(630 ILCS 5/20)
Sec. 20.
Procurement process.
(a) A transportation agency seeking to enter into a public-private partnership with a private entity for the development, finance, and operation of a transportation facility as a transportation project shall determine and set forth the criteria for the selection process. The transportation agency shall use (i) a competitive sealed bidding process, (ii) a competitive sealed proposal process, or (iii) a design-build procurement process in accordance with Section 25 of this Act. Before using one of these processes the transportation agency may use a request for information to obtain information relating to possible public-private partnerships.
(b) If a transportation project will require the performance of design work, the transportation agency shall use the shortlist selection process set forth in subsection (g) of this Section to evaluate and shortlist private entities based on qualifications, including but not limited to design qualifications.
A request for qualifications, request for proposals, or public-private agreement awarded to a contractor for a transportation project shall require that any subsequent need for architectural, engineering, or land surveying services which arises after the submittal of the request for qualifications or request for proposals or the awarding of the public-private agreement shall be procured by the contractor using a qualifications-based selection process consisting of:
(1) the publication of notice of availability of
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(2) a statement of desired qualifications;
(3) an evaluation based on the desired qualifications;
(4) the development of a shortlist ranking the firms |
| in order of qualifications; and |
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(5) negotiations with the ranked firms for a fair and |
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Compliance with the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act shall be deemed prima facie compliance with this subsection (b). Every transportation project contract shall include provisions setting forth the requirements of this subsection (b).
(c) Prior to commencing a procurement for a transportation project under this Act, the transportation agency shall notify any other applicable public agency, including the Authority, in all cases involving toll facilities where the Department would commence the procurement, of its interest in undertaking the procurement and shall provide the other public agency or agencies with an opportunity to offer to develop and implement the transportation project. The transportation agency shall supply the other public agency or agencies with no less than the same level and type of information concerning the project that the transportation agency would supply to private entities in the procurement, unless that information is not then available, in which case the transportation agency shall supply the other public agency or agencies with the maximum amount of relevant information about the project as is then reasonably available. The transportation agency shall make available to the other public agencies the same subsidies, benefits, concessions, and other consideration that it intends to make available to the private entities in the procurement.
The public agencies shall have a maximum period of 60 days to review the information about the proposed transportation project and to respond to the transportation agency in writing to accept or reject the opportunity to develop and implement the transportation project. If a public agency rejects the opportunity during the 60-day period, then the public agency may not participate in the procurement for the proposed transportation project by submitting a proposal of its own. If a public agency fails to accept or reject this opportunity in writing within the 60-day period, it shall be deemed to have rejected the opportunity.
If a public agency accepts the opportunity within the 60-day period, then the public agency shall have up to 120 days (or a longer period, if extended by the transportation agency), to (i) submit to the transportation agency a reasonable plan for development of the transportation project; (ii) if applicable, make an offer of reasonable consideration for the opportunity to undertake the transportation project; and (iii) negotiate a mutually acceptable intergovernmental agreement with the transportation agency that facilitates the development of the transportation project and requires that the transportation agency follow its procurement procedures under the Illinois Procurement Code and applicable rules rather than this Act. In considering whether a public agency's plan for developing and implementing the project is reasonable, the transportation agency shall consider the public agency's history of developing and implementing similar projects, the public agency's current capacity to develop and implement the proposed project, the user charges, if any, contemplated by the public agency's plan and how these user charges compare with user charges that would be imposed by a private entity developing and implementing the same project, the project delivery schedule proposed by the public agency, and other reasonable factors that are necessary, including consideration of risks and whether subsidy costs may be reduced, to determine whether development and implementation of the project by the public agency is in the best interest of the people of this State.
(d) If the transportation agency rejects or fails to negotiate mutually acceptable terms regarding a public agency's plan for developing and implementing the transportation project during the 120-day period described in subsection (c), then the public agency may not participate in the procurement for the proposed transportation project by submitting a proposal of its own. Following a rejection or failure to reach agreement regarding a public agency's plan, if the transportation agency later proceeds with a procurement in which it materially changes (i) the nature or scope of the project; (ii) any subsidies, benefits, concessions, or other significant project-related considerations made available to the bidders; or (iii) any other terms of the project, as compared to when the transportation agency supplied information about the project to public agencies under subsection (c), then the transportation agency shall give public agencies another opportunity in accordance with subsection (c) to provide proposals for developing and implementing the project.
(e) Nothing in this Section 20 requires a transportation agency to go through a procurement process prior to developing and implementing a project through a public agency as described in subsection (c).
