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605 ILCS 130/ Public Private Agreements for the Illiana Expressway Act.

    (605 ILCS 130/1)
    Sec. 1. Short title. This Act may be cited as the Public Private Agreements for the Illiana Expressway Act.
(Source: P.A. 96‑913, eff. 6‑9‑10.)

    (605 ILCS 130/5)
    Sec. 5. Legislative findings.
    (a) The State of Illinois and the State of Indiana are engaged in collaborative planning efforts to build a new interstate highway connecting Interstate Highway 55 in northeastern Illinois to Interstate Highway 65 in northwestern Indiana to serve the public at large.
    (b) The Illiana Expressway will promote development and investment in the State of Illinois and serve as a critical transportation route in the region.
    (c) Public private agreements between the State of Illinois and one or more private entities to develop, finance, construct, manage, or operate the Illiana Expressway have the potential of maximizing value and benefit to the People of the State of Illinois and the public at large.
    (d) Public private agreements may enable the Illiana Expressway to be developed, financed, constructed, managed, or operated in an entrepreneurial and business‑like manner.
    (e) In the event the State of Illinois enters into one or more public private agreements to develop, finance, construct, manage, or operate the Illiana Expressway, the private parties to the agreements should be accountable to the People of Illinois through a comprehensive system of oversight, regulation, auditing, and reporting.
    (f) It is the intent of this Act to use Illinois design professionals, construction companies, and workers to the greatest extent permitted by law by offering them the right to compete for this work.
(Source: P.A. 96‑913, eff. 6‑9‑10.)

    (605 ILCS 130/10)
    Sec. 10. Definitions. As used in this Act:
    "Agreement" means a public private agreement.
    "Contractor" means a person that has been selected to enter or has entered into a public private agreement with the Department on behalf of the State for the development, financing, construction, management, or operation of the Illiana Expressway pursuant to this Act.
    "Department" means the Illinois Department of Transportation.
    "Illiana Expressway" means the fully access‑controlled interstate highway connecting Interstate Highway 55 in northeastern Illinois to Interstate Highway 65 in northwestern Indiana, which may be operated as a toll or non‑toll facility.
    "Metropolitan planning organization" means a metropolitan planning organization designated under 23 U.S.C. Section 134.
    "Offeror" means a person that responds to a request for proposals under this Act.
    "Person" means any individual, firm, association, joint venture, partnership, estate, trust, syndicate, fiduciary, corporation, or any other legal entity, group, or combination thereof.
    "Public private agreement" means an agreement or contract between the Department on behalf of the State and all schedules, exhibits, and attachments thereto, entered into pursuant to a competitive request for proposals process governed by the Illinois Procurement Code and rules adopted under that Code and this Act, for the development, financing, construction, management, or operation of the Illiana Expressway pursuant to this Act.
    "Revenues" means all revenues including but not limited to income; user fees; earnings; interest; lease payments; allocations; moneys from the federal government, the State, and units of local government, including but not limited to 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 the financing, development, construction, management, or operation of the Illiana Expressway.
    "State" means the State of Illinois.
    "Secretary" means the Secretary of the Illinois Department of Transportation.
    "Unit of local government" has the meaning ascribed to that term in Article VII, Section 1 of the Constitution of the State of Illinois, and, for purposes of this Act, includes school districts.
    "User fees" means the tolls, rates, fees, or other charges imposed by the State or the contractor for use of all or part of the Illiana Expressway.
(Source: P.A. 96‑913, eff. 6‑9‑10.)

    (605 ILCS 130/15)
    Sec. 15. Public private agreement authorized.
    (a) Notwithstanding any provision of law to the contrary, the Department on behalf of the State may, pursuant to a competitive request for proposals process governed by the Illinois Procurement Code and rules adopted under that Code and this Act, enter into one or more public private agreements with one or more contractors to develop, finance, construct, manage, or operate the Illiana Expressway on behalf of the State, and further pursuant to which the contractors may receive certain revenues including user fees in consideration of the payment of moneys to the State for that right.
    (b) Before taking any action in connection with the development, financing, maintenance, or operation of the Illiana Expressway that is not authorized by an interim agreement under Section 30 of this Act, a contractor shall enter into a public private agreement.
    (c) The term of a public private agreement, including all extensions, shall be no more than 99 years.
    (d) The term of a public private agreement may be extended but only if the extension is specifically authorized by the General Assembly by law.
(Source: P.A. 96‑913, eff. 6‑9‑10.)

