance of an
official duty without the payment of a toll or other charge.
(2) Punishment for violations of traffic and motor vehicle
laws within the limits of a transportation facility authorized by a
public-private agreement shall be as generally prescribed by law.
(3) A person who fails to pay a toll imposed for use of a
transportation facility authorized by a public-private agreement is
liable for, and shall pay, 3 times the amount of the toll to
account for the costs of administration and collection. If the
required sum remains unpaid for 180 days after the person's use of
the transportation facility, the department, or a private entity
authorized to do so by the department, may bring a civil action
against the person to collect the unpaid charges in a court having
jurisdiction. If the civil action results in a judgment for unpaid
charges, the defendant shall also be required to reimburse the
plaintiff for all filing fees incurred by the plaintiff plus
$500.00 in compensation for the costs of bringing the civil action.
(4) A person who fails to pay a toll imposed for use of a
transportation facility more than 3 times in a 12-month period
shall be liable to the plaintiff for 2 times the charges, fees, and
costs imposed under subsection (3) for each additional failure to
pay the toll within a 12-month period.
(5) During the period that a person owes and has failed to pay
charges, fees, and costs under subsection (3) or (4), the person
and a motor vehicle used by the person may be barred from using the
transportation facility.
(6) Except as provided in section 675b of the Michigan vehicle
code, 1949 PA 300, MCL 257.675b, involving leased vehicles, proof
that a particular vehicle used a transportation facility without
payment of the applicable toll, together with proof from the
department of state of the name of the vehicle's registered owner,
creates a presumption that the vehicle's registered owner was the
person who used the transportation facility, who failed to pay the
toll, and who is prima facie responsible for the unpaid charges. If
the conditions of section 675b of the Michigan vehicle code, 1949
PA 300, MCL 257.675b, are satisfied, the lessee or renter of a
motor vehicle and not the leased vehicle owner is the person liable
under this section, for which purposes the entity that gives notice
of unpaid charges to the vehicle's registered owner shall be given
the notice that would otherwise be given to the clerk of the court
or parking violations bureau under section 675b of the Michigan
vehicle code, 1949 PA 300, MCL 257.675b.
(7) The owner of a vehicle alleged to have used a
transportation facility without paying an applicable toll may
assert as an affirmative defense that the vehicle in question, at
the time of the use of the transportation facility, was in the
possession of a person whom the owner had not knowingly permitted
to operate the vehicle.
Sec. 10. Documents and instruments of any kind authorized to
be issued or executed by the commission shall be issued or executed
in
the name of the "Michigan state highway transportation
commission"
by the chairman chairperson
of the commission, or to
the extent expressly authorized by bylaw or resolution, by the vice
chairman
chairperson, other member, the director, or other
subordinate.
Documents or instruments which that
convey interests
or
rights in land shall be executed by the chairman chairperson or
vice
chairman chairperson and the director or a deputy director
designated by the commission.