Bill Amendment: IL SB1900 | 2021-2022 | 102nd General Assembly
NOTE: For additional amemendments please see the Bill Drafting List
Bill Title: PUBLIC-PRIVATE PARTNERSHIP ACT
Status: 2022-02-10 - Senate Committee Amendment No. 1 Rule 3-9(a) / Re-referred to Assignments [SB1900 Detail]
Download: Illinois-2021-SB1900-Senate_Amendment_001.html
Bill Title: PUBLIC-PRIVATE PARTNERSHIP ACT
Status: 2022-02-10 - Senate Committee Amendment No. 1 Rule 3-9(a) / Re-referred to Assignments [SB1900 Detail]
Download: Illinois-2021-SB1900-Senate_Amendment_001.html
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1 | AMENDMENT TO SENATE BILL 1900
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2 | AMENDMENT NO. ______. Amend Senate Bill 1900 by replacing | ||||||
3 | everything after the enacting clause with the following:
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4 | "Article 1. Purpose; Authority | ||||||
5 | Section 1-1. Short title. This Act may be cited as the | ||||||
6 | Public-Private Partnerships Act.
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7 | Section 1-5. Legislative findings and declarations. | ||||||
8 | (a) It is hereby found and declared that it is the public | ||||||
9 | policy and the public purpose of the State of Illinois to | ||||||
10 | promote the development, financing, providing of services, and | ||||||
11 | operation of facilities that serve the needs of the public. | ||||||
12 | (b) It is hereby found and declared that there are | ||||||
13 | inadequate public resources to develop, modernize, refurbish | ||||||
14 | and maintain Illinois public infrastructure and services in a | ||||||
15 | timely and cost-effective manner, and that such need is |
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1 | impeded by existing methods of procurement and funding. | ||||||
2 | (c) It is hereby found and declared that authorizing | ||||||
3 | private entities to do all or part of the development, | ||||||
4 | planning, design, construction, maintenance, repair, | ||||||
5 | rehabilitation, expansion, financing, and operation of one or | ||||||
6 | more facilities, and provide services, can result in the | ||||||
7 | availability of facilities and services to the public in a | ||||||
8 | more timely, more efficient, or less costly fashion, thereby | ||||||
9 | serving the public safety and welfare. When properly planned | ||||||
10 | and structured, public-private partnerships and unsolicited | ||||||
11 | proposals can help meet such needs by improving the schedule | ||||||
12 | for delivery, lowering cost, and providing additional funding. | ||||||
13 | Obtaining private sector financing using a P3 model leverages | ||||||
14 | resources to meet the demand for new infrastructure and | ||||||
15 | services in the State of Illinois. Pension funds, private | ||||||
16 | investors, developers, contractors and other private entities | ||||||
17 | through a public-private partnership can use long-term | ||||||
18 | financing to invest in public infrastructure and services and | ||||||
19 | further use their private expertise in construction, | ||||||
20 | design-build, management and oversight, project life-cycle | ||||||
21 | planning and other areas of expertise not employed by public | ||||||
22 | entities. Private capital invested in infrastructure and | ||||||
23 | service investments have the potential to generate stable | ||||||
24 | long-term returns while ensuring public infrastructure and | ||||||
25 | services are progressively maintained to benefit Illinois | ||||||
26 | residents. Pension funds and insurance companies seek |
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1 | investments to match their long-term liabilities. | ||||||
2 | (d) It is hereby found and declared that citizens have a | ||||||
3 | right to transparency and public accountability, including | ||||||
4 | dissemination of information about the public benefits of P3 | ||||||
5 | projects, and open, equitable, transparent, proactive and | ||||||
6 | effective communications with the public achieved through | ||||||
7 | consistent communication activities that recognize the | ||||||
8 | respective contributions of the responsible public entity and | ||||||
9 | the partnering private entity. | ||||||
10 | (e) It is hereby found and declared that public-private | ||||||
11 | agreements entered into by private entities and responsible | ||||||
12 | public entities under this Act shall allow for: | ||||||
13 | (1) transparency, oversight, and public information | ||||||
14 | sharing; | ||||||
15 | (2) compliance with all State of Illinois and federal | ||||||
16 | environmental laws; | ||||||
17 | (3) fairness for local jurisdictions when negotiating | ||||||
18 | the public-private agreements; | ||||||
19 | (4) public-sector access to new revenue sources; | ||||||
20 | (5) new service delivery capacity; | ||||||
21 | (6) optimal sharing of risk based upon P3 best | ||||||
22 | practice, industry feedback, relevant project precedents | ||||||
23 | and prevailing market conditions; | ||||||
24 | (7) cost and schedule certainty; and | ||||||
25 | (8) predicted service quality, performance, innovation | ||||||
26 | and whole-of-life asset management.
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1 | Section 1-10. Actions serving a public purpose. Actions | ||||||
2 | pursuant to the Act serve the public purposes of this Act if | ||||||
3 | such actions facilitate the timely development, planning, | ||||||
4 | design, construction, maintenance, repair, rehabilitation, | ||||||
5 | expansion, financing, or operation of a qualifying project.
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6 | Section 1-15. Intent of Act. It is the intent of this Act | ||||||
7 | to: | ||||||
8 | (a) authorize responsible public entities to develop and | ||||||
9 | enter into public-private partnership agreements for | ||||||
10 | qualifying projects which result in the availability of such | ||||||
11 | projects to the public in a timely and less costly fashion, | ||||||
12 | thereby serving the public safety, benefit, and welfare; | ||||||
13 | (b) permit responsible public entities to receive and | ||||||
14 | consider unsolicited proposals from private sector parties in | ||||||
15 | a manner that eliminates the perception of bias; ensures | ||||||
16 | transparency, fairness, and best value for the responsible | ||||||
17 | public entity; and brings innovative concepts and ideas to | ||||||
18 | benefit responsible public entities; | ||||||
19 | (c) grant public and private entities the greatest | ||||||
20 | possible flexibility in contracting with each other for the | ||||||
21 | provision of infrastructure and public services; | ||||||
22 | (d) encourage investment in the State of Illinois by | ||||||
23 | private entities that facilitates services and the | ||||||
24 | development, planning, design, construction, maintenance, |
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1 | repair, rehabilitation, expansion, financing, and operation of | ||||||
2 | facilities; | ||||||
3 | (e) establish an Infrastructure Investment Commission that | ||||||
4 | focuses on supporting and promoting P3 procurement models and | ||||||
5 | unsolicited proposals that result in the construction, renewal | ||||||
6 | or material enhancement of public services and infrastructure; | ||||||
7 | (f) provide responsible public entities with: | ||||||
8 | (i) best-in-class project tools, expertise, and | ||||||
9 | resources to develop predictable procedures for developing | ||||||
10 | P3 projects and unsolicited proposals; and | ||||||
11 | (ii) a process to submit unsolicited proposals to | ||||||
12 | responsible public entities that protects their | ||||||
13 | proprietary trade information; | ||||||
14 | (g) provide responsible public entities and private | ||||||
15 | entities with: | ||||||
16 | (i) clarity on the intake process, evaluation, and | ||||||
17 | procedural aspects of unsolicited proposals; and | ||||||
18 | (ii) a process that is short and stable resulting in a | ||||||
19 | competitive market and lower costs; | ||||||
20 | (h) develop a steady flow of P3 projects to benefit both | ||||||
21 | private entities and responsible public entities; | ||||||
22 | (i) establish transparency and accountability guidelines | ||||||
23 | for P3 projects and unsolicited proposals; | ||||||
24 | (j) support the use of Illinois design professionals, | ||||||
25 | construction companies, and workers to the greatest extent | ||||||
26 | possible by offering the right to compete for work; |
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1 | (k) ensure open, equitable, transparent, proactive and | ||||||
2 | effective communication with the public; | ||||||
3 | (l) improve upon project development due diligence | ||||||
4 | practices; | ||||||
5 | (m) support the use of local, minority, women business | ||||||
6 | enterprises and economically disadvantaged firms to the | ||||||
7 | greatest extent possible; | ||||||
8 | (n) create jobs and provide training for those jobs for | ||||||
9 | minorities, women, and veterans to the greatest extent | ||||||
10 | possible; | ||||||
11 | (o) facilitate and encourage the use of pension funds to | ||||||
12 | develop qualifying projects; | ||||||
13 | (p) leverage private sector expertise and capital in | ||||||
14 | support of efficient, innovative and timely P3 investments; | ||||||
15 | (q) serve as a catalyst for the development of | ||||||
16 | public-private Partnerships and unsolicited proposals in the | ||||||
17 | State of Illinois; | ||||||
18 | (r) authorize public-private agreements that optimally | ||||||
19 | distribute the risk between the private and public-sector | ||||||
20 | partners; and | ||||||
21 | (s) support economic growth, clean air and water, a | ||||||
22 | healthy environment and stronger communities.
