SB-1197, As Passed Senate, December 5, 2018
SUBSTITUTE FOR
SENATE BILL NO. 1197
A bill to amend 1952 PA 214, entitled
"An act authorizing the Mackinac bridge authority to acquire a
bridge connecting the upper and lower peninsulas of Michigan,
including causeways, tunnels, roads and all useful related
equipment and facilities, including park, parking, recreation,
lighting and terminal facilities; extending the corporate existence
of the authority; authorizing such authority to enjoy and carry out
all powers incident to its corporate objects; authorizing the
appropriation and use of state funds for the preliminary purposes
of the authority; providing for the payment of the cost of such
bridge and in that connection authorizing the authority to issue
revenue bonds payable solely from the revenues of the bridge;
granting the right of condemnation to the authority; granting the
use of state land and property to the authority; making provisions
for the payment and security of such bonds and granting certain
rights and remedies to the holders thereof; authorizing banks and
trust companies to perform certain acts in connection therewith;
authorizing the imposition of tolls and charges; authorizing the
authority to secure the consent of the United States government to
the construction of the bridge and to secure approval of plans,
specifications and location of same; authorizing employment of
engineers irrespective of whether such engineers have been
previously employed to make preliminary inspections or reports with
respect to the bridge; authorizing the state highway department to
operate and maintain such bridge or to contribute thereto and enter
into leases and agreements in connection therewith; exempting such
bonds and the property of the authority from taxation; prohibiting
Senate Bill No. 1197 as amended December 05, 2018
competing traffic facilities; authorizing the operation of ferries
by the authority; providing for the construction and use of certain
buildings; and making an appropriation,"
by amending the title, and <<sections 1 and 5 >>(<< 254.311 and >> MCL 254.315), the title as
amended by 1992 PA 120 and section 5 as amended by 1983 PA 123, and
by adding sections 14, 14a, 14b, 14c, 14d, and 14e.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
TITLE
An act authorizing the Mackinac bridge authority to acquire a
bridge
and a utility tunnel connecting the upper and lower
peninsulas
Upper and Lower Peninsulas of Michigan, including
causeways, tunnels, roads and all useful related equipment and
facilities, including park, parking, recreation, lighting, and
terminal facilities; extending the corporate existence of the
authority;
authorizing such the authority to enjoy and carry out
all powers incident to its corporate objects; authorizing the
appropriation and use of state funds for the preliminary purposes
of
the authority; providing for the payment of the cost of such the
bridge
and in that connection authorizing the authority to issue
revenue bonds payable solely from the revenues of the bridge;
granting the right of condemnation to the authority; granting the
use of state land and property to the authority; making provisions
for
the payment and security of such bonds and granting certain
rights
and remedies to the holders thereof; of bonds; authorizing
banks and trust companies to perform certain acts in connection
therewith;
with the payment and security
of bonds; authorizing the
imposition of tolls and charges; authorizing the authority to
secure the consent of the United States government to the
construction of the bridge and to secure approval of plans,
specifications, and
location of same; the
bridge; authorizing
employment
of engineers irrespective regardless
of whether such
those engineers have been previously employed to make preliminary
inspections or reports with respect to the bridge; authorizing the
state
highway transportation department to operate and maintain
such
the bridge or to contribute thereto to the bridge and enter
into
leases and agreements in connection therewith; with the
bridge;
exempting such bonds and the
property of the authority from
taxation; prohibiting competing traffic facilities; authorizing the
operation of ferries by the authority; authorizing the creation of
the Mackinac Straits corridor authority; authorizing the operation
of a utility tunnel by the authority or the Mackinac Straits
corridor authority; providing for the construction and use of
certain buildings; and making an appropriation.
<<Sec. 1. As used in this act: the following words and terms shall have the following
meanings:
(a) The word "authority" shall mean "Authority" means the Mackinac bridge authority created by
Act No. 21 of the Public Acts of the Extra Session of 1950, being sections
254.301 to 254.304, inclusive, of the Compiled Laws of 1948.in 1950 (Ex Sess) PA 21, MCL 254.301
to 254.302. This subdivision does not apply to
sections 14a, 14b, 14d, and 14e.
(b) The word "board" shall refer to "Board" means the members of the authority. This subdivision does not apply to
section 14b.