    (605 ILCS 130/17)
    Sec. 17. Procurement; prequalification. The Department may establish a process for prequalification of offerors. If the Department does create such a process, it shall: (i) provide a public notice of the prequalification at least 30 days prior to the date on which applications are due; (ii) set forth requirements and evaluation criteria in order to become prequalified; (iii) determine which offerors that have submitted prequalification applications, if any, meet the requirements and evaluation criteria; and (iv) allow only those offerors that have been prequalified to respond to the request for proposals.
(Source: P.A. 96‑913, eff. 6‑9‑10.)

    (605 ILCS 130/20)
    Sec. 20. Procurement; request for proposals process.
    (a) Notwithstanding any provision of law to the contrary, the Department on behalf of the State shall select a contractor through a competitive request for proposals process governed by the Illinois Procurement Code and rules adopted under that Code and this Act.
    (b) The competitive request for proposals process shall, at a minimum, solicit statements of qualification and proposals from offerors.
    (c) The competitive request for proposals process shall, at a minimum, take into account the following criteria:
        (1) The offeror's plans for the Illiana Expressway

project;

(2) The offeror's current and past business practices;         (3) The offeror's poor or inadequate past performance

in developing, financing, constructing, managing, or operating highways or other public assets;

(4) The offeror's ability to meet and past

performance in meeting or exhausting good faith efforts to meet the utilization goals for business enterprises established in the Business Enterprise for Minorities, Females, and Persons with Disabilities Act;

(5) The offeror's ability to comply with and past

performance in complying with Section 2‑105 of the Illinois Human Rights Act; and

(6) The offeror's plans to comply with the Business

Enterprise for Minorities, Females, and Persons with Disabilities Act and Section 2‑105 of the Illinois Human Rights Act.

(d) The Department shall retain the services of an advisor or advisors with significant experience in the development, financing, construction, management, or operation of public assets to assist in the preparation of the request for proposals.     (e) The Department shall not include terms in the request for proposals that provide an advantage, whether directly or indirectly, to any contractor presently providing goods, services, or equipment to the Department.     (f) The Department shall select at least 2 offerors as finalists. The Department shall submit the offerors' statements of qualification and proposals to the Commission on Government Forecasting and Accountability and the Procurement Policy Board, which shall, within 30 days of the submission, complete a review of the statements of qualification and proposals and, jointly or separately, report on, at a minimum, the satisfaction of the criteria contained in the request for proposals, the qualifications of the offerors, and the value of the proposals to the State. The Department shall not select an offeror as the contractor for the Illiana Expressway project until it has received and considered the findings of the Commission on Government Forecasting and Accountability and the Procurement Policy Board as set forth in their respective reports.     (g) Before awarding a public private agreement to an offeror, the Department shall schedule and hold a public hearing or hearings on the proposed public private agreement and publish notice of the hearing or hearings at least 7 days before the hearing and in accordance with Section 4‑219 of the Illinois Highway Code. The notice must include the following:         (1) the date, time, and place of the hearing and the

address of the Department;

(2) the subject matter of the hearing;         (3) a description of the agreement that may be

awarded; and

(4) the recommendation that has been made to select

an offeror as the contractor for the Illiana Expressway project.

At the hearing, the Department shall allow the public to

be heard on the subject of the hearing.

(h) After the procedures required in this Section have been completed, the Department shall make a determination as to whether the offeror should be designated as the contractor for the Illiana Expressway project and shall submit the decision to the Governor and to the Governor's Office of Management and Budget. After review of the Department's determination, the Governor may accept or reject the determination. If the Governor accepts the determination of the Department, the Governor shall designate the offeror for the Illiana Expressway project. (Source: P.A. 96‑913, eff. 6‑9‑10.)