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23 | Section 1-20. Construction; authority. | ||||||
24 | (a) The powers conferred by this Act shall be liberally | ||||||
25 | construed to accomplish their purposes and are in addition and |
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1 | supplemental to the powers conferred by any other law. If any | ||||||
2 | other law or rule is inconsistent with this Act, this Act is | ||||||
3 | controlling as to any public-private agreement and financing | ||||||
4 | of any project subject to a public-private agreement entered | ||||||
5 | into under this Act. | ||||||
6 | (b) This Act contains full and complete authority for | ||||||
7 | responsible public entities to enter into agreements, | ||||||
8 | financing and leases with private entities to carry out the | ||||||
9 | activities described in this Act. Except as provided in this | ||||||
10 | Act, no procedure, proceeding, publication, notice, consent, | ||||||
11 | approval, order, or act by a responsible public entity or any | ||||||
12 | other State or local government or official is required to | ||||||
13 | enter into an agreement or lease, and no law to the contrary | ||||||
14 | affects, limits, or diminishes the authority for agreements | ||||||
15 | and leases with private entities. | ||||||
16 | (c) To the extent that this Act permits or requires a | ||||||
17 | responsible public entity or a private entity to carry out or | ||||||
18 | comply with any law other than this Act under a public-private | ||||||
19 | agreement, the action shall be carried out in conformity with | ||||||
20 | this Act. | ||||||
21 | (d) Each responsible public entity may exercise any powers | ||||||
22 | provided under this Act in participation or cooperation with | ||||||
23 | any governmental entity and enter into any contracts to | ||||||
24 | facilitate that participation or cooperation without | ||||||
25 | compliance with any other statute. Each responsible public | ||||||
26 | entity shall cooperate with each other and with other |
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1 | governmental entities in carrying out qualifying projects | ||||||
2 | under this Act. | ||||||
3 | (e) A unit of local government may not take any action that | ||||||
4 | would have the effect of impairing a public-private agreement | ||||||
5 | under this Act, except that this Section shall not diminish | ||||||
6 | any existing police power or other power provided by law to a | ||||||
7 | unit of local government. | ||||||
8 | (f) Notwithstanding any provision of law to the contrary, | ||||||
9 | any public-private agreement entered into under a | ||||||
10 | public-private partnership shall include a provision requiring | ||||||
11 | any employer on the project to enter into a labor peace | ||||||
12 | agreement with any bona fide labor organization representing, | ||||||
13 | or attempting to represent its employees, including employees | ||||||
14 | employed in classifications within the craft jurisdiction, or | ||||||
15 | in classifications called by different names when performing | ||||||
16 | similar duties.
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17 | Section 1-25. Definitions. As used in this Act: | ||||||
18 | "Affected jurisdiction" means the following: | ||||||
19 | (1) Any county, municipality, township, special | ||||||
20 | district, or unit designated as a unit of local government | ||||||
21 | by law in which all or a part of a qualifying project is | ||||||
22 | located. | ||||||
23 | (2) Any other public entity directly affected by the | ||||||
24 | qualifying project. | ||||||
25 | "Authority" means the Illinois State Toll Highway |
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1 | Authority. | ||||||
2 | "Commercially Confidential Meetings" means bilateral | ||||||
3 | meetings prior to the execution of a project agreement between | ||||||
4 | the responsible public entity and private sector entities, | ||||||
5 | along with their respective advisors, to discuss matters such | ||||||
6 | as the project agreement and proponent's suggested amendments | ||||||
7 | to the project agreement, project design matters, and | ||||||
8 | innovation submissions. | ||||||
9 | "Contractor" means a private entity that has entered into | ||||||
10 | a public-private agreement with the responsible public entity | ||||||
11 | to provide services to or on behalf of the responsible public | ||||||
12 | entity. | ||||||
13 | "Department" means the Illinois Department of | ||||||
14 | Transportation. | ||||||
15 | "Design-build agreement" means the agreement between the | ||||||
16 | selected private entity and the responsible public entity | ||||||
17 | under which the selected private entity agrees to furnish | ||||||
18 | design, construction, and related services for a facility | ||||||
19 | under this Act. | ||||||
20 | "Develop" or "development" means to do one or more of the | ||||||
21 | following: plan, design, develop, lease, acquire, install, | ||||||
22 | construct, reconstruct, rehabilitate, extend, or expand, or | ||||||
23 | provide any other service. | ||||||
24 | "Employees employed in classifications within the craft | ||||||
25 | jurisdiction" means all maintenance employees, including, but | ||||||
26 | not limited to, stationary engineers, building engineers, |
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1 | maintenance engineers, maintenance technicians, maintenance | ||||||
2 | mechanics, mechanics, operating engineers, operators, domestic | ||||||
3 | water operators, wastewater operators, water treatment | ||||||
4 | technicians, and other related jobs. | ||||||
5 | "Facility" means: | ||||||
6 | (1) a facility or project that serves a public | ||||||
7 | purpose, including, but not limited to, any new or | ||||||
8 | existing local, county or State road, highway, toll | ||||||
9 | highway, bridge, tunnel, intermodal facility; intercity or | ||||||
10 | high-speed passenger rail; rail project or facility; ferry | ||||||
11 | or mass transit facility; vehicle parking facility; | ||||||
12 | regional or local airport; seaport or waterway facility; | ||||||
13 | intelligent-transport system infrastructure or other | ||||||
14 | transportation technology project such as transit priority | ||||||
15 | signaling, fare collection, etc.; or other transportation | ||||||
16 | facility or infrastructure; any administrative facility | ||||||
17 | broadband-related project or facility; correctional | ||||||
18 | institution or facility; disaster mitigation facility; | ||||||
19 | green-energy related project or facility; energy-related | ||||||
20 | project or facility; fuel supply facility, oil or gas | ||||||
21 | pipeline; medical or nursing care facility; recreational | ||||||
22 | facility; tourism facility; solid waste management | ||||||
23 | facility or energy-from-waste facility; sporting or | ||||||
24 | cultural facility; or educational facility or other | ||||||
25 | building or facility that is used or will be used by a | ||||||
26 | public educational institution, or any other public |
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1 | facility or infrastructure or service that is used or will | ||||||
2 | be used by the public at large or in support of an accepted | ||||||
3 | public purpose or activity; | ||||||
4 | (2) an improvement, including on equipment, of a | ||||||
5 | structure that will be principally used by a public entity | ||||||
6 | or the public at large or that supports a service delivery | ||||||
7 | system in the public sector; or | ||||||
8 | (3) a sanitation, water, potable water, underground | ||||||
9 | water, wastewater, or surface water facility or other | ||||||
10 | related infrastructure; or infrastructure in support of an | ||||||
11 | accepted public purpose or activity. | ||||||
12 | "Labor Peace Agreement" means an agreement between a | ||||||
13 | licensee and any bona fide labor organization recognized under | ||||||
14 | the National Labor Relations Act as a bona fide labor | ||||||
15 | organization that, at a minimum, protects the State's | ||||||