(c) The word "bridge" shall mean "Bridge" means the project for the acquisition of which
this act is adopted and shall mean means a
bridge or structure extending from the upper peninsula Upper Peninsula to the lower peninsula Lower Peninsula of Michigan, and shall be understood to
include includes all of the following forming any part thereof
of the bridge or connected with or used or useful in the
operation thereof, of
the bridge, causeways,
bridges, tunnels, roads, fills and approaches, or any combination thereof,
parking space and facilities, park and recreation facilities, lighting
facilities, terminal facilities consisting of areas, structures, and buildings in whch [sic] which rest rooms, waiting rooms, restaurant and similar
facilities, and other accommodations for the
traveling public may be installed, including all fixtures, utility lines,
accessories, and equipment relating to any or all of
the above, and including the improvement and beautification of such terminal
areas at each end of the structure as may be designed to increase the use thereof,
of the structure, and including in all of the foregoing all
real and personal property, tangible or intangible, licenses, franchises,
easements, and rights-of-way necessary thereto.
(d) The term "cost of the bridge" shall
include "cost
of the bridge" includes all
expenditures made in connection with the acquisition and construction thereof,
of the bridge, financing charges, interest to accrue on
the bonds during the period occupied by the construction of the bridge and for such
a period thereafter after construction of the bridge as may be determined by the board,
the aggregate of such periods, however, not to exceed 7 years, cost of
engineering and legal expenses, plans, specifications and surveys, other
expenses necessary or incidental to determining the feasibility of the project,
the cost of all land, property, rights, easements and franchises, reimbursement
of all money which that
may have been heretofore or
may hereafter will
be paid or advanced by the
state of Michigan or any of its agencies, departments, or subdivisions, for any of
the foregoing, and all other expenses properly incident to the acquisition
of the bridge and the issuance of the bonds.
(e) The words "the state" shall mean "The state" means the state of Michigan.
(f) The words "the bonds" shall mean "The bonds" means all bonds authorized to be issued by this
act.
(g) The words "to construct" shall mean "To construct" means to acquire through construction, purchase,
gift, condemnation, or any combination thereof.>>
Sec.
5. (1) The authority is hereby authorized may by
resolution
or resolutions of the board to provide for the issuance
of revenue bonds for the purpose of paying the cost of the bridge
or for the purpose of refunding the bonds, including refunding
bonds,
or for any combination of such these
purposes. Such
refunding
Refunding bonds may be either sold at not less than par
and accrued interest or may be delivered in exchange for the bonds
to be refunded or may be sold in part and exchanged in part and if
sold,
the proceeds thereof of
the sale or exchange when received,
together with other properly available funds sufficient to pay the
balance
of the principal, interest, and redemption premiums which
that will be due on the bonds to be refunded, shall be deposited
with
the paying agent for the bonds to be so refunded and used only
for
the purpose of making said those
payments. Any such A sale
or
exchange
shall be described in this
subsection is subject to the
approval of the state administrative board. The board may enter
into
such contracts for fiscal agents' services in connection with
the
financing of the bridge as may be approved by the state
administrative board, or the state treasurer may be used as fiscal
agent.
(2) Principal of and interest and redemption premiums on the
bonds
issued hereunder shall be under
this section are payable
solely
from the revenues of the authority, except that said
payments may also be made from the proceeds of refunding bonds
issued
hereunder under this
section and capitalized interest may be
paid
from the proceeds of the bonds. Such The bonds may be either
serial
bonds, or term bonds, or any a combination thereof. of
serial and term bonds. Any serial bonds shall have annual or
semiannual maturities, the first maturity of which shall be payable
not
more than 10 years from their date. Any A term bonds shall be
bond
is redeemable on any interest payment
date at such a price or
prices
and upon such terms and
conditions as prescribed by the
authorizing resolution of the board, and recited upon the face of
the
bonds. The bonds bond. A
bond shall mature not more than 50
years
from their its date, shall be a coupon bonds bond bearing
interest at not more than 6% per annum, payable semiannually except
as to the first coupon which may be for any number of months not
exceeding
10, shall be payable in such a
medium, shall be in such a
form
and executed in such a manner, shall have such a privilege
of
registration as to principal or principal and interest, shall be
payable
at such a place or places within inside or
without the
outside
this state, and
shall otherwise have such other details as
may
be fixed by resolution of the
board. Serial bonds may be made
redeemable
prior to maturity at such a
price or prices and under
such
terms and conditions as may be prescribed
in the resolution of
the board, and recited upon the face of the bonds.
