June 7, 2011, Introduced by Senator RICHARDVILLE and referred to the Committee on Economic Development.
A bill to create a governmental authority for new
international trade crossings; to prescribe the powers and duties
of the authority; to authorize procurement, design, finance,
construction, maintenance, operation, improvement, and repair of
new international bridges and approaches; to authorize certain
agreements with public and private entities; to provide for the
issuance of, and terms and conditions for, certain bonds; to
provide for the imposition, collection, and enforcement of user
fees and other charges; to provide for civil fines; to authorize
the acquisition, maintenance, and disposal of interests in real and
personal property; to provide for certain duties of certain state
and local departments and officers; to provide for the power to
enter into interlocal agreements; to exempt certain property,
income, and activities from tax; to make an appropriation; and to
repeal acts and parts of acts.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 1. This act shall be known and may be cited as the "new
international trade crossing act".
Sec. 3. As used in this act:
(a) "Authority" means the Michigan governmental authority for
a new international trade crossing created in this act.
(b) "Availability payment" means a periodic payment to a
concessionaire under a public-private agreement.
(c) "Bond" means a revenue bond, note, or other obligation
issued by the authority under this act.
(d) "Canadian contribution" means a gift, contribution,
payment, advance, grant, availability payment, or other money
received for or in aid of a project from a public agency of Canada
pursuant to a governance agreement.
(e) "Concessionaire" means a private entity that is a party to
a public-private agreement authorized by this act.
(f) "Crossing" means a public international bridge and bridge
approaches, including, but not limited to, all related structures,
plazas, facilities, improvements, extensions, interchanges,
property, and property interests, between Ontario, Canada, and this
state that is at least partially located in a city that, as of the
date of the first commencement of a project activity, has a
population of at least 600,000 according to the most recent
decennial census.
(g) "Debt" means borrowed money, loans, and other
indebtedness, including principal and interest, evidenced by a bond
or other security lawfully issued or assumed under this act, in
whole or in part, by the authority or that may be evidenced by a
judgment or decree against the authority.
(h) "Department" means the state transportation department.
(i) "Disaster" means an occurrence or threat of widespread or
severe damage, injury, or loss of life or property resulting from a
natural cause or human-made cause, including, but not limited to,
fire, flood, snowstorm, ice storm, tornado, windstorm, wave action,
oil spill, water contamination, utility failure, hazardous
peacetime radiological incident, major transportation accident,
hazardous materials incident, epidemic, air contamination, blight,
drought, infestation, explosion, hostile military action or
paramilitary action, or a similar occurrence resulting from
terrorist activity, riot, or civil disorder.
(j) "Disaster recovery" means action taken by a governmental
agency in response to a disaster.
(k) "Governance agreement" means an interlocal agreement under
the urban cooperation act of 1967, 1967 (Ex Sess) PA 7, MCL 124.501
to 124.512, that includes the authority and a public agency of
Canada as parties.
(l) "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.
(m) "Project" means all activities associated with a crossing,
including project land activities and project activities.
(n) "Project activity" means the research, planning,
procurement, design, financing, construction, and improvement for,
and repair, maintenance, and operation of, a crossing under this
act.
(o) "Project contribution" means a gift, contribution,
payment, advance, grant, or other money received in aid of a
project from the federal government or an agency of the federal
government.
(p) "Project costs" means the costs associated with a project,
including, but not limited to, the cost of project activities;
project land activities; mitigation and enhancement measures
included in the green sheet or record of decision for a project
pursuant to the national environmental policy act of 1969, 42 USC
4321 to 4370h; all assets, including machinery, vehicles, and
equipment, including financing costs; traffic estimates; studies;
legal and other advisory services; engineering services; plans;
surveys; feasibility studies; administrative expenses; and expenses
that may be necessary or incidental to the procurement, design,
construction, repair, or improvement of the crossing and the
financing, operation, and maintenance of the crossing.
(q) "Project land activity" means the acquisition of all land,
rights-of-way, property, rights, easements, and interests for a
crossing.
(r) "Project revenue" means user fees or other charges
generated by the use of a crossing and any other revenue generated
from the use of or by the crossing or associated with a project,
including, but not limited to, any revenue arising from a public-
private agreement.
(s) "Public agency" means that term as defined under section 2
of the urban cooperation act of 1967, 1967 (Ex Sess) PA 7, MCL
124.502, including, but not limited to, an entity established by
the government of Canada under the laws of Canada and an authority
established under this act.
(t) "Public-private agreement" means any of the following
relating to the research, planning, procurement, design, financing,
construction, and improvement for, and repair, maintenance, and
operation of a project:
(i) An agreement between a private entity or private entities
and the authority.
(ii) An agreement between a private entity or private entities
and a public agency of Canada.
(iii) An agreement between a private entity or private entities
and a separate legal or administrative entity created under a
governance agreement.
(iv) An agreement with a private entity or private entities and
a public agency or public agencies as parties involving a joint
exercise of power by the authority and a public body of Canada
authorized by a governance agreement.