16 | proprietary interests by prohibiting labor organizations and | ||||||
17 | members from engaging in picketing, work stoppages, boycotts, | ||||||
18 | and any other economic interference with the applicant's | ||||||
19 | business. This agreement means that the applicant has agreed | ||||||
20 | not to disrupt efforts by the bona fide labor organization to | ||||||
21 | communicate with, and attempt to organize and represent, the | ||||||
22 | applicant's employees. The agreement shall provide a bona fide | ||||||
23 | labor organization access at reasonable times to areas in | ||||||
24 | which the applicant's employees work, for the purpose of | ||||||
25 | meeting with employees to discuss their right to | ||||||
26 | representation, employment rights under State law, and terms |
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1 | and conditions of employment. This type of agreement shall not | ||||||
2 | mandate a particular method of election or certification of | ||||||
3 | the bona fide labor organization. | ||||||
4 | "Maintain" or "maintenance" includes ordinary maintenance, | ||||||
5 | repair, rehabilitation, capital maintenance, maintenance | ||||||
6 | replacement, and any other categories of maintenance that may | ||||||
7 | be designated by the responsible public entity. | ||||||
8 | "Operate" or "operation" means to do one or more of the | ||||||
9 | following: maintain, improve, equip, modify, or otherwise | ||||||
10 | operate. | ||||||
11 | "Private entity" means any combination of one or more | ||||||
12 | individuals, sole proprietorships, private corporations, | ||||||
13 | general partnerships, limited liability companies, limited | ||||||
14 | partnerships, joint ventures, business trusts, nonprofit | ||||||
15 | entities, or other business entities that are non-governmental | ||||||
16 | parties to a proposal for a qualifying project or an agreement | ||||||
17 | related to a qualifying project. A public agency may provide | ||||||
18 | services to a contractor as a subcontractor or subconsultant | ||||||
19 | without affecting the private status of the private entity and | ||||||
20 | the ability to enter into a public-private agreement. | ||||||
21 | "Project Development Fund" means a fund to assist | ||||||
22 | responsible public entities with public-private partnership | ||||||
23 | projects and unsolicited proposals. | ||||||
24 | "Project Labor Agreement" means a pre-hire collective | ||||||
25 | bargaining agreement with one or more labor organizations that | ||||||
26 | establishes the terms and conditions of employment for a |
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1 | specific project. | ||||||
2 | "Proposal" means all materials and documents prepared by | ||||||
3 | or on behalf of a private entity relating to the proposed | ||||||
4 | development, financing, or operation of a facility as a | ||||||
5 | qualifying project. | ||||||
6 | "Proposer" means a private entity that has submitted an | ||||||
7 | unsolicited proposal for a public-private agreement to a | ||||||
8 | responsible public entity under this Act or submitted a | ||||||
9 | proposal or statement of qualifications for a public-private | ||||||
10 | agreement in response to a request for proposals or a request | ||||||
11 | for qualifications for a project or services issued by a | ||||||
12 | responsible public entity. | ||||||
13 | "Public-private agreement" means the agreement between the | ||||||
14 | private contractor and the responsible public entity relating | ||||||
15 | to the development, financing, or operation of a qualifying | ||||||
16 | project. | ||||||
17 | "Public-private partnership" or "P3" means | ||||||
18 | performance-based contractual relationships between one or | ||||||
19 | more private entities and one or more responsible public | ||||||
20 | entities related to one or more qualifying projects. | ||||||
21 | "Qualifying project" or "Project" means one or more | ||||||
22 | services or projects serving a public purpose that is owned, | ||||||
23 | financed, controlled, or operated by a private entity in whole | ||||||
24 | or in part. | ||||||
25 | "Request for information" means all materials and | ||||||
26 | documents prepared by or on behalf of a responsible public |
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1 | entity to solicit information from private entities with | ||||||
2 | respect to qualifying projects. | ||||||
3 | "Request for proposals" means all materials and documents | ||||||
4 | prepared by or on behalf of a responsible public entity to | ||||||
5 | solicit proposals from private entities to enter into a | ||||||
6 | public-private agreement. | ||||||
7 | "Request for qualifications" means all materials and | ||||||
8 | documents prepared by or on behalf of a responsible public | ||||||
9 | entity to solicit statements of qualification from private | ||||||
10 | entities to enter into a public-private agreement. | ||||||
11 | "Responsible public entity" means a county, municipality, | ||||||
12 | school district, special district, or any other political | ||||||
13 | subdivision of the State or unit of local government; a public | ||||||
14 | body corporate and politic; or a regional entity that serves a | ||||||
15 | public purpose and is authorized to develop or operate a | ||||||
16 | qualifying project. "Responsible public entity" does not | ||||||
17 | include economic development or tourism partnerships, | ||||||
18 | councils, commissions or entities. | ||||||
19 | "Revenues" means all revenues, including any combination | ||||||
20 | of income; earnings and interest; user fees; lease payments; | ||||||
21 | allocations; federal, State, and local appropriations, grants, | ||||||
22 | loans, lines of credit, and credit guarantees; bond proceeds; | ||||||
23 | equity investments; service payments; or other receipts, | ||||||
24 | arising out of or in connection with a qualifying project, | ||||||
25 | including the development, financing, and operation of a | ||||||
26 | qualifying project. The term includes money received as |
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1 | grants, loans, lines of credit, credit guarantees, rebates or | ||||||
2 | other forms of aid for a qualifying project from the federal | ||||||
3 | government, the State, a unit of local government, or any | ||||||
4 | agency or instrumentality of the federal government, the | ||||||
5 | State, or a unit of local government. | ||||||
6 | "Services" means operations, such as, but not limited to | ||||||
7 | parking, cable, broadband, accounting, human resources, health | ||||||
8 | care, data management, and technology. | ||||||
9 | "Shortlist" means the process by which a responsible | ||||||
10 | public entity reviews, evaluates, and ranks statements of | ||||||
11 | qualifications submitted in response to a request for | ||||||
12 | qualifications and then identifies the proposers who are | ||||||
13 | eligible to submit a detailed proposal in response to a | ||||||
14 | request for proposals. The identified proposers constitute the | ||||||
15 | shortlist for the qualifying project to which the request for | ||||||
16 | proposals relates. | ||||||
17 | "Unit of local government" has the meaning ascribed to | ||||||
18 | that term in Section 1 of Article VII of the Constitution of | ||||||
19 | the State of Illinois and also means any unit designated as a | ||||||
20 | municipal corporation, or school district. | ||||||
21 | "Unsolicited Proposal" means a written proposal that is | ||||||
22 | submitted to one or more responsible public entities on the | ||||||
23 | initiative of the private sector entity or entities for the | ||||||
24 | purpose of developing a partnership, and that is not in | ||||||
25 | response to a formal or informal request issued by the | ||||||
26 | responsible public entity or entities. |
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1 | "User fees" or "tolls" means the rates, fees, or other | ||||||
2 | charges imposed by the contractor for use of all or a portion | ||||||
3 | of a qualifying project under a public-private agreement.