    (605 ILCS 130/25)
    Sec. 25. Provisions of the public private agreement.
    (a) The public private agreement shall include all of the following:
        (1) The term of the public private agreement that is

consistent with Section 15 of this Act;

(2) The powers, duties, responsibilities,

obligations, and functions of the Department and the contractor;

(3) Compensation or payments to the Department;         (4) Compensation or payments to the contractor;         (5) A provision specifying that the Department:             (A) has ready access to information regarding the

contractor's powers, duties, responsibilities, obligations, and functions under the public private agreement;

(B) has the right to demand and receive

information from the contractor concerning any aspect of the contractor's powers, duties, responsibilities, obligations, and functions under the public private agreement; and

(C) has the authority to direct or countermand

decisions by the contractor at any time;

(6) A provision imposing an affirmative duty on the

contractor to provide the Department with any information the contractor reasonably believes the Department would want to know or would need to know to enable the Department to exercise its powers, carry out its duties, responsibilities, and obligations, and perform its functions under this Act or the public private agreement or as otherwise required by law;

(7) A provision requiring the contractor to provide

the Department with advance notice of any decision that bears significantly on the public interest so the Department has a reasonable opportunity to evaluate and countermand that decision pursuant to this Section;

(8) A requirement that the Department monitor and

oversee the contractor's practices and take action that the Department considers appropriate to ensure that the contractor is in compliance with the terms of the public private agreement;

(9) The authority of the Department to enter into

contracts with third parties pursuant to Section 50 of this Act;

(10) A provision governing the contractor's authority

to negotiate and execute subcontracts with third parties;

(10.5) A provision stating that, in the event the

contractor finds it necessary, proper, or desirable to enter into subcontracts with one or more design‑build entities, then it must follow a selection process that is, to the greatest extent possible, identical to the selection process contained in the Design‑Build Procurement Act;

(11) The authority of the contractor to impose user

fees and the amounts of those fees, including the authority of the contractor to use congestion pricing, pursuant to which higher tolls rates are imposed during times or in locations of increased congestion;

(12) A provision governing the deposit and allocation

of revenues including user fees;

(13) A provision governing rights to real and

personal property of the State, the Department, the contractor, and other third parties;

(14) A provision stating that the contractor must,

pursuant to Section 75 of this Act, finance an independent audit if the construction costs under the contract exceed $50,000,000;

(15) A provision regarding the implementation and

delivery of a comprehensive system of internal audits;

(16) A provision regarding the implementation and

delivery of reports, which must include a requirement that the contractor file with the Department, at least on an annual basis, financial statements containing information required by generally accepted accounting principles (GAAP);

(17) Procedural requirements for obtaining the prior

approval of the Department when rights that are the subject of the agreement, including but not limited to development rights, construction rights, property rights, and rights to certain revenues, are sold, assigned, transferred, or pledged as collateral to secure financing or for any other reason;

(18) Grounds for termination of the agreement by the

Department or the contractor and a restatement of the Department's rights under Section 35 of this Act;

(19) A requirement that the contractor enter into a

project labor agreement pursuant to Section 100 of this Act;

(19.5) A provision stating that construction

contractors shall comply with the requirements of Section 30‑22 of the Illinois Procurement Code pursuant to Section 100 of this Act;

(20) Timelines, deadlines, and scheduling;         (21) Review of plans, including development,

financing, construction, management, or operations plans, by the Department;

(22) Inspections by the Department, including

inspections of construction work and improvements;

(23) Rights and remedies of the Department in the

event that the contractor defaults or otherwise fails to comply with the terms of the agreement;

(24) A code of ethics for the contractor's officers

and employees; and

(25) Procedures for amendment to the agreement.     (b) The public private agreement may include any or all of the following:         (1) A provision regarding the extension of the

agreement that is consistent with Section 15 of this Act;

(2) Cash reserves requirements;         (3) Delivery of performance and payment bonds or

other performance security in a form and amount that is satisfactory to the Department;

(4) Maintenance of public liability insurance;         (5) Maintenance of self‑insurance;         (6) Provisions governing grants and loans, pursuant

to which the Department may agree to make grants or loans for the development, financing, construction, management, or operation of the Illiana Expressway 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;

(7) Reimbursements to the Department for work

performed and goods, services, and equipment provided by the Department; and

(8) All other terms, conditions, and provisions

acceptable to the Department that the Department deems necessary and proper and in the public interest.