(u) "Qualified revenue" means all of the following:
(i) Project revenue.
(ii) A Canadian contribution.
(iii) A project contribution.
Sec. 7. (1) The authority is created as a public body
corporate in the department. Except as otherwise provided in this
act, the authority shall exercise its powers, duties, and functions
under this act independently of the director of the department. The
authority may contract with the department for the purpose of
maintaining the rights and interests of the authority.
(2) The budgeting, procurement, and related management
functions of the authority shall be performed under the direction
of the director of the department. This subsection does not apply
to a separate legal or administrative entity that may be created by
a governance agreement.
(3) The authority shall ensure that the expenditure of any
Canadian contribution in this state maximizes the amount of federal
aid to the department. To accomplish this objective, the project
shall be divided into discrete portions that may independently
qualify for federal aid. If maximizing federal aid to the
department would cause the total cost of those portions in this
state that are to be funded by the Canadian contribution under the
governance agreement to exceed the Canadian contribution amount
specified in the governance agreement for those portions, the
portion or portions that would generate the least total federal aid
to the department shall be exempt from this requirement. No more
portions shall be exempt from this requirement than are necessary
to bring the total cost of those portions in this state that are to
be funded by the Canadian contribution under the governance
agreement below the level of the Canadian contribution amount
specified in the governance agreement for those portions. The
obligations under this subsection shall not impede the timely
implementation of the project. However, it is not an impediment to
the timely implementation of the project if the delay is necessary
in order to maximize the amount of federal aid to the department
and is for a reasonable time period as described in the governance
agreement. The director of the department shall ensure that the
authority complies with this subsection. The obligations under this
subsection terminate on the date the crossing is open to public
transportation.
(4) Subject to available appropriations, notwithstanding other
law to the contrary, if requested by the authority, the department
shall provide staff and other support to the authority sufficient
to enable the authority to carry out the powers, duties, and
functions of the authority under this act.
(5) All departments, agencies, and officers of state
government shall provide full cooperation to the authority in the
performance of powers, duties, and functions of the authority.
(6) This act does not diminish the power of the state
transportation commission under section 28 of article V of the
state constitution of 1963 to establish policy for department
programs and facilities and other public works of this state, as
provided by law.
(7) This act does not diminish the power of the civil service
commission under section 5 of article XI of the state constitution
of 1963.
(8) The authority may exercise all of the following powers:
(a) Adopt bylaws to regulate its affairs and conduct its
business.
(b) Adopt or change an official seal.
(c) Maintain an office or offices as needed.
(d) Sue and be sued in its own name.
(e) Determine location, design standards, and construction
materials of a crossing.
(f) Research, plan, procure, design, finance, construct,
operate, improve, and repair a project.
(g) Fix, revise as necessary, charge, enforce, and collect
user fees and other charges for the use of, or contract with a
private entity to fix, revise as necessary, charge, enforce, and
collect user fees and other charges for the use of a crossing.
(h) Establish rules and regulations for use of a crossing.
(i) Purchase, otherwise acquire, receive, accept, lease, hold,
and dispose of real and personal property in the exercise of its
powers and the performance of its duties under this act, including,
but not limited to, interests in real and personal property and
related rights or interests such as structures, rights-of-way,
franchises, easements, liens, lands under water, and riparian
rights. Nothing in this subdivision or act gives the authority the
power of eminent domain.
(j) Accept contributions of real property from the department
or other entities.
(k) Issue bonds and refinance the bonds, as authorized by this
act.
(l) Make and enter into contracts and agreements necessary or
incidental to the performance of its duties and the exercise of its
powers under this act.
(m) Employ consulting engineers, attorneys, accountants,
construction and financial experts, superintendents, managers, and
other employees and agents as may be necessary in its judgment and
fix their compensation, subject to any applicable rules or
regulations of the civil service commission.
(n) Receive and accept from any source gifts, property,
structures, rights, rights-of-way, franchises, easements, property
rights, contributions, grants, or funds for or in aid of a project.
(o) Develop and use any property owned or controlled by the
authority for customs brokering, currency exchange transactions, or
for the sale of articles for export and consumption outside the
United States or Canada, respectively, to the extent that this use
is not restricted by federal law or Canadian law. The authority may
also enter into contracts or leases to provide for the development
and use of any property owned or controlled by the authority for
customs brokering, currency exchange transactions, or for the sale
of articles for export and consumption outside the United States or
Canada, respectively, to the extent that this use is not restricted
by federal law or Canadian law. If the authority contracts for the
services described in this subdivision, the authority shall use a
competitive bidding process. A contract or lease entered into under
this subdivision does not exempt a person from the payment of any
motor fuel, sales, or other taxes required to be paid under the
laws of this state on articles or fuel sold or brought into this
state for consumption.
(p) Enter into a governance agreement as provided in section
11.
(q) Apply for and use grants, loans, loan guarantees, lines of
credit, revolving lines of credit, or other arrangements available
under 23 USC 601 to 610 or other applicable law in a manner
consistent with this act.