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4 | Article 2. Infrastructure Investment Commission | ||||||
5 | Section 2-1. Establishment. The Governor shall establish | ||||||
6 | the Infrastructure Investment Commission, which shall report | ||||||
7 | to and be funded by the Illinois Finance Authority and shall be | ||||||
8 | independent of other agencies and departments of the State.
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9 | Section 2-5. Duties of the Commission. The Commission | ||||||
10 | shall: | ||||||
11 | (a) assist responsible public entities with identifying | ||||||
12 | projects, including opportunities for project aggregation, for | ||||||
13 | which a public-private partnership may be appropriate; | ||||||
14 | (b) provide technical assistance and expertise to | ||||||
15 | responsible public entities on using public-private | ||||||
16 | partnerships to develop or operate qualifying projects, | ||||||
17 | including providing assistance with analyzing benefits and | ||||||
18 | costs and information on available innovative financing | ||||||
19 | options; | ||||||
20 | (c) supply template contracts; | ||||||
21 | (d) track proposed, ongoing, and completed private-public | ||||||
22 | partnerships; | ||||||
23 | (e) provide technical assistance in applying for federal |
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1 | funding grants and financing (e.g., Transportation | ||||||
2 | Infrastructure Finance and Innovation Act (TIFIA), TIFIA Lite, | ||||||
3 | TIFIA Rural Project Initiative, Regional Infrastructure | ||||||
4 | Accelerators, Capital Investment Grant, etc.) | ||||||
5 | (f) identify methods of encouraging competition for the | ||||||
6 | development or operation of qualifying projects; | ||||||
7 | (g) serve as a liaison to State or federal government | ||||||
8 | officials charged with promoting public-private infrastructure | ||||||
9 | partnerships, State executive directors of other | ||||||
10 | infrastructure investment commissions and regional or | ||||||
11 | metropolitan public-private partnership offices; | ||||||
12 | (h) conduct public and stakeholder engagement and | ||||||
13 | outreach, including efforts to encourage transparency and | ||||||
14 | information sharing regarding public-private partnerships; | ||||||
15 | (i) issue regular updates on the future pipeline of P3 | ||||||
16 | projects; | ||||||
17 | (j) promote best practices, including standardized | ||||||
18 | methodologies and processes; | ||||||
19 | (k) attract private investment to the State; | ||||||
20 | (l) develop a project development fund to: | ||||||
21 | (1) assist responsible public entities with assessing | ||||||
22 | the usefulness of the P3 model and unsolicited proposals | ||||||
23 | for capital procurement and service needs for specific | ||||||
24 | projects; | ||||||
25 | (2) assist responsible public entities with managing a | ||||||
26 | P3 procurement project or unsolicited proposal; |
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1 | (3) assist responsible public entities that are not | ||||||
2 | experienced with P3 procurement or unsolicited proposals; | ||||||
3 | (4) assist responsible public entities that are | ||||||
4 | undertaking new approaches or documenting P3 and | ||||||
5 | unsolicited proposal practices in a way that will assist | ||||||
6 | the Infrastructure Investment Commission and other | ||||||
7 | responsible public entities in future projects; | ||||||
8 | (5) assist with training costs for key staff of a | ||||||
9 | responsible public entity which is integral to the | ||||||
10 | successful development and implementation of a project; | ||||||
11 | (6) assist a public entity with P3 procurement or an | ||||||
12 | unsolicited proposal analysis that may include but may not | ||||||
13 | be limited to a market analysis, qualitative assessment | ||||||
14 | report, procurement options analysis, quantitative | ||||||
15 | analysis, risk analysis, implementation strategy, and | ||||||
16 | procurement documents; and | ||||||
17 | (7) assist with the engagement of external and | ||||||
18 | accredited P3 advisors and analysts; and | ||||||
19 | (m) approve all expenditures from the project development | ||||||
20 | fund.
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21 | Section 2-10. Governance of the Commission. | ||||||
22 | (a) The Commission shall be headed by a Chairman and a | ||||||
23 | 6-member board of directors. | ||||||
24 | (b) The board is responsible for the overall governance of | ||||||
25 | the Commission and shall adopt a 5-year corporate plan and |
| |||||||
| |||||||
1 | annual report. The board shall meet at least quarterly to | ||||||
2 | review the Commission's overall operation, receive committee | ||||||
3 | reports, discuss the Investment Infrastructure Commission's | ||||||
4 | performance and approve expenditures. The board shall review | ||||||
5 | the performance of the Executive Director annually. | ||||||
6 | (c) The Board of Directors shall establish committees to | ||||||
7 | support the board as needed, including: | ||||||
8 | (1) an audit committee to oversee the Commission's | ||||||
9 | standards of integrity and behavior; the Commission's | ||||||
10 | reporting of financial information and expenditures of the | ||||||
11 | Project Development Fund; and the Commission's internal | ||||||
12 | control systems, including the Commission's compliance | ||||||
13 | with all applicable legal and regulatory requirements; to | ||||||
14 | review the qualifications, independence and performance of | ||||||
15 | the Commission's external auditors; and to oversee the | ||||||
16 | Commission's enterprise risk management plan; and | ||||||
17 | (2) a budget committee, which shall develop an annual | ||||||
18 | revenue and expenditure plan, submit the plan to the IFA | ||||||
19 | for approval and funding, and monitor revenues and | ||||||
20 | expenditures during the course of the budget cycle.
| ||||||
21 | Section 2-15. Board Appointments. | ||||||
22 | (a) The membership of the Commission established pursuant | ||||||
23 | to this Article shall be appointed in accordance with the | ||||||
24 | following: | ||||||
25 | (1) Seven members shall be appointed by the Governor |
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1 | with the advice and consent of the Senate having | ||||||
2 | expertise, knowledge, or experience in infrastructure | ||||||
3 | development or operation, capital market and finance, | ||||||
4 | public-sector planning, or P3 procurement. No more than 4 | ||||||
5 | members of any one political party may serve as members of | ||||||
6 | the Commission at the same time. | ||||||
7 | (2) Members of the Commission shall represent to a | ||||||
8 | reasonable extent geographically diverse regions of the | ||||||
9 | State as well as diversity in race, ethnicity, and gender. | ||||||
10 | (3) Vacancies shall be filled for the unexpired term | ||||||
11 | in the same manner as original appointments. All | ||||||
12 | appointments shall be in writing and filed with the | ||||||
13 | Secretary of State as a public record. | ||||||
14 | (b) Of the members appointed by the Governor, one such | ||||||
15 | member shall be appointed as chairperson and shall hold office | ||||||
16 | for 4 years from the date of appointment, and until a successor | ||||||
17 | shall be duly appointed and qualified but shall be subject to | ||||||
18 | removal by the Executive Director of the Illinois Finance | ||||||
19 | Authority for incompetency, neglect of duty, or malfeasance. | ||||||
20 | (c) Of the original members, other than the chairperson, 3 | ||||||
21 | shall hold office for 2 years and 3 shall hold office for 4 | ||||||
22 | years from the date of appointment and until each respective | ||||||
23 | successor is duly appointed and qualified but shall be subject | ||||||
24 | to removal by the Executive Director of the Illinois Finance | ||||||
25 | Authority for incompetency, neglect of duty, or malfeasance. | ||||||
26 | In the case of vacancies in such offices during the recess of |
| |||||||
| |||||||
1 | the Senate, the Governor shall make a temporary appointment | ||||||
2 | until the next meeting of the Senate when the Governor shall | ||||||
3 | nominate a person to fill such office, and any person so | ||||||
4 | nominated, who is confirmed by the Senate, shall hold office | ||||||
5 | during the remainder of the term and until a successor shall be | ||||||
6 | appointed and qualified. The respective term of the first | ||||||
7 | members appointed shall be designated by the Governor at the | ||||||
8 | time of appointment, but their successors shall each be | ||||||
9 | appointed for a term of 4 years, except that any person | ||||||
10 | appointed to fill a vacancy shall serve only for the unexpired | ||||||
11 | term. Members shall be eligible for reappointment. Members | ||||||
12 | shall serve until their respective successors are duly | ||||||
13 | appointed and qualified. | ||||||
14 | (d) Each such member shall receive an annual salary of | ||||||
15 | $10,000, or as set by the Compensation Review Board, whichever | ||||||
16 | is greater, payable in monthly installments, and shall be | ||||||
17 | reimbursed for necessary expenses incurred in the performance | ||||||
18 | of duties under this Act.