(f) All procurement processes shall incorporate requirements and set forth goals for participation by disadvantaged business enterprises as allowed under State and federal law.
(g) The transportation agency shall establish a process to shortlist potential private entities. The transportation agency shall: (i) provide a public notice of the shortlisting process for such period as deemed appropriate by the agency; (ii) set forth requirements and evaluation criteria in a request for qualifications; (iii) develop a shortlist by determining which private entities that have submitted statements of qualification, if any, meet the minimum requirements and best satisfy the evaluation criteria set forth in the request for qualifications; and (iv) allow only those entities, or groups of entities such as unincorporated joint ventures, that have been shortlisted to submit proposals or bids. Throughout the procurement period and as necessary following the award of a contract, the transportation agency shall make publicly available on its website information regarding firms that are prequalified by the transportation agency pursuant to Section 20 of the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act to provide architectural, engineering, and land surveying services. The transportation agencies shall require private entities to use firms prequalified under this Act to provide architectural, engineering, and land surveying services. Firms identified to provide architectural, engineering, and land surveying services in a statement of qualifications shall be prequalified under the Act to provide the identified services prior to the transportation agency's award of the contract.
(h) Competitive sealed bidding requirements:
(1) All contracts shall be awarded by competitive |
| sealed bidding except as otherwise provided in subsection (i) of this Section and Section 25 of this Act. |
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(2) An invitation for bids shall be issued and shall |
| include a description of the public-private partnership with a private entity for the development, finance, and operation of a transportation facility as a transportation project, and the material contractual terms and conditions applicable to the procurement. |
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(3) Public notice of the invitation for bids shall be |
| published in the State of Illinois Procurement Bulletin at least 21 days before the date set in the invitation for the opening of bids. |
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(4) Bids shall be opened publicly in the presence of |
| one or more witnesses at the time and place designated in the invitation for bids. The name of each bidder, the amount of each bid, and other relevant information as may be specified by rule shall be recorded. After the award of the contract, the winning bid and the record of each unsuccessful bid shall be open to public inspection. |
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(5) Bids shall be unconditionally accepted without |
| alteration or correction, except as authorized in this Act. Bids shall be evaluated based on the requirements set forth in the invitation for bids, which may include criteria to determine acceptability such as inspection, testing, quality, workmanship, delivery, and suitability for a particular purpose. Those criteria that will affect the bid price and be considered in evaluation for award, such as discounts, transportation costs, and total or life cycle costs, shall be objectively measurable. The invitation for bids shall set forth the evaluation criteria to be used. |
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(6) Correction or withdrawal of inadvertently |
| erroneous bids before or after award, or cancellation of awards of contracts based on bid mistakes, shall be permitted in accordance with rules. After bid opening, no changes in bid prices or other provisions of bids prejudicial to the interest of the State or fair competition shall be permitted. All decisions to permit the correction or withdrawal of bids based on bid mistakes shall be supported by written determination made by the transportation agency. |
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(7) The contract shall be awarded with reasonable |
| promptness by written notice to the lowest responsible and responsive bidder whose bid meets the requirements and criteria set forth in the invitation for bids, except when the transportation agency determines it is not in the best interest of the State and by written explanation determines another bidder shall receive the award. The explanation shall appear in the appropriate volume of the State of Illinois Procurement Bulletin. The written explanation must include: |
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(A) a description of the agency's needs;
(B) a determination that the anticipated cost |
| will be fair and reasonable; |
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(C) a listing of all responsible and responsive |
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(D) the name of the bidder selected, pricing, and |
| the reasons for selecting that bidder. |
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(8) When it is considered impracticable to initially |
| prepare a purchase description to support an award based on price, an invitation for bids may be issued requesting the submission of unpriced offers to be followed by an invitation for bids limited to those bidders whose offers have been qualified under the criteria set forth in the first solicitation. |
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(i) Competitive sealed proposal requirements:
(1) When the transportation agency determines in |
| writing that the use of competitive sealed bidding or design-build procurement is either not practicable or not advantageous to the State, a contract may be entered into by competitive sealed proposals. |
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(2) Proposals shall be solicited through a request |
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(3) Public notice of the request for proposals shall |
| be published in the State of Illinois Procurement Bulletin at least 21 days before the date set in the invitation for the opening of proposals. |
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(4) Proposals shall be opened publicly in the |
| presence of one or more witnesses at the time and place designated in the request for proposals, but proposals shall be opened in a manner to avoid disclosure of contents to competing offerors during the process of negotiation. A record of proposals shall be prepared and shall be open for public inspection after contract award. |