(r) Seek allocation for, issue, and provide for the issuance
of private activity bonds as described under 26 USC 141 or other
applicable law to finance a project.
(s) Exercise other powers of the department relating to
streets, highways, transportation programs, transportation
facilities, and transportation public works of this state not
otherwise vested in the authority only to the extent related to a
project and necessary to carry out the purposes of this act.
Nothing in this subdivision or act gives the authority the power of
eminent domain.
(t) Do anything necessary and proper consistent with the
provisions of this act to carry out the purposes of and powers
explicitly granted in this act.
Sec. 9. (1) The powers and duties of the authority are vested
in a board of directors. The board shall have 5 members who shall
be appointed by the governor with the advice and consent of the
senate. The governor shall designate a member of the board, who
does not also serve as the head of a state department, as its
chairperson. One member shall be appointed by the governor from a
list of 3 or more names nominated by the senate majority leader,
and 1 member shall be appointed by the governor from a list of 3 or
more names submitted by the speaker of the house of
representatives. Of the 3 members initially appointed by the
governor without nomination by the senate majority leader or the
speaker of the house of representatives, the first member shall be
appointed for an initial term of 2 years, and 2 members shall be
appointed for an initial term of 4 years each. The initial members
nominated by the senate majority leader and the speaker of the
house of representatives shall be appointed for initial terms of 2
years each. After the expiration of initial terms, members shall be
appointed for terms of 4 years. A member of the board shall
continue to serve until a successor is appointed and qualified. A
vacancy on the board occurring other than by expiration of a term
shall be filled by the governor in the same manner as the original
appointment for the balance of the unexpired term. An employee of
the department shall not serve as a member of the board.
(2) A majority of the members of the board serving constitute
a quorum for the transaction of the business of the authority. The
board shall act by a majority vote of its serving members.
(3) The board shall meet at the call of the chairperson and as
may be provided in procedures adopted by the board.
(4) The board may, as appropriate, make inquiries, studies,
and investigations, hold hearings, and receive comments from the
public. Subject to available funding, the board also may consult
with outside experts to perform its duties, including, but not
limited to, experts in the private sector, organized labor, and
government agencies and experts at institutions of higher
education.
(5) The board may hire or retain contractors, subcontractors,
advisors, consultants, and agents as the board considers advisable
and necessary, in accordance with the relevant statutes and
procedures, rules, and regulations of the civil service commission
and the department of technology, management, and budget and may
make and enter into contracts necessary or incidental to the
exercise of the powers and performance of the duties of the board.
Under this subsection, the board may hire or retain contractors,
subcontractors, advisors, consultants, and agents as the board
considers advisable and necessary to provide legal advice or legal
services, to provide for research and development activity, or to
provide strategic planning services.
(6) Members of the board shall serve without compensation.
Members of the board may receive reimbursement for necessary travel
and expenses consistent with relevant statutes and the rules and
procedures of the civil service commission and the department of
technology, management, and budget, subject to available funding.
(7) A member of the board shall discharge the duties of the
position in a nonpartisan manner, in good faith, in the best
interests of this state, and with the degree of diligence, care,
and skill that an ordinarily prudent person would exercise under
similar circumstances in a like position. A member of the board
shall not make or participate in making a decision, or in any way
attempt to use his or her position as a member of the board to
influence a decision, on a matter before the authority in which the
member is directly or indirectly interested. A member of the board
shall not be interested directly or indirectly in any contract with
the authority or the department that would cause a substantial
conflict of interest. A member of the board shall comply, and the
board shall adopt policies and procedures that require members to
comply, with the requirements of this subsection and all of the
following:
(a) 1978 PA 472, MCL 4.411 to 4.431.
(b) 1978 PA 566, MCL 15.181 to 15.185.
(c) 1968 PA 318, MCL 15.301 to 15.310, as if he or she were a
state officer.
(d) 1968 PA 317, MCL 15.321 to 15.330, as if he or she were a
public servant.
(e) 1973 PA 196, MCL 15.341 to 15.348, as if he or she were a
public officer.
(8) Beginning on the effective date of this act and continuing
until the appointment and qualification of 5 members of the board
as provided under this section, the powers and duties vested in the
board under this act may be exercised by the state administrative
board created under 1921 PA 2, MCL 17.1 to 17.3.
(9) Within 60 days after the first meeting of the authority,
the department shall establish a website for the authority and the
authority shall post on the website updates not less than weekly on
authority activities and transactions and the progress of any
project, including, but not limited to, all proposed public-private
agreements.
(10) The authority is subject to, and shall conduct its
meetings in compliance with, the open meetings act, 1976 PA 267,
MCL 15.261 to 15.275.
(11) Except as otherwise provided in this act, the authority
shall comply with the freedom of information act, 1976 PA 442, MCL
15.231 to 15.246.
(12) The department may transfer property or interests in
property under the jurisdiction or control of the department to the
authority for purposes authorized under this act.