(3)
All such bonds A bond
issued under this section shall
contain
a statement on their its face that neither the bonds bond
nor
the coupons coupon representing interest thereon constitute on
the
bond constitutes an indebtedness of the
this state of Michigan
within the meaning of any constitutional limitations or
prohibitions
and that neither the authority nor the this state is
authorized
to pay such bonds the bond
or interest except from the
revenues
pledged thereto to the
bond or interest under the
provisions
of this act. In case any official
whose signature
appears
on such bonds a bond or coupons shall cease coupon ceases
to
be such an officer before the delivery of such bonds, such the
bond, his or her signature shall nevertheless be valid and
sufficient
for all purposes with like effect as though such person
he
or she had remained in office until
delivery. All such bonds are
hereby
declared to be A bond issued
under this section is fully
negotiable
and to have has all of the qualities incident to
negotiable instruments under the uniform commercial code, subject
only
to the provisions for registration of the bonds which may
appear
therein. Such bonds shall be bond
that appears in the bond.
A
bond issued under this section is exempt
from all taxation by the
this
state or any of its a political
subdivisions subdivision
of
this state and shall be sold at public sale after notice at least 5
days before the sale in a publication approved by the department of
treasury
for the carrying of such the
notice, but no such sale
shall be made at a price that will result in an interest cost of
more
than 6% per annum. However, all or any part of such bonds a
bond issued under this section may be sold to the United States
government
or any an agency thereof, of the United States
government,
at private sale , without public offering and the
authority is authorized to enter into any agreements or contracts
with the United States government or any of its agencies necessary
to provide for the financing of the bridge in the manner
contemplated
by this act. Such bonds A
bond issued under this
section may be authorized and may be issued from time to time as
needed
and subsequent series or issues thereof shall enjoy of a
bond issued under this section have equal or subordinate status
with
respect to the pledge of revenues from which they are the bond
is
payable as may be provided in
the proceedings authorizing their
its
issuance. Any public sale, or
negotiated sale of the bonds a
bond issued under this section with the United States government or
any
of its agencies, shall be is
subject to the approval of the
state administrative board. Prior to the preparation of a
definitive
bonds, bond, the board may provide for the issuance of a
temporary
bonds bond with or without coupons, a coupon,
exchangeable
for a definitive bonds bond upon
the issuance of the
latter.
temporary bond. The proceedings authorizing the bonds a
bond
issued under this section may provide
that such bonds the bond
Senate Bill No. 1197 as amended December 5, 2018
shall
contain a recital that they are it
is issued pursuant to
under
this act and such the recital
shall be is conclusive evidence
of
their its validity and the regularity of their its issuance.
(4) This section does not apply to the acquisition,
construction, operation, maintenance, improvement, repair, or
management of a utility tunnel. As used in this subsection,
"utility tunnel" means that term as defined in section 14.
Sec. 14. As used in this section and sections 14a to 14e:
(a) "Corridor authority board" means the board of directors of
the Mackinac Straits corridor authority appointed under section
14b.
(b) "Mackinac Straits corridor authority" means the Mackinac
Straits corridor authority created in section 14b.
(c) "Straits protection fund" means the fund created in
section 14c.
(d) "Tunnel agreement" means an agreement or series of
agreements described in section 14d.
(e) "Utility tunnel" means a tunnel joining and connecting the
Upper and Lower Peninsulas of this state at the Straits of Mackinac
for the purpose of accommodating utility infrastructure, including,
but not limited to, pipelines, electric transmission lines,
facilities for the transmission of data and telecommunications, all
useful and related facilities, equipment, and structures, and all
necessary tangible or intangible real and personal property,
licenses, franchises, easements, and rights-of-way.