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(5) The requests for proposals shall state the |
| relative importance of price and other evaluation factors. Proposals shall be submitted in 2 parts: (i) covering items except price; and (ii) covering price. The first part of all proposals shall be evaluated and ranked independently of the second part of all proposals. |
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(6) As provided in the request for proposals and |
| under any applicable rules, discussions may be conducted with responsible offerors who submit proposals determined to be reasonably susceptible of being selected for award for the purpose of clarifying and assuring full understanding of and responsiveness to the solicitation requirements. Those offerors shall be accorded fair and equal treatment with respect to any opportunity for discussion and revision of proposals. Revisions may be permitted after submission and before award for the purpose of obtaining best and final offers. In conducting discussions there shall be no disclosure of any information derived from proposals submitted by competing offerors. If information is disclosed to any offeror, it shall be provided to all competing offerors. |
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(7) Awards shall be made to the responsible offeror |
| whose proposal is determined in writing to be the most advantageous to the State, taking into consideration price and the evaluation factors set forth in the request for proposals. The contract file shall contain the basis on which the award is made. |
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(j) In the case of a proposal or proposals to the Department or the Authority, the transportation agency shall determine, based on its review and evaluation of the proposal or proposals received in response to the request for proposals, which one or more proposals, if any, best serve the public purpose of this Act and satisfy the criteria set forth in the request for proposals and, with respect to such proposal or proposals, shall:
(1) submit the proposal or proposals to the |
| Commission on Government Forecasting and Accountability, which, within 20 days of submission by the transportation agency, shall complete a review of the proposal or proposals and report on the value of the proposal or proposals to the State; |
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(2) hold one or more public hearings on the proposal |
| or proposals, publish notice of the hearing or hearings at least 7 days before the hearing, and include the following in the notice: (i) the date, time, and place of the hearing and the address of the transportation agency, (ii) the subject matter of the hearing, (iii) a description of the agreement to be awarded, (iv) the determination made by the transportation agency that such proposal or proposals best serve the public purpose of this Act and satisfy the criteria set forth in the request for proposals, and (v) that the public may be heard on the proposal or proposals during the public hearing; and |
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(3) determine whether or not to recommend to the |
| Governor that the Governor approve the proposal or proposals. |
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The Governor may approve one or more proposals recommended by the Department or the Authority based upon the review, evaluation, and recommendation of the transportation agency, the review and report of the Commission on Government Forecasting and Accountability, the public hearing, and the best interests of the State.
(k) In addition to any other rights under this Act, in connection with any procurement under this Act, the following rights are reserved to each transportation agency:
(1) to withdraw a request for information, a request |
| for qualifications, or a request for proposals at any time, and to publish a new request for information, request for qualifications, or request for proposals; |
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(2) to not approve a proposal for any reason;
(3) to not award a public-private agreement for any |
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(4) to request clarifications to any statement of |
| information, qualifications, or proposal received, to seek one or more revised proposals or one or more best and final offers, or to conduct negotiations with one or more private entities that have submitted proposals; |
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(5) to modify, during the pendency of a procurement, |
| the terms, provisions, and conditions of a request for information, request for qualifications, or request for proposals or the technical specifications or form of a public-private agreement; |
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(6) to interview proposers; and
(7) any other rights available to the transportation |
| agency under applicable law and regulations. |
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(l) If a proposal is approved, the transportation agency shall execute the public-private agreement, publish notice of the execution of the public-private agreement on its website and in a newspaper or newspapers of general circulation within the county or counties in which the transportation project is to be located, and publish the entire agreement on its website. Any action to contest the validity of a public-private agreement entered into under this Act must be brought no later than 60 days after the date of publication of the notice of execution of the public-private agreement.
(m) For any transportation project with an estimated construction cost of over $50,000,000, the transportation agency may also require the approved proposer to pay the costs for an independent audit of any and all traffic and cost estimates associated with the approved proposal, 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 approved proposal, failure by the approved proposer to reimburse the transportation agency for services provided, and potential risk and liability in the event the approved proposer defaults on the public-private agreement or on bonds issued for the project). If required by the transportation agency, this independent audit must be conducted by an independent consultant selected by the transportation agency, and all information from the review must be fully disclosed.
(n) The transportation agency may also apply for, execute, or endorse applications submitted by private entities to obtain federal credit assistance for qualifying projects developed or operated pursuant to this Act.
(Source: P.A. 97-502, eff. 8-23-11; 97-858, eff. 7-27-12.) |
(630 ILCS 5/35)
Sec. 35.
Public-private agreements.