Sec. 11. (1) The authority may enter into a governance
agreement concerning a project under this act. The governance
agreement may create a separate legal or administrative entity
under the urban cooperation act of 1967, 1967 (Ex Sess) PA 7, MCL
124.501 to 124.512, including a joint venture between the authority
and a public agency of Canada, that shall be a public body
corporate or politic and shall not be a public body of the
executive branch of this state. Pursuant to this subsection,
activities of the authority under this act may be exercised jointly
with a public agency of Canada pursuant to a governance agreement,
including through a separate legal or administrative agency. The
governance agreement may establish terms and conditions for the
separate legal or administrative entity to exercise any power that
the authority and a public agency of Canada share in common as
provided in section 4 of the urban cooperation act of 1967, 1967
(Ex Sess) PA 7, MCL 124.504. The governance agreement shall not
authorize the authority or any entity created by the governance
agreement to levy a tax or to take property using the power of
eminent domain.
(2) In accordance with a governance agreement established
under subsection (1), the department or the authority may receive
funds from a Canadian contribution. An agreement involving the
authority and a public agency of Canada relating to a Canadian
contribution shall not impose any obligation on the department, the
authority, this state, or a political subdivision of this state to
repay the Canadian contribution from revenues other than project
revenue and project contributions.
(3) A governance agreement may provide for the following:
(a) Repayment of all or any part of any Canadian contribution
but only if repayment of the contribution is required to be paid,
repaid, or returned exclusively from project revenue or project
contributions.
(b) A provision allowing binding arbitration or other
alternative forms of dispute resolution.
(4) A governance agreement shall provide for all of the
following:
(a) If repayment under subsection (3)(a) is required, an
equitable schedule for reimbursement of Canadian contributions from
project revenue and project contributions.
(b) Provisions necessary to satisfy section 7(3).
(c) That any project comply with the national environmental
policy act of 1969, 42 USC 4321 to 4370h, or other requirements of
the federal highway administration, including, but not limited to,
any mitigation or enhancement measures included in a green sheet or
record of decision for the project pursuant to the national
environmental policy act of 1969, 42 USC 4321 to 4370h.
(d) An equitable schedule for reimbursement to the authority,
from project revenue and Canadian contributions, for any liability
incurred by the authority, a separate legal or administrative
entity, or joint venture, caused by the acts or omissions of a
Canadian public agency whether in connection with a joint venture,
a separate legal or administrative entity, or otherwise.
(5) A governance agreement shall not allow this state, the
department, or a political subdivision of this state to assume
liability for the acts or omissions of the authority or a Canadian
public agency whether in connection with a joint venture, a
separate legal or administrative entity, or otherwise.
(6) After setting aside sufficient funds to pay for its
expenses authorized by this act, the authority shall deposit any
remaining funds distributed to the authority from project revenue
into the state trunk line fund established under section 11 of 1951
PA 51, MCL 247.661.
(7) Upon executing a governance agreement, the authority shall
transmit copies of the governance agreement to the clerk of the
house of representatives and the secretary of the senate.
Sec. 13. (1) The authority may enter into a public-private
agreement concerning a crossing and project activity as provided in
this act. A public-private agreement shall include terms designed
to protect the public interest and assure accountability of a
concessionaire to the authority and a public agency of Canada. A
public-private agreement may contain terms and conditions
consistent with any limitations under this act that the authority
may determine or negotiate to facilitate the crossing and project
activity. The agreement may contain a provision allowing binding
arbitration or other alternative forms of dispute resolution.
(2) A public-private agreement shall provide for all of the
following:
(a) An initial term for the use and operation of the crossing
or project activity by a concessionaire for a period that the
authority determines is necessary for the development and financing
of the project and the economic feasibility of the public-private
agreement. The initial term shall not exceed 50 years in length
from the date on which the crossing is open to the public and
collecting user fees or other charges. After the initial term, the
authority may renew a public-private agreement or execute a new
public-private agreement for a period that the authority determines
is necessary for the development and financing of the project and
the economic feasibility of the public-private agreement so long as
that term does not exceed 50 years in length. If the operation or
maintenance of the crossing is impaired because of disaster or
disaster recovery not attributable to actions of the
concessionaire, a term may be extended for an extended period equal
to the period of impairment.
(b) The termination of the public-private agreement.
(c) A requirement that the control of the crossing revert from
the concessionaire to the authority and a public agency of Canada
at the end of the public-private agreement in a manner and
condition required under the public-private agreement and
governance agreement.
(d) That ownership of a crossing within this state is vested
in the authority. A public-private agreement may provide for the
use and occupancy of the crossing if the use and occupancy do not
interfere with the transportation and related public uses of the
crossing.
(e) A lease, license, right of entry, or other instrument for
the crossing as the authority determines is in the public interest
and is consistent with this act.
(f) The right of the authority to share in any refinancing
gains benefiting the concessionaire under the public-private
agreement.
(g) A requirement that the concessionaire cooperate with the
authority and any other appropriate public agencies on all matters
concerning the security of the crossing or disaster recovery for
the crossing.
(h) A requirement that the concessionaire submit to all
appropriate public agencies written plans for the security of the
crossing and disaster recovery for the crossing.