Sec. 14a. (1) The<< Mackinac bridge>> authority may acquire,
construct, operate,
maintain, improve, repair, and manage a utility tunnel. The
Senate Bill No. 1197 as amended December 5, 2018
<<Mackinac bridge >>authority shall determine the rates charged for the
services
offered by the utility tunnel. The <<Mackinac bridge >>authority may
enter into
contracts or agreements necessary to perform its duties and powers
under this act, including, but not limited to, leasing the right to
use a utility tunnel on terms and for consideration determined by
the <<Mackinac bridge >>authority. This subsection does not authorize
the<< Mackinac bridge >>authority to
incur obligations that would constitute an indebtedness of this
state contrary to the state constitution of 1963.
(2) The <<Mackinac bridge >>authority may purchase or otherwise
acquire at a fair
and reasonable price property and property rights in connection
with the construction of a utility tunnel, including, but not
limited to, roads, structures, rights-of-way, franchises,
easements, and other interests in land, including land under water;
the riparian rights of any person; and the right to cut off light,
air, and access to real property.
(3) The <<Mackinac bridge >>authority may enter on any public land,
water, or
premises to make a survey, sounding, or examination in connection
with the construction of a utility tunnel. The <<Mackinac bridge
>>authority has the
right to use and full easements and rights-of-way through, across,
under, and over any lands or property owned by this state or in
which this state has any right, title, or interest, without
consideration, that may be necessary or convenient to the
construction and efficient operation of the utility tunnel.
(4) The <<Mackinac bridge >>authority may perform all acts
necessary to secure the
consent of any department, agency, instrumentality, or officer of
the United States government or this state to the construction and
operation of a utility tunnel and the charging of fees for its use,
Senate Bill No. 1197 as amended December 5, 2018
and to secure the approval of any department, agency,
instrumentality, or officer of the United States government or this
state required by law to approve the plans, specifications, and
location of the utility tunnel or the fees to be charged for the
use of the utility tunnel.
(5) The << >>carrying out of the
<<Mackinac bridge>>
authority's purposes, including a utility tunnel, are for the
benefit of the people of this state and constitute a public
purpose, and the <<Mackinac bridge >>authority is performing an essential
government
function in the exercise of the powers conferred upon it by this
act. All property owned by the <<Mackinac bridge >>authority related to a
utility
tunnel is exempt from all taxes levied by this state and all of its
political subdivisions and taxing districts, and the <<Mackinac bridge
>>authority is
not required to pay taxes or assessments upon its activities or
upon any of its revenues. If a tax of any nature is legally imposed
on any property or obligation of the <<Mackinac bridge >>authority in
connection with a
utility tunnel, and that tax is determined to be valid and
effective, the tax shall be paid from the revenues of the <<Mackinac
bridge >>authority
as an expense of maintaining and operating the utility tunnel.
Sec. 14b. (1) The Mackinac Straits corridor authority is
created within the state transportation department. The Mackinac
Straits corridor authority is a state institution within the
meaning of section 9 of article II of the state constitution of
1963, and an instrumentality of this state exercising public and
essential governmental functions. The creation of the Mackinac
Straits corridor authority and the carrying out of the Mackinac
Straits corridor authority's authorized purposes are public and
essential governmental purposes for the benefit of the people of
this state and for the improvement of the health, safety, welfare,
comfort, and security of the people of this state, and these
purposes are public purposes. The Mackinac Straits corridor
authority will be performing an essential governmental function in
the exercise of the powers conferred upon it by this act.
(2) The Mackinac Straits corridor authority shall exercise its
duties through the corridor authority board. The corridor authority
board shall consist of 3 members appointed by the governor with the
advice and consent of the senate. No more than 2 of the corridor
authority board members shall be members of the same political
party. Members of the corridor authority board shall serve for
terms of 6 years or until a successor is appointed and qualified,
whichever is later.
(3) If a vacancy occurs on the corridor authority board, the
governor, with the advice and consent of the senate, shall make an
appointment for the unexpired term in the same manner as the
original appointment.
(4) At the first meeting of the corridor authority board, the
corridor authority board shall elect from among its members a
chairperson. After the first meeting, the corridor authority board
shall meet at the call of the chairperson or if requested by a
majority of the members.
(5) A majority of the members of the corridor authority board
constitute a quorum for the transaction of business at a meeting of
the board. A majority of the members present and serving are
required for official action of the corridor authority board.