(Source: P.A. 96‑913, eff. 6‑9‑10.)

    (605 ILCS 130/30)
    Sec. 30. Interim agreements.
    (a) Prior to or in connection with the negotiation of the public private agreement, the Department may enter into an interim agreement with the contractor.
    (b) The interim agreement may not authorize the contractor to perform construction work prior to the execution of the public private agreement.
    (c) The interim agreement may include any or all of the following:
        (1) Timelines, deadlines, and scheduling;
        (2) Compensation including the payment of costs and

fees in the event the Department terminates the interim agreement or declines to proceed with negotiation of the public private agreement;

(3) A provision governing the contractor's authority

to commence activities related to the Illiana Expressway project including but not limited to project planning, advance right‑of‑way acquisition, design and engineering, environmental analysis and mitigation, surveying, conducting studies including revenue and transportation studies, and ascertaining the availability of financing;

(4) Procurement procedures;         (5) A provision governing rights to real and personal

property of the State, the Department, the contractor, and other third parties;

(6) All other terms, conditions, and provisions

acceptable to the Department that the Department deems necessary and proper and in the public interest.

(d) The Department may enter into one or more interim agreements with one or more contractors if the Department determines in writing that it is in the public interest to do so. (Source: P.A. 96‑913, eff. 6‑9‑10.)

    (605 ILCS 130/35)
    Sec. 35. Termination of the Public Private Agreement. The Department may terminate a public private agreement or interim agreement under Section 30 of this Act if the contractor or any executive employee of the contractor is found guilty of any criminal offense related to the conduct of its business or the regulation thereof in any jurisdiction. For purposes of this Section, an "executive employee" is the President, Chairman, Chief Executive Officer, or Chief Financial Officer; any employee with executive decision‑making authority over the long‑term or day‑to‑day affairs of the contractor; or any employee whose compensation or evaluation is determined in whole or in part by the award of the public private agreement.
(Source: P.A. 96‑913, eff. 6‑9‑10.)

    (605 ILCS 130/40)
    Sec. 40. Public private agreement proceeds. After the payment of all transaction costs, including payments for legal, accounting, financial, consultation, and other professional services, all moneys received by the State as compensation for the public private agreement shall be deposited into the Illiana Expressway Proceeds Fund, which is hereby created as a special fund in the State treasury. Expenditures may be made from the Fund only in the manner as appropriated by the General Assembly by law.
(Source: P.A. 96‑913, eff. 6‑9‑10.)

    (605 ILCS 130/45)
    Sec. 45. User fees. No user fees may be imposed by the contractor except as set forth in the public private agreement.
(Source: P.A. 96‑913, eff. 6‑9‑10.)

    (605 ILCS 130/47)
    Sec. 47. Selection of professional design firms. Notwithstanding any provision of law to the contrary, the selection of professional design firms by the Department or the contractor shall comply with the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act.
(Source: P.A. 96‑913, eff. 6‑9‑10.)

    (605 ILCS 130/50)
    Sec. 50. Other contracts. The Department may, pursuant to the Illinois Procurement Code and rules adopted under that Code, award contracts for goods, services, or equipment to persons other than the contractor for goods, services, or equipment not provided for in the public private agreement.
(Source: P.A. 96‑913, eff. 6‑9‑10.)

    (605 ILCS 130/55)
    Sec. 55. Planning for the Illiana Expressway project. The Illiana Expressway project shall be subject to all applicable planning requirements otherwise required by law, including land use planning, regional planning, transportation planning, and environmental compliance requirements.
(Source: P.A. 96‑913, eff. 6‑9‑10.)