(i) A requirement that during a period the project is operated
by the concessionaire the concessionaire shall have control for
operational purposes over designated portions of the crossing.
(j) A requirement that the concessionaire appear and testify
without a subpoena at a legislative hearing convened and conducted
in accordance with applicable law and relating to the public-
private agreement or a project that is the subject of the public-
private agreement.
(k) The specification of the scope of the project and the
scope of control for operational purposes to be vested in the
department or the authority upon the completion of construction of
the crossing.
(3) This state, the department, the authority, a separate
legal or administrative entity created under a governance
agreement, and any political subdivision of this state are not
liable for the acts or omissions of a concessionaire.
(4) Except as otherwise provided in this act, a public-private
agreement shall impose on the concessionaire, while performing
activities in this state, the same requirements of law applicable
specifically to contracts requiring or involving the employment of
construction mechanics that are imposed upon a state officer,
board, commission, or institution entering into a contract
requiring or involving the employment of construction mechanics
with which it contracts directly for the new construction,
alteration, repair, installation, painting, improvement, or
completion of a bridge supported in whole or in part by state
funds.
(5) A public-private agreement shall establish the amounts for
which the concessionaire shall post payment and performance bonds
or other security as provided in this subsection. A public-private
agreement may authorize a concessionaire to provide a letter of
credit in lieu of a payment or performance bond. If the authority
determines that bonds or letters of credit are not reasonably
available in sufficient amounts, the authority may accept parent
corporation guarantees to supplement available payment bonds,
performance bonds, or letters of credit. The authority shall
require the posting of sufficient security to fulfill the purposes
of a payment and performance bond. In lieu of posting by a
concessionaire, or in supplementation of that posting, the
authority may accept bonds, letters of credit, and other security
from private entities other than the concessionaire that is subject
to posting so long as the purposes of a payment and performance
bond are fulfilled.
Sec. 14. A governance agreement or a public-private agreement
shall not authorize any of the following:
(a) The public being deprived of the use and benefit of the
crossing except as necessary to implement user fees or other
charges authorized by this act, to regulate the level or character
of permissible uses of the crossing, to address issues of public
safety or security, or to maintain, repair, or improve the
crossing.
(b) The department, a public agency in this state, or a
private entity in this state, being prohibited from researching,
planning, procuring, designing, financing, constructing,
maintaining, operating, improving, or repairing a transportation
project or facility in this state that is included in the
department's long-range plan in effect on the date that proposals
for the public-private agreement are submitted under section 15.
(c) A private entity in this state being prohibited from
researching, planning, procuring, designing, financing,
constructing, maintaining, operating, improving, or repairing a
transportation project or facility in this state that is otherwise
authorized under the laws of this state.
(d) This state, any of its political subdivisions, the
department, or an authority, using state funds to make an
availability payment. This subdivision does not restrict a public
agency of Canada or a separate legal or administrative entity
created under a governance agreement from making availability
payments repayable from qualified revenues if authorized under the
public-private agreement and the governance agreement.
(e) A concessionaire to sell or transfer its interest in a
public-private agreement except as provided in the public-private
agreement.
Sec. 15. (1) The authority may solicit proposals for the
selection of a concessionaire for a project using a competitive
selection process. The authority may charge and use fees to offset
the administrative costs of receiving and evaluating proposals.
Before receiving a proposal, the authority may agree to reimburse a
private entity for costs incurred in the preparation and
presentation of the 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.
(2) Costs associated with selection of a concessionaire for a
project shall only be paid from qualified revenue.
(3) Before a request for proposal is issued by the authority,
the authority shall conduct at least 1 public hearing on the
request for proposal and selection process. The authority shall use
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
these.
(4) The authority shall consider all of the following factors
in evaluating and selecting a bid or proposal to enter into a
public-private agreement:
(a) The proposed cost of and financial plan for the project.
(b) The general reputation, qualifications, industry
experience, safety record, and financial capacity of the private
entity.
(c) The proposed research, planning, procurement, design,
financing, construction, and improvement for, and repair,
maintenance, and operation of, the crossing.
(d) To the extent permitted by federal law, the proposed plan
of the private entity to hire legal United States residents and
citizens for work relating to the project in this state.
(e) Evidence that a private entity has the capacity to obtain
all required payment and performance bonding, liability insurance,
and errors and omission insurance.
(f) Any other factors that are proper and consistent with the
provisions of this act.
(5) The authority may select multiple concessionaires for a
project if it is determined by the authority to be in the public
interest to do so.
(6) At the request of a private entity, the authority may
acknowledge as confidential and exempt from disclosure trade
secrets or proprietary commercial or financial information provided
by the private entity as part of a proposal under this section.
Information acknowledged by the authority as confidential is exempt
from disclosure, including, but not limited to, disclosure under
the freedom of information act, 1976 PA 442, MCL 15.231 to 15.246.