Senate Bill No. 1197 as amended December 5, 2018
(6) Members of the corridor authority board shall serve
without compensation. However, members of the corridor authority
board shall be reimbursed for their actual and necessary expenses
incurred in the performance of their official duties as members of
the corridor authority board, unless they decline to accept
reimbursement.
(7) The members of the corridor authority board and any agent
of the Mackinac Straits corridor authority are subject to 1968 PA
317, MCL 15.321 to 15.330, and 1968 PA 318, MCL 15.301 to 15.310.
<<(8) An individual who is a member of the Mackinac bridge authority board shall not serve as a member of the corridor authority board during his or her term as a member of the Mackinac bridge authority board.>>
<< (9)>> The business that the corridor authority board may
perform
shall be conducted at a public meeting of the corridor authority
board held in compliance with the open meetings act, 1976 PA 267,
MCL 15.261 to 15.275.
<< (10)>> A writing prepared, owned, used, in the possession of,
or
retained by the corridor authority board in the performance of an
official function is subject to the freedom of information act,
1976 PA 442, MCL 15.231 to 15.246.
<< (11)>> The Mackinac Straits corridor authority does not
possess
any powers not explicitly granted to it under this act, including,
but not limited to, the power of eminent domain.
Sec. 14c. (1) The straits protection fund is created within
the state treasury.
(2) The state treasurer may receive money or other assets from
any source for deposit into the straits protection fund. The state
treasurer shall direct the investment of the straits protection
fund. The state treasurer shall credit to the straits protection
fund interest and earnings from fund investments.
Senate Bill No. 1197 as amended December 5, 2018
(3) Money in the straits protection fund at the close of the
fiscal year shall remain in the straits protection fund and shall
not lapse to the general fund.
(4) The state transportation department shall be the
administrator of the fund for auditing purposes.
Sec. 14d. (1) All duties, responsibilities, authorities, and
powers related to a utility tunnel as provided in section 14a and
any money in the straits protection fund shall transfer to the
corridor authority board upon the appointment of the members of the
corridor authority board under section 14b(2). The transfer of
duties, responsibilities, authorities, powers, and money described
in this subsection does not require any action by the <<Mackinac bridge
>>authority or
any other entity. The corridor authority board shall exercise its
duties independently of the state transportation department and the
<<Mackinac bridge >>authority.
(2) The corridor authority board shall provide a report to the
<<Mackinac bridge >>authority at least 1 time per year regarding aspects
of the utility
tunnel that could affect the <<Mackinac bridge >>authority, including,
but not limited
to, the progress of construction and utility leasing.
(3) The operation of a utility tunnel, including, but not
limited to, the leasing of space in the utility tunnel to a
utility, is not competition with the bridge.
(4) Except as provided in subdivision (a), no later than
December 31, 2018, the Mackinac Straits corridor authority shall
enter into an agreement or a series of agreements for the
construction, maintenance, operation, and decommissioning of a
utility tunnel, if the Mackinac Straits corridor authority finds
all of the following:
(a) That the governor has supplied a proposed tunnel agreement
to the Mackinac Straits corridor authority on or before December
21, 2018. If the governor has not supplied a proposed tunnel
agreement to the Mackinac Straits corridor authority on or before
December 21, 2018, the Mackinac Straits corridor authority shall
act on the proposed tunnel agreement no later than 45 days after
the date the proposed agreement is presented.
(b) That the proposed tunnel agreement allows for the use of
the utility tunnel by multiple utilities, provides an option to
better connect the Upper and Lower Peninsulas of this state, and
provides a route to allow utilities to be laid without future
disturbance to the bottomlands of the Straits of Mackinac.
(c) That the proposed tunnel agreement requires gathering of
geotechnical information before construction to ensure that
construction of a utility tunnel is feasible.
(d) That the proposed tunnel agreement provides the Mackinac
Straits corridor authority with a mechanism to ensure that a
utility tunnel is built to sufficient technical specifications and
maintained properly to ensure a long asset life and secondary
containment for any leak or pollution from utilities using the
tunnel.