| ||||||
19 | Section 2-20. Duties of the Chairperson of the Commission. | ||||||
20 | The chairperson shall preside at all meetings of the | ||||||
21 | Commission; shall exercise general supervision over all | ||||||
22 | powers, duties, obligations and functions of the Commission; | ||||||
23 | and shall approve or disapprove all resolutions, bylaws, | ||||||
24 | rules, rates, and regulations made and established by the | ||||||
25 | Commission, and if the chairperson approves, the chairperson |
| |||||||
| |||||||
1 | shall sign the same, and such as the chairperson shall not | ||||||
2 | approve, the chairperson shall return to the Commission with | ||||||
3 | objections thereto in writing at the next regular meeting of | ||||||
4 | the Commission occurring after the passage thereof. Such veto | ||||||
5 | may extend to any one or more items contained in such | ||||||
6 | resolution, bylaw, rule, rate, or regulation, or to its | ||||||
7 | entirety; and in case the veto extends to a part of such | ||||||
8 | resolution, bylaw, rule, rate, or regulation, the residue | ||||||
9 | thereof shall take effect and be in force, but in case the | ||||||
10 | chairperson shall fail to return any resolution, bylaw, rule, | ||||||
11 | rate, or regulation with objections thereto by the time | ||||||
12 | aforesaid, the chairperson shall be deemed to have approved | ||||||
13 | the same, and the same shall take effect accordingly. Upon the | ||||||
14 | return of any resolution, bylaw, rule, rate, or regulation by | ||||||
15 | the chairperson, the vote by which the same was passed shall be | ||||||
16 | reconsidered by the Commission, and if upon such | ||||||
17 | reconsideration two-thirds of all the members agree by yeas | ||||||
18 | and nays to pass the same, it shall go into effect | ||||||
19 | notwithstanding the chairperson's refusal to approve thereof. | ||||||
20 | The process of approving or disapproving all resolutions, | ||||||
21 | bylaws, rules, rates, and regulations, as well as the ability | ||||||
22 | of the members to override the disapproval of the chairperson, | ||||||
23 | under this Section shall be set forth in the Commission's | ||||||
24 | bylaws. Nothing in the Commission's bylaws, rules, or | ||||||
25 | regulations may be contrary to this Section.
|
| |||||||
| |||||||
1 | Section 2-25. Duties of the Executive Director of the | ||||||
2 | Commission. | ||||||
3 | (a) The Executive Director shall be appointed by a | ||||||
4 | majority vote of the Commission. | ||||||
5 | (b) The Executive Director shall have demonstrated | ||||||
6 | knowledge, training, or experience in 2 or more of the | ||||||
7 | following areas: | ||||||
8 | (1) infrastructure development or operation; | ||||||
9 | (2) capital markets and finance, including municipal | ||||||
10 | finance; | ||||||
11 | (3) public-sector planning; or | ||||||
12 | (4) P3 procurement. | ||||||
13 | (c) The Executive Director shall provide to the standing | ||||||
14 | committees of the House and Senate having jurisdiction over | ||||||
15 | services, transportation or infrastructure and post online a | ||||||
16 | report annually within 6 weeks of the end of each fiscal year | ||||||
17 | that: | ||||||
18 | (1) lists those public-private partnerships that: | ||||||
19 | (i) are expected to solicit bids within the next | ||||||
20 | fiscal year; | ||||||
21 | (ii) are in progress; | ||||||
22 | (iii) were completed during the prior fiscal year; | ||||||
23 | or | ||||||
24 | (iv) were removed from consideration during the | ||||||
25 | prior fiscal year; and | ||||||
26 | (2) summarizes actions taken by the Commission to |
| |||||||
| |||||||
1 | fulfill its duties pursuant to Section 2-5 of this | ||||||
2 | Article. | ||||||
3 | (d) The Executive Director shall be responsible to the | ||||||
4 | Commission for the proper administration of the affairs of the | ||||||
5 | Commission and policies adopted by the chairperson and members | ||||||
6 | of the Commission. | ||||||
7 | (e) All employees, as are necessary to the proper | ||||||
8 | functioning of the Commission, shall be appointed by and | ||||||
9 | report to the Executive Director with the consent of the | ||||||
10 | Commission. | ||||||
11 | (f) The Executive Director shall hold office for 4 years | ||||||
12 | from the date of appointment but shall be subject to removal by | ||||||
13 | the Commission for incompetency, neglect of duty or | ||||||
14 | malfeasance. | ||||||
15 | (g) The Executive Director shall receive a salary of | ||||||
16 | $15,000 per annum, or as set by a Compensation Review Board, | ||||||
17 | whichever is greater, payable in monthly installments, | ||||||
18 | together with reimbursement for necessary expenses incurred in | ||||||
19 | the performance of the duties of the Executive Director. The | ||||||
20 | Executive Director shall be eligible for reappointment.
| ||||||
21 | Section 2-30. Compliance with State records laws. The | ||||||
22 | Commission shall adhere to the Freedom of Information Act and | ||||||
23 | the State Records Act.