(a) Unless undertaking actions otherwise permitted in an interim agreement entered into under Section 30 of this Act, before developing, financing, or operating the transportation project, the approved proposer shall enter into a public-private agreement with the transportation agency. Subject to the requirements of this Act, a public-private agreement may provide that the approved proposer, acting on behalf of the transportation agency, is partially or entirely responsible for any combination of developing, financing, or operating the transportation project under terms set forth in the public-private agreement.
(b) The public-private agreement may, as determined appropriate by the transportation agency for the particular transportation project, provide for some or all of the following:
(1) Development, financing, and operation of the
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| transportation project under terms set forth in the public-private agreement, in any form as deemed appropriate by the transportation agency, including, but not limited to, a long-term concession and lease, a design-bid-build agreement, a design-build agreement, a design-build-maintain agreement, a design-build-finance agreement, a design-build-operate-maintain agreement and a design-build-finance-operate-maintain agreement. |
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(2) Delivery of performance and payment bonds or |
| other performance security determined suitable by the transportation agency, including letters of credit, United States bonds and notes, parent guaranties, and cash collateral, in connection with the development, financing, or operation of the transportation project, in the forms and amounts set forth in the public-private agreement or otherwise determined as satisfactory by the transportation agency to protect the transportation agency and payment bond beneficiaries who have a direct contractual relationship with the contractor or a subcontractor of the contractor to supply labor or material. The payment or performance bond or alternative form of performance security is not required for the portion of a public-private agreement that includes only design, planning, or financing services, the performance of preliminary studies, or the acquisition of real property. |
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(3) Review of plans for any development or operation, |
| or both, of the transportation project by the transportation agency. |
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(4) Inspection of any construction of or improvements |
| to the transportation project by the transportation agency or another entity designated by the transportation agency or under the public-private agreement to ensure that the construction or improvements conform to the standards set forth in the public-private agreement or are otherwise acceptable to the transportation agency. |
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(5) Maintenance of:
(A) one or more policies of public liability |
| insurance (copies of which shall be filed with the transportation agency accompanied by proofs of coverage); or |
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(B) self-insurance;
each in form and amount as set forth in the |
| public-private agreement or otherwise satisfactory to the transportation agency as reasonably sufficient to insure coverage of tort liability to the public and employees and to enable the continued operation of the transportation project. |
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(6) Where operations are included within the |
| contractor's obligations under the public-private agreement, monitoring of the maintenance practices of the contractor by the transportation agency or another entity designated by the transportation agency or under the public-private agreement and the taking of the actions the transportation agency finds appropriate to ensure that the transportation project is properly maintained. |
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(7) Reimbursement to be paid to the transportation |
| agency as set forth in the public-private agreement for services provided by the transportation agency. |
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(8) Filing of appropriate financial statements and |
| reports as set forth in the public-private agreement or as otherwise in a form acceptable to the transportation agency on a periodic basis. |
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(9) Compensation or payments to the contractor. |
| Compensation or payments may include any or a combination of the following: |
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(A) a base fee and additional fee for project |
| savings as the design-builder of a construction project; |
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(B) a development fee, payable on a lump-sum |
| basis, progress payment basis, time and materials basis, or another basis deemed appropriate by the transportation agency; |
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(C) an operations fee, payable on a lump-sum |
| basis, time and material basis, periodic basis, or another basis deemed appropriate by the transportation agency; |
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(D) some or all of the revenues, if any, arising |
| out of operation of the transportation project; |
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(E) a maximum rate of return on investment or |
| return on equity or a combination of the two; |
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(F) in-kind services, materials, property, |
| equipment, or other items; |
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(G) compensation in the event of any termination;
(H) availability payments or similar arrangements |
| whereby payments are made to the contractor pursuant to the terms set forth in the public-private agreement or related agreements; or |
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(I) other compensation set forth in the |
| public-private agreement or otherwise deemed appropriate by the transportation agency. |
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(10) Compensation or payments to the transportation |
| agency, if any. Compensation or payments may include any or a combination of the following: |
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(A) a concession or lease payment or other fee, |
| which may be payable upfront or on a periodic basis or on another basis deemed appropriate by the transportation agency; |
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(B) sharing of revenues, if any, from the |
| operation of the transportation project; |
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(C) sharing of project savings from the |
| construction of the transportation project; |
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(D) payment for any services, materials, |
| equipment, personnel, or other items provided by the transportation agency to the contractor under the public-private agreement or in connection with the transportation project; or |
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(E) other compensation set forth in the |
| public-private agreement or otherwise deemed appropriate by the transportation agency. |
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(11) The date and terms of termination of the |
| contractor's authority and duties under the public-private agreement and the circumstances under which the contractor's authority and duties may be terminated prior to that date. |
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(12) Reversion of the transportation project to the |
| transportation agency at the termination or expiration of the public-private agreement. |
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(13) Rights and remedies of the transportation agency |
| in the event that the contractor defaults or otherwise fails to comply with the terms of the public-private agreement. |
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(14) Procedures for the selection of professional |
| design firms and subcontractors, which shall include procedures consistent with the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act for the selection of professional design firms and may include, in the discretion of the transportation agency, procedures consistent with the low bid procurement procedures outlined in the Illinois Procurement Code for the selection of construction companies. |
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(15) Other terms, conditions, and provisions that the |
| transportation agency believes are in the public interest. |
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(c) The transportation agency may fix and revise the amounts of user fees that a contractor may charge and collect for the use of any part of a transportation project in accordance with the public-private agreement. In fixing the amounts, the transportation agency may establish maximum amounts for the user fees and may provide that the maximums and any increases or decreases of those maximums shall be based upon the indices, methodologies, or other factors the transportation agency considers appropriate.
