November 25, 2008, Introduced by Rep. Gonzales and referred to the Committee on Transportation.
A bill to provide for transportation facilities and
authorizing agreements between the department of transportation and
governmental entities to create transportation authorities and
authorizing public-private agreements relating to researching,
planning, studying, designing, developing, financing, acquiring,
constructing, tolling, operating, or maintaining a transportation
facility, or any combination of those activities, or to other
arrangements for the creation and operation of 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
or an authority to exercise powers and immunities in furtherance of
those purposes.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 1. This act shall be known and may be cited as the
"public-private transportation facility act".
Sec. 2. (1) "Authority" means an authority created by the
department under this act or an intergovernmental entity created by
the department and at least 1 other unit, agency, or
instrumentality of government in Michigan, another state, or
Canada, to provide for or govern a transportation facility.
(2) "Commission" means the state transportation commission.
(3) "Department" means the Michigan department of
transportation.
(4) " Instrumentality of government" means a legal entity
created or empowered by a unit of government to carry out functions
that are commonly carried out by units of government.
(5) "Operator" means a private entity that has entered into a
public-private agreement under this act.
(6) "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 business entity.
(7) "Public agency" means the department or an authority.
(8) "Public-private agreement" means an agreement between a
private entity and a public agency that relates to researching,
planning, studying, designing, developing, financing, acquiring,
constructing, tolling, operating, or maintaining a transportation
facility, or any combination of those activities.
(9) "Transportation facility" means any new or existing
highway, road, bridge, tunnel, overpass, ramp, interchange, ferry,
airport, vehicle parking facility, port facility, locks facility,
rail facility, intermodal or other public transit facility,
international or interstate border crossing, or any other
equipment, rolling stock, site, or facility used in the
transportation of persons, goods, substances, information, or
matter of any kind, and any building, structure, parking area,
appurtenance, or other property necessary or desirable for such
facility.
(10) "Utility" means a privately, publicly, or cooperatively
owned line, pipeline, facility, or system for producing,
transmitting, or distributing communications, cable television,
power, electricity, light, heat, gas, oil, crude products, water,
steam, waste, storm water not connected with highway drainage, or
any other similar facility or system, including a fire or police
signal system or street lighting system, which directly or
indirectly serves the public.
Sec. 3. (1) A public agency may enter into an agreement with a
private entity, a unit, agency, or instrumentality of government in
Michigan, another state, or Canada, or an authority, 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 ensure accountability.
(2) This act does not authorize a public agency to enter into
an agreement to construct a new international bridge between Wayne
county, Michigan and Windsor, Ontario. A new international bridge
between Wayne county, Michigan and Windsor, Ontario is not a
transportation facility under this act.
(3) With approval of the state transportation commission, the
department may create an authority to exercise the powers and
immunities provided by this act for an authority except as limited
by the department in the terms of its creation. An authority
created by the department is a public benefit agency and
instrumentality of the state with all the powers of a public
corporation for the purposes of contracting, researching, planning,
studying, designing, developing, financing, acquiring,
constructing, tolling, governing, operating, or maintaining a
transportation facility or any combination of those activities. The
terms of creation shall be filed with the secretary of state and
remain subject to modification by the department with approval of
the state transportation commission.
(4) An agreement under subsection (1) may provide for the
creation of an authority. Under such terms as may be specified, the
agreement may limit or confer powers on the authority as could have
been exercised by the authority under this act, or by the
department under this act or any other law in regard to a
transportation facility. An authority is a governmental entity
cloaked with the same immunity from tort liability as the
department.
(5) The department or other unit, agency, or instrumentality
of government may be relieved of any liability for the acts or
omissions of an authority, operator, or other party to an agreement
under this act, by so providing in the terms of creation or the
terms of the agreement.
(6) Insofar as permitted by an agreement under subsection (1),
an authority may enter into a public-private agreement or an
agreement with a unit, agency, or instrumentality of government in
Michigan or Canada 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.
(7) Except as limited by the terms of its creation or an
agreement under subsection (1), a public agency may do 1 or more of
the following:
(a) Adopt bylaws for the regulation of its affairs and the
conduct of its business.
(b) Sue and be sued in its own name.