| ||||||
24 | Article 3. Qualification and Process |
| |||||||
| |||||||
1 | Section 3-1. Unsolicited proposals. | ||||||
2 | (a) A responsible public entity may receive unsolicited | ||||||
3 | proposals for a project and may thereafter enter into a | ||||||
4 | public-private agreement with a private entity, or a | ||||||
5 | consortium of private entities, for the building, upgrading, | ||||||
6 | providing of services, operating, ownership, or financing of | ||||||
7 | facilities. | ||||||
8 | (b) A responsible public entity may consider, evaluate and | ||||||
9 | accept an unsolicited proposal for a public-private | ||||||
10 | partnership project from a private entity if the proposal: (i) | ||||||
11 | is independently developed and drafted by the proposer without | ||||||
12 | responsible public entity supervision; (ii) shows that the | ||||||
13 | proposed project could benefit the people served by the | ||||||
14 | responsible public entity; (iii) includes a financing plan to | ||||||
15 | allow the project to move forward pursuant to the applicable | ||||||
16 | responsible public entity's budget and finance requirements; | ||||||
17 | and (iv) includes sufficient detail and information for the | ||||||
18 | responsible entity to evaluate the proposal in an objective | ||||||
19 | and timely manner and permit a determination of project | ||||||
20 | feasibility and cost-effectiveness. | ||||||
21 | (c) The unsolicited proposal shall include the following: | ||||||
22 | (1) an executive summary covering the major elements | ||||||
23 | of the proposal; | ||||||
24 | (2) a summary of qualifications concerning the | ||||||
25 | experience, expertise, technical competence and |
| |||||||
| |||||||
1 | qualifications of the private entity, and of each member | ||||||
2 | of its management team and other key employees, | ||||||
3 | consultants and subcontractors, including the name, | ||||||
4 | address and professional designation; | ||||||
5 | (3) a facilities project description, including, where | ||||||
6 | applicable: | ||||||
7 | (A) the limits, scope, and location of the | ||||||
8 | proposed project; | ||||||
9 | (B) right-of-way requirements; | ||||||
10 | (C) connections with other facilities and | ||||||
11 | improvements to those facilities necessary if the | ||||||
12 | project is developed; | ||||||
13 | (D) a conceptual project design; | ||||||
14 | (E) a statement of the project's relationship and | ||||||
15 | impact upon relevant existing plans of the responsible | ||||||
16 | public entity; | ||||||
17 | (4) a facilities project schedule, including where | ||||||
18 | applicable, estimates of: | ||||||
19 | (A) dates of contract award; | ||||||
20 | (B) start of construction; | ||||||
21 | (C) completion of construction; | ||||||
22 | (D) start of operations; and | ||||||
23 | (E) major maintenance or reconstruction activities | ||||||
24 | during the life of the proposed project agreement; | ||||||
25 | (5) an operating plan describing the operation of a | ||||||
26 | completed facility, if operation of a facility is part of |
| |||||||
| |||||||
1 | the proposal, describing the management structure and | ||||||
2 | approach, the proposed period of operations, enforcement, | ||||||
3 | emergency response and other relevant information; | ||||||
4 | (6) a finance plan describing the proposed financing | ||||||
5 | of the project identifying the source of funds to, where | ||||||
6 | applicable, design, construct, maintain and manage the | ||||||
7 | project during the term of the proposed contract; | ||||||
8 | (7) the legal basis for the project, including | ||||||
9 | verification that a private entity has the licenses and | ||||||
10 | certificates necessary to complete the project. | ||||||
11 | (d) Within 120 days after receiving an unsolicited | ||||||
12 | proposal, the responsible public entity shall complete a | ||||||
13 | preliminary evaluation of the unsolicited proposal and shall | ||||||
14 | either: | ||||||
15 | (1) if the preliminary evaluation is unfavorable, | ||||||
16 | return the proposal without further action; or | ||||||
17 | (2) if the preliminary evaluation is favorable, notify | ||||||
18 | the proposer that the responsible public entity will | ||||||
19 | further evaluate the proposal; or | ||||||
20 | (3) request amendments, clarification or modification | ||||||
21 | of the unsolicited proposal. | ||||||
22 | (e)(1) If the responsible public entity chooses to further | ||||||
23 | evaluate an unsolicited proposal with the intent to enter into | ||||||
24 | a public-private agreement for the proposed project, the | ||||||
25 | responsible public entity shall publish notice in a newspaper | ||||||
26 | of general circulation covering the location of the project at |
| |||||||
| |||||||
1 | least once a week for 2 weeks stating that the responsible | ||||||
2 | public entity has received a proposal and will accept other | ||||||
3 | proposals for the same project. The timeframe within which the | ||||||
4 | responsible public entity may accept other proposals shall be | ||||||
5 | determined by the responsible public entity on a | ||||||
6 | project-by-project basis based upon the complexity of the | ||||||
7 | qualifying project and the public benefit to be gained by | ||||||
8 | allowing a longer or shorter period of time within which other | ||||||
9 | proposals may be received; however, the timeframe for allowing | ||||||
10 | other proposals must be at least 21 days, but no more than 120 | ||||||
11 | days, after the initial date of publication. | ||||||
12 | (2) A copy of the notice must be mailed to each local | ||||||
13 | government in the affected jurisdiction. The responsible | ||||||
14 | public entity shall provide reasonably sufficient information | ||||||
15 | and the identity of its contact person to enable other private | ||||||
16 | entities to make proposals. | ||||||
17 | (3) If after no less than 120 days, no counter-proposal is | ||||||
18 | received, or if a counter-proposal is evaluated and found to | ||||||
19 | be equal to or inferior to the original unsolicited proposal, | ||||||
20 | the responsible public entity may proceed to negotiate a | ||||||
21 | contract with the original proposer. | ||||||
22 | (4) If after no less than 120 days one or more | ||||||
23 | counter-proposals meeting unsolicited proposal standards are | ||||||
24 | received, and if, in the opinion of the responsible public | ||||||
25 | entity, the counter-proposal is evaluated and found to be | ||||||
26 | superior to the original unsolicited proposal, the responsible |
| |||||||
| |||||||
1 | public entity shall proceed to determine the successful | ||||||
2 | participant through a final procurement phase known as "Best | ||||||
3 | and Final Offer" (BAFO). The responsible public entity shall | ||||||
4 | invite the original private sector party and the proponent | ||||||
5 | submitting the superior counter-proposal to engage in a BAFO | ||||||
6 | phase. The invitation to participate in the BAFO phase will | ||||||
7 | provide to each participating proposer: | ||||||
8 | (i) the general concepts that were considered superior | ||||||
9 | to the original proposal, while keeping proprietary | ||||||
10 | information contained in the proposals confidential to the | ||||||
11 | extent possible; and | ||||||
12 | (ii) the pre-established evaluation criteria or the | ||||||
13 | "basis of award" to be used to determine the successful | ||||||
14 | proponent. | ||||||
15 | (5) Offers received in response to the BAFO invitation | ||||||
16 | will be reviewed by the responsible public entity and scored | ||||||
17 | in accordance with a pre-established criterion, or | ||||||
18 | alternatively, in accordance with the "basis of award" | ||||||
19 | provision identified through the BAFO process. | ||||||
20 | (6) In all cases, the basis of award will be "best value" | ||||||
21 | to the responsible public entity, as determined by the | ||||||
22 | responsible public entity. | ||||||
23 | (f) After a comprehensive evaluation and acceptance of an | ||||||
24 | unsolicited proposal and any alternatives, the responsible | ||||||
25 | public entity may commence negotiations with a proposer, | ||||||
26 | considering whether: |
| |||||||
| |||||||
1 | (1) the proposal has received a favorable | ||||||
2 | comprehensive evaluation; | ||||||
3 | (2) the proposal is duplicative of existing | ||||||
4 | infrastructure project or services; | ||||||
5 | (3) the alternative proposal closely resembles a | ||||||
6 | pending competitive proposal for a public-private | ||||||
7 | partnership or other procurement; | ||||||
8 | (4) the proposal demonstrates a unique method, | ||||||
9 | approach, or concept; | ||||||
10 | (5) the facts and circumstances preclude or warrant | ||||||
11 | additional competition; | ||||||
12 | (6) the State has available any funds, debts, or | ||||||
13 | assets to contribute to the project; | ||||||
14 | (7) whether the facts and circumstances demonstrate | ||||||
15 | that the project will likely have a significant adverse | ||||||
16 | impact on State bond ratings; and | ||||||
17 | (8) whether indemnifications included in the proposal | ||||||
18 | are acceptable.