(d) A public-private agreement may:
(1) authorize the imposition of tolls in any manner |
| determined appropriate by the transportation agency for the transportation project; |
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(2) authorize the contractor to adjust the user fees |
| for the use of the transportation project, so long as the amounts charged and collected by the contractor do not exceed the maximum amounts established by the transportation agency under the public-private agreement; |
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(3) provide that any adjustment by the contractor |
| permitted under paragraph (2) of this subsection (d) may be based on the indices, methodologies, or other factors described in the public-private agreement or approved by the transportation agency; |
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(4) authorize the contractor to charge and collect |
| user fees through methods, including, but not limited to, automatic vehicle identification systems, electronic toll collection systems, and, to the extent permitted by law, global positioning system-based, photo-based, or video-based toll collection enforcement, provided that to the maximum extent feasible the contractor will (i) utilize open road tolling methods that allow payment of tolls at highway speeds and (ii) comply with United States Department of Transportation requirements and best practices with respect to tolling methods; and |
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(5) authorize the collection of user fees by a third |
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(e) In the public-private agreement, the transportation agency may agree to make grants or loans for the development or operation, or both, of the transportation 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.
(f) Upon the termination or expiration of the public-private agreement, including a termination for default, the transportation agency shall have the right to take over the transportation project and to succeed to all of the right, title, and interest in the transportation project. Upon termination or expiration of the public-private agreement relating to a transportation project undertaken by the Department, all real property acquired as a part of the transportation project shall be held in the name of the State of Illinois. Upon termination or expiration of the public-private agreement relating to a transportation project undertaken by the Authority, all real property acquired as a part of the transportation project shall be held in the name of the Authority.
(g) If a transportation agency elects to take over a transportation project as provided in subsection (f) of this Section, the transportation agency may do the following:
(1) develop, finance, or operate the project, |
| including through a public-private agreement entered into in accordance with this Act; or |
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(2) impose, collect, retain, and use user fees, if |
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(h) If a transportation agency elects to take over a transportation project as provided in subsection (f) of this Section, the transportation agency may 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 transportation project, including through a public-private agreement entered into in accordance with this Act; |
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(2) permit a contractor to receive some or all of the |
| revenues under a public-private agreement entered into under this Act; |
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(3) pay development costs of the project;
(4) pay current operation costs of the project or |
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(5) pay the contractor for any compensation or |
| payment owing upon termination; and |
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(6) pay for the development, financing, or operation |
| of any other project or projects the transportation agency deems appropriate. |
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(i) The full faith and credit of the State or any political subdivision of the State or the transportation agency is not pledged to secure any financing of the contractor by the election to take over the transportation project. Assumption of development or operation, or both, of the transportation project does not obligate the State or any political subdivision of the State or the transportation agency to pay any obligation of the contractor.
(j) The transportation agency may enter into a public-private agreement with multiple approved proposers if the transportation agency determines in writing that it is in the public interest to do so.
(k) A public-private agreement shall not include any provision under which the transportation agency agrees to restrict or to provide compensation to the private entity for the construction or operation of a competing transportation facility during the term of the public-private agreement.
(l) With respect to a public-private agreement entered into by the Department, the Department shall certify in its State budget request to the Governor each year the amount required by the Department during the next State fiscal year to enable the Department to make any payment obligated to be made by the Department pursuant to that public-private agreement, and the Governor shall include that amount in the State budget submitted to the General Assembly.
(Source: P.A. 97-502, eff. 8-23-11; 97-858, eff. 7-27-12.) |