(c) Fix and revise from time to time and charge and collect
tolls and other charges for the use of a transportation facility.
(d) Research, plan, study, develop, acquire, design,
construct, operate, maintain, regulate, and control use of a
transportation facility.
(e) Acquire, including by the exercise of eminent domain,
hold, lease, secure, and grant possessory rights and interests, and
dispose of real and personal property in the exercise of its powers
and the performance of its duties under this act.
(f) Make and enter into all contracts and agreements necessary
or incidental to the performance of its duties and the execution of
its powers under this act.
(g) Employ personnel and contract for services necessary or
incidental to the performance of its duties and the execution of
its powers under this act.
(h) In accordance with the terms of a public-private
agreement, oversee the activities of a private entity that is
carrying out the terms of a public-private agreement.
(i) Reimburse members of the authority for actual expenses
necessarily incurred in the performance of official duties.
(j) Do all acts and things necessary or convenient to carry
out the powers expressly granted in this act.
(8) An operator may be authorized to control the use of a
transportation facility and to set reasonable tolls and charges for
its use under terms and conditions designed to protect the public
interest. Use and operation of a transportation facility may be
provided by agreement with an operator for a period determined
necessary for the economic viability of the arrangement, not to
exceed 50 years, provided that ownership of the transportation
facility within Michigan shall rest in a public agency, or a local
unit, agency, or instrumentality of government, and that title
shall not be encumbered. No provision of a public-private agreement
shall allow the public to be deprived of the use and benefit of the
transportation facility except as necessary to implement tolls or
other charges, and to regulate the level or character of
permissible uses. Subject to those restrictions and the terms of
this act, a public-private agreement may contain terms and
conditions that the public agency 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.
(9) The construction and operation of a transportation
facility authorized by this act shall be in conformity with the
state laws that would apply to a state owned transportation
facility constructed or operated under direct contract with the
department.
Sec. 4. (1) A public agency may solicit proposals or receive
unsolicited proposals for a public-private agreement and may charge
and use fees to offset the administrative cost of receiving and
evaluating proposals. Prior to receiving a submission, a public
agency 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 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 agreement for a transportation facility proposed
by an unsolicited proposal, the department shall solicit competing
proposals and award any contract using the criteria in subsection
(4).
(2) In soliciting or selecting a private entity with which to
enter into a public-private agreement, a public agency 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 public agency
determines to be appropriate or reasonable.
(3) The public agency shall select a private entity or
entities for a public-private agreement on a competitive basis to
the maximum extent practicable.
(4) A public agency may consider 1 or more of the following
factors in evaluating and selecting a bid or proposal to enter into
a public-private agreement:
(a) The ability of the transportation facility to improve
safety or operations, reduce congestion, increase capacity, promote
economic growth, or any combination of those 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 citizens and jurisdictions.
(f) Benefits to the public.
(g) The safety record of the private entity.
(h) Any other criteria that the public agency considers
appropriate.
(5) A public agency may select multiple private entities with
which to enter into public-private agreements for a transportation
facility if it is determined to be in the public interest to do so.
(6) A public agency may promise to keep trade secrets or
commercial or financial information provided by a private entity
confidential for purposes of seeking or entering into a public-
private agreement. Upon receipt of a sufficiently detailed request
by a private entity, the public agency 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 a public agency 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 public agency
agrees otherwise in a writing executed by the public agency before
the submission.
(7) No action shall lie against a public agency for its use of
ideas and information provided by a private entity for purposes of
seeking or entering into a public-private agreement.
Sec. 5. (1) Whether it is used by a public agency or a private
entity under a public-private agreement, a transportation facility,
including tangible personal property used exclusively with a
transportation facility, that is owned by a public agency, is
exempt from all ad valorem property taxes and all assessments
levied against property by the state or any political subdivision
of the state. To the extent that the revenue generated from a
transportation facility may permit, if the public agency determines
that a transportation facility will impose on the neighboring
community extraordinary burdens, disproportionate to the burdens
generally imposed by such transportation facilities, it may agree
to make payments to 1 or more local units of government in
recognition of those burdens. In calculating any such payments, the
public agency shall offset the benefits that the transportation
facility may provide for the community.