| ||||||
19 | Section 3-5. Competitive public-private partnership | ||||||
20 | procurements. | ||||||
21 | (a) A responsible public entity may solicit proposals for | ||||||
22 | a qualifying project from private entities. | ||||||
23 | (b) After the public notification period has expired, the | ||||||
24 | responsible public entity shall rank the proposals received in | ||||||
25 | terms of "best value". In ranking the proposals, the |
| |||||||
| |||||||
1 | responsible public entity may consider factors that include, | ||||||
2 | but are not limited to, public benefit; minority, women and | ||||||
3 | veteran participation; professional qualifications; general | ||||||
4 | business terms; innovative design techniques or cost-reduction | ||||||
5 | terms; and finance plans. The responsible public entity may | ||||||
6 | then begin negotiations for a public-private agreement with | ||||||
7 | the highest-ranked firm. If the responsible public entity is | ||||||
8 | not satisfied with the results of the negotiations, the | ||||||
9 | responsible public entity may terminate negotiations with the | ||||||
10 | proposer and negotiate with the second-ranked or | ||||||
11 | subsequent-ranked firms, in the order consistent with this | ||||||
12 | procedure. If only one proposal is received, the responsible | ||||||
13 | public entity may negotiate in good faith, and if the | ||||||
14 | responsible public entity is not satisfied with the results of | ||||||
15 | the negotiations, the responsible public entity may terminate | ||||||
16 | negotiations with the proposer.
| ||||||
17 | Section 3-10. Additional rights of responsible public | ||||||
18 | entity. In addition to any other rights under this Act, in | ||||||
19 | connection with any procurement under this Article, the | ||||||
20 | responsible public entity may: | ||||||
21 | (a) withdraw a request for information, a request for | ||||||
22 | qualifications, or a request for proposals at any time and, in | ||||||
23 | its discretion, publish a new request for qualifications or | ||||||
24 | request for proposals; | ||||||
25 | (b) decline to approve a proposal; |
| |||||||
| |||||||
1 | (c) decline to award a public-private agreement; | ||||||
2 | (d) request clarifications to any statement of | ||||||
3 | information, qualifications, or proposal received, seek one or | ||||||
4 | more revised proposals or one or more best and final offers, or | ||||||
5 | conduct negotiations with one or more private entities that | ||||||
6 | have submitted proposals; | ||||||
7 | (e) modify the terms, provisions, and conditions of a | ||||||
8 | request for qualification, request for proposals, technical | ||||||
9 | specifications, or form of public-private agreement during the | ||||||
10 | pendency of a procurement; | ||||||
11 | (f) interview proposers; and | ||||||
12 | (g) exercise any other rights available to the responsible | ||||||
13 | public entity under this Act, applicable law, and | ||||||
14 | administrative rule.
| ||||||
15 | Section 3-15. Confidentiality of P3 proposals; disclosure. | ||||||
16 | (a) Except as provided in paragraph (2) of subsection (e) | ||||||
17 | of Section 3-1, the responsible public entity may not disclose | ||||||
18 | the contents of proposals during discussions or negotiations | ||||||
19 | with potential proposers. | ||||||
20 | (b) The responsible public entity may, in its discretion | ||||||
21 | in accordance with the Freedom of Information Act, treat as | ||||||
22 | confidential all or some information relating to an | ||||||
23 | unsolicited proposal, including but not limited to discussions | ||||||
24 | or negotiations between the responsible public entity and | ||||||
25 | potential proposers. |
| |||||||
| |||||||
1 | (c) Notwithstanding subsections (a) and (b), and with the | ||||||
2 | exception of portions that are confidential under the Freedom | ||||||
3 | of Information Act, the terms of the selected offer negotiated | ||||||
4 | under this Act shall be available for inspection and copying | ||||||
5 | under the Freedom of Information Act after negotiations with | ||||||
6 | the proposers have been completed. | ||||||
7 | (d) When disclosing the terms of the selected offer under | ||||||
8 | subsection (c), the responsible public entity shall certify | ||||||
9 | that the information being disclosed accurately and completely | ||||||
10 | represents the terms of the selected offer. | ||||||
11 | (e) The responsible public entity shall disclose the | ||||||
12 | contents of all proposals, except the parts of the proposals | ||||||
13 | that may be treated as exempt in accordance with the Freedom of | ||||||
14 | Information Act, when either: | ||||||
15 | (1) the request for proposal process is withdrawn | ||||||
16 | under Section 3-10; or | ||||||
17 | (2) the public-private agreement has been executed and | ||||||
18 | the closing for each financing transaction required to | ||||||
19 | provide funding to carry out the agreement has been | ||||||
20 | conducted.
| ||||||
21 | Section 3-20. Interim agreement. Before or in connection | ||||||
22 | with the negotiation of a public-private agreement, the | ||||||
23 | responsible public entity may enter into an interim agreement | ||||||
24 | with the private entity proposing the development or operation | ||||||
25 | of the qualifying project. An interim agreement is |
| |||||||
| |||||||
1 | discretionary with the parties. An interim agreement may: | ||||||
2 | (1) authorize the private entity to commence | ||||||
3 | activities for which it may be compensated related to the | ||||||
4 | proposed qualifying project, including, but not limited | ||||||
5 | to, project planning and development, design, | ||||||
6 | environmental analysis and mitigation, survey, other | ||||||
7 | activities concerning any part of the proposed qualifying | ||||||
8 | project, and ascertaining the availability of financing | ||||||
9 | for the proposed facility or facilities. | ||||||
10 | (2) establish the process and timing of the | ||||||
11 | negotiation of the public-private agreement. | ||||||
12 | (3) contain such other provisions related to an aspect | ||||||
13 | of the development or operation of a qualifying project | ||||||
14 | that the responsible public entity and the private entity | ||||||
15 | deem appropriate.
| ||||||
16 | Section 3-25. Payment of stipulated amount for work | ||||||
17 | product of unsuccessful proposer; rights; liability. The | ||||||
18 | responsible public entity may pay a stipulated amount to an | ||||||
19 | unsuccessful proposer that submits a responsive proposal in | ||||||
20 | response to a proposal under this Article, in exchange for the | ||||||
21 | work product contained in that proposal. Upon payment of the | ||||||
22 | stipulated amount, and unless agreed otherwise by the parties: | ||||||
23 | (1) the responsible public entity and the unsuccessful | ||||||
24 | proposer jointly own the rights to, and may make use of, | ||||||
25 | any work product contained in the proposal, including the |
| |||||||
| |||||||
1 | technologies, techniques, methods, processes, ideas, and | ||||||
2 | information contained in the proposal, project design, and | ||||||
3 | project financial plan; and | ||||||
4 | (2) the use by an unsuccessful proposer of any part of | ||||||
5 | the work product contained in the proposal is at the sole | ||||||
6 | risk of the unsuccessful proposer and does not confer | ||||||
7 | liability on the responsible public entity.