Unless considered proprietary information by the private entity,
the authority shall not acknowledge routine financial information
as confidential. If the authority acknowledges information as
confidential, the authority shall provide a description of the
information to which exemption from disclosure will extend. The
authority may agree to keep confidential and exempt from
disclosure, proprietary, commercial, or other confidential
information that a concessionaire is required by the public-
private agreement to provide to the authority. A bid or proposal
from a private entity for a project may be exempted from disclosure
by the authority until the authority completes all negotiations and
selects the concessionaire with which it intends to enter into a
public-private agreement and the final public-private agreement
with the concessionaire is effective.
(7) After a final public-private agreement is effective, a bid
or proposal is a public record subject to public disclosure,
excluding any confidential information exempted from disclosure by
the authority under this act. After a final public-private
agreement is effective, the authority shall transmit a copy of it
to members of the legislature by transmitting copies to the clerk
of the house of representatives and the secretary of the senate,
excluding any confidential information exempted from disclosure by
the authority under this act.
(8) A proposal or bid submitted by a private entity under this
section shall include an executive summary in a form determined by
the authority summarizing the major elements of the proposal
excluding the price, financing plan, or other trade secrets or
confidential proprietary commercial or financial information that
the private entity seeks to exempt from disclosure. Upon
submission, the executive summary is a public record subject to
public disclosure and shall be posted on the website maintained for
the authority by the department.
(9) Submission of a solicited or unsolicited proposal
constitutes consent for the authority to use the information and
ideas provided by a private entity for a project or to seek or
enter into a public-private agreement, including to solicit
competing proposals, unless the authority agrees otherwise in
writing executed by the authority before the submission.
(10) The authority or another person acting in accordance with
a public-private agreement is not liable for the use of ideas and
information provided by a private entity for purposes of seeking or
entering into a public-private agreement.
Sec. 17. (1) The authority may provide for the issuance of
bonds. The principal of and interest on the bonds are payable
solely from project revenue and project contributions and do not
constitute a general or moral obligation of this state. The bonds
are not a debt, moral obligation, or liability of this state or any
political subdivision of this state and do not constitute or create
any indebtedness, liability, or obligation of this state or any
political subdivision of this state. Bonds authorized under this
act are not a pledge of the full faith and credit of this state or
any political subdivision of this state. Each bond shall contain on
its face a statement to the effect that neither this state nor the
authority is obligated to pay the principal amount of the bonds or
any interest on the bonds from any source other than project
revenue and project contributions and that neither the full faith
and credit nor the taxing power of this state or any political
subdivision of this state is pledged to the payment of the
principal or interest.
(2) The only bonds that shall be issued by a governmental
entity in this state for project financing are the bonds authorized
under this act. Consistent with the requirements of subsection (1),
a bond may be issued by the authority only for a project to take
advantage of financing, credit, or tax exemption opportunities
authorized by state or federal law and for providing funds for
project costs or the refunding of any bonds issued under this act,
together with any costs associated with the transaction. For
purposes of this subsection, notwithstanding other law to the
contrary, the department may designate the authority as an eligible
governmental agency for purposes of applicable state and federal
law, including, but not limited to, 1951 PA 51, MCL 247.651 to
247.675. At the request of the authority, the department may enter
into agreements under which the department will seek and serve as a
conduit for any financing, credit, or tax exemption opportunities
authorized by state or federal law.
(3) Bonds issued under this section are payable solely from
the authority's share under the governance agreement or the public-
private agreement of any of the following source of funds:
(a) Project revenue and project contributions.
(b) The proceeds of the bond instruments or of bonds sold to
finance the refunding of the bonds.
(c) The proceeds of any financial instrument providing credit,
liquidity, or security for the bonds described in subsection (6).
(d) Investment earnings on any of the sources of funds
described in subdivisions (a) to (c).
(4) To the extent required by applicable law, all proceeds
from the authority's share under the governance agreement or the
public-private agreement of the sources of payments specified in
subsection (3) are appropriated to the authority for the payment of
the obligations, for payment of project costs, or for payment of
principal, interest, or premium on bonds issued by the authority.
The action of the authority in issuing the bonds creates a
statutory lien upon project revenue and project contributions and
other revenue described in subsection (3) as provided by the
authority, pledged for the payment of the principal, interest, or
premium on the bonds, to and in favor of the holders of the bonds.
The statutory lien shall be a first priority lien, paramount and
superior to all other liens and interests of any kind that arise or
are created after the issuance of the bonds, unless otherwise
specified by the authority. Project revenue and project
contributions shall remain subject to the statutory lien until all
principal, interest, and premium on the bonds are paid or provided
for, as specified by the authority at the time of the issuance of
the bonds. The statutory lien may be enforced by or on behalf of
the holders of the bonds as to the use of project revenue and
project contributions, to pay principal, interest, and premium on
the bonds or other financial obligations, but the lien shall not be
construed to give the holders authorization to compel the sale of a
project or a crossing.