(2) Subject to approval from the commission and compliance
with all federal laws, the department has exclusive authority to
determine where and whether to establish a transportation facility
and the scope and nature of the facility. The department,
authority, or a private entity acting under a public-private
agreement may establish tolls and other charges for the use of a
transportation facility, and those tolls and charges are not
subject to regulation by any local unit of government or other
state agency. Compensation paid to the public agency in connection
with a public-private agreement and tolls and charges imposed for
use of a transportation facility shall be dedicated exclusively to
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 that revenue may be allotted to the private entity.
(3) A public agency 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 federal or Canadian law, if applicable.
(4) A public agency or a private entity under a public-private
agreement may enter into contracts and leases to provide for the
development and use of a portion of a transportation facility at an
international border crossing in the United States or Canada for
customs brokering 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 or Canadian
law, if applicable.
(5) The expenses of an authority may be funded by revenue
attributable to a transportation facility for which it has
responsibility, with all remaining revenue paid to the units,
agencies, or instrumentalities of government from which the
authority originated. Revenue attributable to a transportation
facility 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. Funding of an authority may also be provided from other
available sources.
Sec. 6. (1) A public agency 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 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 the
state or any political subdivision of the 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, the proceeds of bonds or notes sold to
finance the refunding of such outstanding bonds, if any, or
investment earnings on the proceeds of such bonds or notes.
(3) For the purpose of financing a transportation facility, a
public agency and operator may apply for, obtain, issue, and use
private activity bonds or other financial instruments available
under any state or federal law or program. The bonds or instruments
shall not pledge the faith and credit of the state or any political
subdivision of the state and shall not be a debt of the state or
any political subdivision of the state.
(4) This section does not limit a local government's or public
agency'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 by the sale of bonds.
(5) The public agency 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.
Sec. 7. (1) A public agency may accept from the United States
or any of its agencies funds that are available to the public
agency for carrying out this act, whether the funds are made
available by grant, loan, line of credit, loan guarantee, or other
financial assistance.
(2) The public agency 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 the state or
any political subdivision of the state.
(3) The public agency may enter into agreements or other
arrangements with the United States or any of its agencies as may
be necessary for carrying out the purposes of this act.
(4) A public agency may accept from any source, and use for
the purposes of this act, any grant, donation, gift, or other form
of conveyance of land, money, other real or personal property, or
other item of value.
(5) A transportation facility may be financed in whole or in
part by contribution of any funds or property made by any private
entity or unit of government including the department.
(6) A public agency may combine federal, state, local, and
private funds to finance a transportation facility under this act.
Sec. 8. (1) All law enforcement officers of the state and
local units of government in which all or part of a transportation
facility 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.
(2) Punishment for violations of traffic and motor vehicle
laws shall be as generally prescribed by law.
Sec. 9. (1) A person who fails to pay a toll imposed for use
of a transportation facility is liable for, and shall pay, 3 times
the amount of the toll, to account for the costs of administration
and collection. In addition, if that sum remains unpaid for 180
days after the person's use of the transportation facility, the
public agency or a private entity authorized to do so by a public
agency 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.
(2) 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 (1) for each such additional failure
to pay the toll within a 12-month period.
(3) During the period that a person owes and has failed to pay
charges, fees, and costs under subsection (1) or (2), the person
and a motor vehicle used by the person may be barred from using the
transportation facility.
(4) 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
secretary 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.
(5) The owner of a vehicle alleged to have used a
transportation facility without paying the 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. A public agency or operator under this act and any
utility whose facility is to be crossed or relocated shall
cooperate fully in planning and arranging the manner of the
crossing or relocation of the utilities. If utilities are
relocated, the utility shall relocate them without undue delay, so
as not to interfere with the schedule for a transportation
facility. The utility is liable to a public agency for costs
incurred because of undue delay by the utility in relocating its
utilities. The costs to relocate utilities from public property
shall be borne by the utility. The costs to relocate utilities from
private property shall be borne by the public agency or operator.
Sec. 11. The powers conferred by this act are in addition to
the powers that the department or a unit or instrumentality of
government may otherwise exercise. The powers and immunities
provided in this act shall control in the event of a conflict with
any other law.