    (605 ILCS 130/60)
    Sec. 60. Illinois Department of Transportation; reporting requirements and information requests.
    (a) The Department shall submit written monthly progress reports to the Procurement Policy Board and the General Assembly on the Illiana Expressway project. The report shall include the status of any public private agreements or other contracting and any ongoing or completed studies. The Procurement Policy Board may determine the format for the written monthly progress reports.
    (b) The Department shall also respond promptly in writing to all inquiries and comments of the Procurement Policy Board with respect to any conduct taken by the Department to implement, execute, or administer the provisions of this Act.
    (c) Upon request, the Department shall appear and testify before the Procurement Policy Board and produce information requested by the Procurement Policy Board.
    (d) At least 30 days prior to the beginning of the Department's fiscal year, the Department shall prepare an annual written progress report on the Illiana Expressway project. The report shall include the status of any public private agreements or other contracting and any ongoing or completed studies. The report shall be delivered to the Procurement Policy Board and each county, municipality, and metropolitan planning organization whose territory includes or lies within 5 miles from a proposed or existing Illiana Expressway project site.
(Source: P.A. 96‑913, eff. 6‑9‑10.)

    (605 ILCS 130/65)
    Sec. 65. Illinois Department of Transportation; publication requirements.
    (a) The Department shall publish a notice of the execution of the public private agreement on its website and in a newspaper of general circulation within the county or counties whose territory includes or lies within 5 miles from a proposed or existing Illiana Expressway project site.
    (b) The Department shall publish the full text of the public private agreement on its website.
(Source: P.A. 96‑913, eff. 6‑9‑10.)

    (605 ILCS 130/70)
    Sec. 70. Electronic toll collection systems. Any electronic toll collection system used on the Illiana Expressway must be compatible with the electronic toll collection system used by the Illinois State Toll Highway Authority.
(Source: P.A. 96‑913, eff. 6‑9‑10.)

    (605 ILCS 130/75)
    Sec. 75. Independent audits. If the public private agreement provides for the construction of all or part of the Illiana Expressway project and the estimated construction costs under the agreement exceed $50,000,000, the Department must also require the contractor to finance an independent audit of any and all traffic and cost estimates associated with the agreement as well as a review of all public costs and potential liabilities to which taxpayers could be exposed (including improvements to other transportation facilities that may be needed as a result of the agreement, failure by the contractor to reimburse the Department for services provided, and potential risk and liability in the event of default on the agreement or default on other types of financing). The independent audit must be conducted by an independent consultant selected by the Department.
(Source: P.A. 96‑913, eff. 6‑9‑10.)

    (605 ILCS 130/80)
    Sec. 80. Property acquisition. The Department may acquire property for the Illiana Expressway project using the powers granted to it in the Illinois Highway Code. The Department may not exercise the power of quick take in connection with the Illiana Expressway project.
(Source: P.A. 96‑913, eff. 6‑9‑10.)

    (605 ILCS 130/85)
    Sec. 85. Rights of the Illinois Department of Transportation upon expiration or termination of the agreement.
    (a) Upon the termination or expiration of the public private agreement, including a termination for default, the Department shall have the right to take over the Illiana Expressway project and to succeed to all of the right, title, and interest in the Illiana Expressway project, subject to any liens on revenues previously granted by the contractor to any person providing financing for the Illiana Expressway project.
    (b) If the Department elects to take over the Illiana Expressway project as provided in subsection (a) of this Section, the Department may, without limitation, do the following:
        (1) develop, finance, construct, maintain, or operate

the project, including through another public private agreement entered into in accordance with this Act; or

(2) impose, collect, retain, and use user fees, if

any, for the project.

(c) If the Department elects to take over the Illiana Expressway project as provided in subsection (a) of this Section, the Department may, without limitation, 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 Illiana Expressway project;

(2) permit a contractor or third party to receive

some or all of the revenues under the public private agreement entered into under this Act;

(3) pay development costs of the Illiana Expressway;         (4) pay current operation costs of the Illiana

Expressway; and

(5) pay the contractor for any compensation or

payment owing upon termination.

(d) All real property acquired as a part of the Illiana Expressway shall be held in the name of the State of Illinois upon termination of the Illiana Expressway project.     (e) The full faith and credit of the State or any political Copyright © 2012-2022 Laws9.Com All rights reserved. Contact Us | About Us | Terms | Privacy