(5) In determining whether to issue bonds under this act, the
authority may, by duly adopted action, do 1 or more of the
following:
(a) Authorize or enter into trust indentures or agreements,
insurance contracts, letters of credit, lines of credit,
commitments to purchase obligations, remarketing agreements,
reimbursement agreements, and any other transaction, agreement, or
instrument providing for credit, liquidity, or security for the
timely payment of principal, interest, and premium on the bonds or
the purchase price of the bonds. Consistent with this act, an
instrument may contain covenants by the authority with respect to
the bonds and the security for the payment of the bonds and
remedies for defaults, including, but not limited to, the
appointment of a receiver for a project. A bond may further provide
that money and funds subject to a statutory lien authorized by
subsection (4) be segregated and held in a separate fund or
account, which shall not be levied upon, taken, sequestered, or
applied for any purpose other than a purpose for which the
statutory lien was created.
(b) Authorize payment from the proceeds of the bonds or from
the sources of payment detailed in subsection (3) of the costs of
acquiring and maintaining any of the transactions, agreements, or
instruments described in subdivision (a), and of reimbursing any
draws or advances, with interest, on any credit or liquidity
facility.
(c) Authorize or provide for 1 or more specified officers,
employees, or agents of the authority, but only within limitations
contained in the authorizing action, to do 1 or more of the
following for and on behalf of the authority:
(i) Sell, deliver, and receive payment for the bonds.
(ii) Refund bonds by the delivery of new bonds whether or not
the bonds to be refunded have matured or are subject to redemption
or purchase before maturity on the date of delivery of the
refunding bonds.
(iii) Buy, hold, and sell bonds. The buying, holding, or selling
shall not cause the cancellation or merger of the bonds unless
specified otherwise by the authority.
(iv) Approve interest rates or methods for fixing interest
rates, prices, discounts, maturities, principal amounts,
denominations, dates of issuance, interest payment dates,
redemption or tender rights and obligations to be exercised by the
issuer or the holder of the bonds, places of delivery and payment,
and other ministerial matters and procedures necessary to complete
the transactions authorized by the authority.
(6) Bonds may be issued with the terms specified by the
authority consistent with the requirements of this act. Among other
terms that may be specified are any of the following:
(a) Maturity dates of the bonds, which shall not exceed 50
years from the later of the date the bonds are issued or the date
the project financed with the proceeds of the bonds is opened to
the public and the collection of user fees first occurs.
(b) Tender rights.
(c) Procedures for the holders of the bonds.
(d) Provisions for remarketing any bonds tendered.
(e) The nature of interest to be paid on the bonds, which may
be fixed or variable rates of interest or no stated interest, but
with payments of principal at amounts higher than the amounts paid
by the original purchaser for the bonds.
(7) The yield on any bonds issued under this act, taking into
account the price at which the bonds are sold, the stated interest
rates, and the amounts at which the bonds are to be paid at the
scheduled maturity date, shall not exceed the maximum rate
permitted by the revised municipal finance act, 2001 PA 34, MCL
141.2101 to 141.2821.
(8) In connection with outstanding bonds, or in connection
with the issuance or proposed future issuance of bonds, in each
case issued or to be issued under this act, the authority may
authorize the execution and delivery of agreements providing for
interest rate exchanges or swaps, hedges, caps, collars, and
floors, or similar arrangements. The obligations of the authority
under the agreements, including termination payments, shall not
constitute a pledge of the faith and credit or indebtedness of this
state or any political subdivision of this state but shall be made
payable from and secured by a pledge of and lien on the same
sources of funds as the bonds in relation to which the agreements
are entered into, or from any other sources of funds available for
the payment of bonds under this act.
(9) All expenses incurred by the authority in carrying out
this section are payable only from revenues provided or to be
provided under this act. This act does not authorize the authority
to incur any indebtedness or liability on behalf of or payable by
this state. This act does not authorize the authority to levy a
tax.
(10) Except as otherwise provided in this section, bonds
issued under this act are not subject to the revised municipal
finance act, 2001 PA 34, MCL 141.2101 to 141.2821.
(11) The issuance of bonds under this section is subject to
the agency financing reporting act, 2002 PA 470, MCL 129.171 to
129.177. The issuance of bonds under this act is not subject to a
referendum or approval by voters.
(12) Bonds and other financial instruments issued under this
act, and any interest on the bonds or financial instruments, are
exempt from taxation by this state or any other taxing authority
within this state.
(13) This act does not limit or prevent a concessionaire or
other private entity from issuing debt securities, issuing
obligations, incurring indebtedness, or entering into other
arrangements relating to financing a project.
Sec. 19. Unless explicitly authorized in this act, a
governance agreement or a public-private agreement under this act
shall not require this state, the department, the authority, a
separate legal or administrative entity created under a governance
agreement, or any political subdivision to expend any state or
local funds, including, but not limited to, availability payments
for project costs.
Sec. 21. (1) User fees and other charges collected under this
act shall be determined and adjusted with due consideration for the
amount required to pay project costs, including reserves, to pay
bond and other authorized obligations, to maintain reserves for
those purposes, and to repay any Canadian contributions, as
provided in the governance agreement and public-private agreement.
(2) The proceedings and decisions of a separate legal or
administrative entity created by a governance agreement, and the
public-private agreement, user fees, and other charges imposed by
the authority, are not subject to approval, regulation, or taxation
by any other state or local governmental entity in this state.