(e) That the proposed tunnel agreement does not require any
obligation of funds that is inconsistent with this act, and that
the proposed tunnel agreement provides a mechanism under which all
costs of construction, maintenance, operation, and decommissioning
of the utility tunnel are borne by a private party and not by the
Mackinac Straits corridor authority, its predecessor, or a
successor. This subdivision does not prevent the expenditure of
money from the straits protection fund for the cost of independent
oversight of the utility tunnel or the leasing of space in the
utility tunnel to publicly-owned entities.
(f) That the proposed tunnel agreement does not require the
use of the power of eminent domain.
(g) That the proposed tunnel agreement does not exempt any
entity that constructs or uses the utility tunnel from the
obligation to obtain any required governmental permits or approvals
for the construction or use of the utility tunnel.
(h) That the proposed tunnel agreement does not exempt an
entity using the utility tunnel from the payment of a tax or
similar obligation.
(i) That the proposed tunnel agreement does not require the
Mackinac Straits corridor authority to bring or defend a legal
claim for which the attorney general is not required to provide
counsel.
(5) If the attorney general declines to represent the
<<Mackinac bridge >>authority or the Mackinac Straits corridor authority
in a matter
related to the utility tunnel, the attorney general shall provide
for the costs of representation by an attorney licensed to practice
in this state chosen by the <<Mackinac bridge >>authority or the Mackinac
Straits
corridor authority, as applicable. As used in this subsection,
"matter related to the utility tunnel" includes, but is not limited
to, 1 or more of the following:
(a) A claim seeking a judicial determination that the tunnel
Senate Bill No. 1197 as amended December 5, 2018
agreement is legally invalid.
(b) A claim seeking to enjoin performance under the tunnel
agreement.
(c) A claim challenging the validity of any governmental
approval or permit granted based upon an application submitted
singly or jointly by the Mackinac Straits corridor authority.
(d) A claim challenging a governmental entity's denial of a
governmental approval or permit submitted singly or jointly by the
Mackinac Straits utility tunnel authority.
(e) A claim challenging the right to use any land of this
state for which the <<Mackinac bridge >>authority or the Mackinac Straits
corridor
authority was granted the right to use.
(f) A claim alleging a failure to perform under the tunnel
agreement that limits 1 of the following:
(i) The use of the utility tunnel.
(ii) The ability to operate the utility infrastructure within
the utility tunnel, if the utility is in full compliance with the
terms of a lease granted by the Mackinac Straits corridor
authority.
(g) A claim challenging the validity of or seeking to enjoin
the issuance of any approval regarding the utility tunnel.
(6) Any administrative functions of the Mackinac Straits
corridor authority shall be performed under the direction and
supervision of the state transportation department.
Sec. 14e. (1) Neither the <<Mackinac bridge >>authority nor the
Mackinac Straits
corridor authority may pay or obligate any money or assets related
to the utility tunnel except money that is deposited into the
Senate Bill No. 1197 as amended December 5, 2018
straits protection fund or any escrow or reserve fund created under
the tunnel agreement. This state, a state official, a state-related
entity, the <<Mackinac bridge >>authority or an agent of the <<Mackinac
bridge >>authority, the Mackinac
Straits corridor authority or an agent of the Mackinac Straits
corridor authority, or any other legal, financial, or other expert
providing advice to the <<Mackinac bridge >>authority or the Mackinac
Straits corridor
authority shall not enter into an agreement for the payment of
money from any source other than the straits protection fund or any
escrow or reserve fund created under the tunnel agreement. This
subsection does not restrict the right of the <<Mackinac bridge
>>authority or the
Mackinac Straits corridor authority to utilize any property rights
granted to the <<Mackinac bridge >>authority or the Mackinac Straits
corridor authority
by this state or a private property owner.
(2) This state, a state official, a state-related entity, the
<<Mackinac bridge >>authority or an agent of the <<Mackinac bridge
>>authority, the Mackinac Straits
corridor authority or an agent of the Mackinac Straits corridor
authority, or any other legal, financial, or other expert providing
advice to the <<Mackinac bridge >>authority or the Mackinac Straits
corridor authority
shall not enter into an agreement to accept any liability for or
resulting from the installation, maintenance, operation, or
decommissioning of any utility equipment owned by the user of a
utility tunnel, including, but not limited to, a pipeline,
electrical transmission line, or broadband cable within the utility
tunnel.