(3) The activities and property of an authority under this act
are exempt from taxation by this state or a political subdivision
of this state. The activities and property of a separate legal or
administrative entity created under a governance agreement are
exempt from taxation by this state or a political subdivision of
this state. This act does not exempt the activities or property of
a concessionaire from taxation under other applicable laws.
Sec. 23. A duly constituted and authorized legislative
committee, including, but not limited to, the appropriations
committees of the house of representatives or the senate, or the
transportation committees of the house of representatives or the
senate, or any successor committees, may conduct legislative
oversight hearings on activities of the authority at any time,
including, but not limited to, activities relating to a public-
private agreement or a governance agreement. The authority, the
department, political subdivisions of the state, and all private
parties to a public-private agreement shall actively cooperate and
shall attend the hearing and provide live testimony at the hearing
without a subpoena.
Sec. 25. (1) All law enforcement officers of this state and
local units of government in which all or part of a crossing is
located have the same powers and jurisdiction within the limits of
a crossing as they have in their respective areas of jurisdiction
to enforce traffic and motor vehicle laws. An authorized emergency
vehicle and the occupants of the authorized emergency vehicle shall
be afforded access to a crossing while in the performance of an
official duty without the payment of a user fee or other charge. As
used in this subsection, "authorized emergency vehicle" means that
term as defined in section 2 of the Michigan vehicle code, 1949 PA
300, MCL 257.2.
(2) Punishment for violations of traffic and motor vehicle
laws within the limits of a crossing shall be as generally
prescribed by law.
(3) A person who fails to pay a user fee imposed for use of a
crossing is responsible for a civil infraction and is subject to a
civil fine of $50.00. In addition, the person shall pay the
crossing operator 2 times the amount of the user fee. If that
amount remains unpaid for 180 days after the person's use of the
crossing, the department, the authority, or a concessionaire 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) During the period that a person owes and has failed to pay
charges, fees, and costs under subsection (3), the person and a
motor vehicle used by the person may be barred from using the
crossing.
(5) 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 crossing without payment of the
applicable user fee, 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 crossing, who failed to pay the user fee, 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, establishing that the vehicle described in
the violation was in the possession of, custody of, or was being
operated or used by the lessee or renter of the leased vehicle at
the time of violation, the lessee or renter of the leased vehicle
and not the leased vehicle owner is the person responsible under
this section.
(6) The owner of a vehicle alleged to have used a crossing
without paying an applicable user fee may assert as an affirmative
defense that the vehicle in question, at the time of the use of the
crossing, was in the possession of a person whom the owner had not
knowingly permitted to operate the vehicle.
Sec. 27. (1) Except as otherwise provided in this act, this
state, the department, the authority, a separate legal or
administrative entity created under this act, or a political
subdivision shall not expend any state funds for project costs
incurred after the effective date of this act.
(2) The department may expend state and federal funds for the
administrative costs of eminent domain proceedings and for
professional fees, administrative costs, planning costs, and
procurement costs of the authority or the department related to a
project. The department may expend state and federal funds for the
cost of maintaining and repairing a highway interchange or other
highway facility, other than the bridge or border inspection plaza,
that are included within a crossing if the interchange or other
facility is part of a state trunk line and the maintenance and
repair of the interchange is performed after the date the crossing
is open for public transportation.
(3) A governance agreement or public-private agreement shall
not require a pledge of the full faith and credit of this state or
a political subdivision of this state.
(4) The legislative council shall report to the governor and
the senate and house of representatives standing committees on
transportation issues by September 30, 2011 on the implementation
status of this act. For the fiscal year ending September 30, 2011,
$10,000.00 is appropriated to the legislative council to perform
and prepare this report.
(5) As used in this section and section 19, "state funds" does
not include any of the following:
(a) Project revenues.
(b) Canadian contribution.
(c) Project contribution.
Enacting section 1. This act is repealed effective January 1,
2015 if the authority has not entered into a governance agreement
under this act on or before December 31, 2014, unless by December
30, 2014, the director of the department files with the secretary
of state a letter stating that the failure to enter into a
governance agreement is due in whole or in part to legal
challenges, litigation, or other factors beyond the control of the
authority.
Enacting section 2. The legislature intends all of the
following:
(a) That this act is authorized under section 5 of article III
of the state constitution of 1963 and advances a legitimate public
purpose.
(b) That this act authorizes this state, the department, the
authority, and a separate legal or administrative entity created by
a governance agreement to participate in a project under this act
relating to a bridge and approaches that will connect this state
with Canada and authorizes the collection of tolls for its use
pursuant to 33 USC 535.
Enacting section 3. As provided in 1846 RS 1, MCL 8.5, this
act is severable. If any portion of this act or the application of
this act to any person or circumstances is found to be invalid by a
court, the invalidity of that portion shall not affect the
remaining portions or applications that can be given effect without
the invalid portion or application, provided the remaining portions
are not determined by the court to be inoperable.
Enacting section 4. This act takes effect June 1, 2011.