| ||||||
8 | Section 3-30. Project awards. | ||||||
9 | (a) The responsible public entity may perform an | ||||||
10 | independent analysis of the proposed public-private | ||||||
11 | partnership that demonstrates the cost-effectiveness and | ||||||
12 | overall public benefit before the procurement process is | ||||||
13 | initiated or before the contract is awarded. | ||||||
14 | (b) The responsible public entity may approve the | ||||||
15 | development or operation of a qualifying project, or the | ||||||
16 | design or equipping of a qualifying project that is developed | ||||||
17 | or operated, if: | ||||||
18 | (1) there is a public need for the qualifying project, | ||||||
19 | or a benefit derived from a project of the type that the | ||||||
20 | private entity proposes as the qualifying project; | ||||||
21 | (2) the estimated cost of the qualifying project is | ||||||
22 | reasonable in relation to similar facilities; | ||||||
23 | (3) the private entity's plans will result in the | ||||||
24 | timely acquisition, design, construction, improvement, | ||||||
25 | renovation, expansion, equipping, maintenance, or |
| |||||||
| |||||||
1 | operation of the qualifying project; | ||||||
2 | (4) the proposed project or service is in the public's | ||||||
3 | best interest. | ||||||
4 | (c) The responsible public entity may charge a reasonable | ||||||
5 | fee to cover the costs of processing, reviewing, and | ||||||
6 | evaluating the request, including, but not limited to, | ||||||
7 | reasonable attorney or other professional fees and fees for | ||||||
8 | financial and technical advisors or consultants and for other | ||||||
9 | necessary advisors or consultants. | ||||||
10 | (d) Upon approval of a qualifying project, the responsible | ||||||
11 | public entity shall establish a date for the commencement of | ||||||
12 | activities related to the qualifying project. The responsible | ||||||
13 | public entity may extend the commencement date. | ||||||
14 | (e) Approval of a qualifying project by the responsible | ||||||
15 | public entity is subject to entering into a public-private | ||||||
16 | agreement with the private entity. | ||||||
17 | (f) The responsible public entity shall provide | ||||||
18 | notification to the public of its intent to commence | ||||||
19 | negotiations with a proposer. | ||||||
20 | (g) Before signing a public-private agreement, the | ||||||
21 | responsible public entity must consider a reasonable funding, | ||||||
22 | financing and affordability plan considering the project cost; | ||||||
23 | revenues by source; available financing; major assumptions; | ||||||
24 | internal rate of return on private investments, if | ||||||
25 | governmental funds are assumed to deliver a cost-feasible | ||||||
26 | project; and a total cash-flow analysis beginning with the |
| |||||||
| |||||||
1 | implementation of the project and extending for the term of | ||||||
2 | the public-private agreement except no longer than the life of | ||||||
3 | the project or 75 years, whichever is earlier. | ||||||
4 | (h) If the responsible public entity chooses to evaluate a | ||||||
5 | detailed proposal involving architecture, engineering, or | ||||||
6 | landscape architecture, it may require a professional review | ||||||
7 | and evaluation of the design and construction proposed to | ||||||
8 | ensure material quality standards, interior space use, budget | ||||||
9 | estimates, design and construction schedules, and sustainable | ||||||
10 | design and construction standards. | ||||||
11 | (i) Each facility project awarded by a responsible public | ||||||
12 | entity shall: | ||||||
13 | (1) Ensure that provision is made for the private | ||||||
14 | entity's performance and payment of subcontractors, | ||||||
15 | including, but not limited to, surety bonds, letters of | ||||||
16 | credit, parent company guarantees, and lender and equity | ||||||
17 | partner guarantees. Components of the qualifying project | ||||||
18 | that involve construction performance and payment, bonds | ||||||
19 | are subject to the recordation, notice, suit limitation, | ||||||
20 | and other requirements of the Public Construction Bond | ||||||
21 | Act. | ||||||
22 | (2) Ensure the performance and payment of | ||||||
23 | subcontractors. | ||||||
24 | (3) Ensure that the public-private agreement addresses | ||||||
25 | termination upon a material default of the public-private | ||||||
26 | agreement. |
| |||||||
| |||||||
1 | (4) Pay wages pursuant to prevailing wage standards.
| ||||||
2 | Article 4. Formation of Agreement | ||||||
3 | Section 4-1. Exercise of powers. | ||||||
4 | (a) A responsible public entity may exercise the powers | ||||||
5 | granted by this Act to undertake qualifying projects through | ||||||
6 | public-private agreements with one or more private entities. | ||||||
7 | (b) The Authority may enter into a public-private | ||||||
8 | partnership for qualifying projects on the toll highway system | ||||||
9 | such as commuter rail or high-speed rail lines, and | ||||||
10 | intelligent transportation infrastructure that will enhance | ||||||
11 | the safety, efficiency, and environmental quality of the State | ||||||
12 | highway system. The Authority may operate or provide | ||||||
13 | operational services such as toll collection on highways that | ||||||
14 | are developed or financed, or both, through a public-private | ||||||
15 | agreement entered into by another public entity, under an | ||||||
16 | agreement with the public entity or contractor responsible for | ||||||
17 | the transportation project.
| ||||||
18 | Section 4-5. Powers of contractor; user fees. A contractor | ||||||
19 | has: | ||||||
20 | (a) all powers allowed by law generally to a private | ||||||
21 | entity having the same form of organization as the contractor; | ||||||
22 | and | ||||||
23 | (b) the power to develop, own, control, finance, and |
| |||||||
| |||||||
1 | operate the qualifying project, and to impose and collect user | ||||||
2 | fees, subject to the terms of the public-private agreement. No | ||||||
3 | tolls or user fees may be imposed by the contractor except as | ||||||
4 | set forth in a public-private agreement.
| ||||||
5 | Section 4-10. Powers of contractor; property interests. | ||||||
6 | The contractor may own, lease, or acquire any property | ||||||
7 | interest or other right to develop, finance, or operate the | ||||||
8 | qualifying project, provided the qualifying project retains a | ||||||
9 | public purpose.
| ||||||
10 | Section 4-15. Powers of contractor; user classifications | ||||||
11 | and enforcement of rules. In operating the qualifying project, | ||||||
12 | the contractor may do the following: | ||||||
13 | (a) make user classifications as permitted in the | ||||||
14 | public-private agreement. | ||||||
15 | (b) as permitted in the public-private agreement or | ||||||
16 | otherwise with the consent of the responsible public entity, | ||||||
17 | make and enforce reasonable rules to the same extent that the | ||||||
18 | responsible public entity may make and enforce rules with | ||||||
19 | respect to a similar project.
| ||||||
20 | Article 5. Public-Private Agreements | ||||||
21 | Section 5-1. Provisions of agreement. | ||||||
22 | (a) Before beginning the development, financing, |
| |||||||
| |||||||
1 | operation, or any combination of the development, financing, | ||||||
2 | or operation of a qualifying project under this Act, the | ||||||
3 | contractor must enter into a public-private agreement with the | ||||||
4 | responsible public entity. Subject to the other provisions of | ||||||
5 | this Act, the responsible public entity and a private entity | ||||||
6 | may enter into a public-private agreement with respect to a | ||||||
7 | qualifying project. Subject to the requirements of this Act, a | ||||||
8 | public-private agreement may provide that the private entity, | ||||||
9 | acting on behalf of the responsible public entity, is | ||||||
10 | partially or entirely responsible for any combination of | ||||||
11 | developing, financing, or operating the qualifying project. | ||||||
12 | (b) The public-private agreement must be in writing and | ||||||
13 | may, as determined appropriate by the responsible public | ||||||
14 | entity for the particular qualifying project, provide for some | ||||||
15 | or all of the following: | ||||||
16 | (1) Development, planning, design, construction, | ||||||
17 | maintenance, repair, rehabilitation, expansion, providing | ||||||
18 | of services, financing, and operation of the qualifying | ||||||
19 | project under terms set forth in the public-private | ||||||
20 | agreement, in any form as deemed appropriate by the | ||||||
21 | responsible public entity, including, but not limited to, | ||||||
22 | a long-term concession or lease, or an agent to build, | ||||||
23 | finance, own, operate, maintain or any one or combination | ||||||
24 | of the same, as applicable and serving a public purpose, a | ||||||
25 | design-bid-build agreement, a design-build agreement, a | ||||||
26 | design-build-maintain agreement, a design-build-finance |
| |||||||
| |||||||
1 | agreement, a design-build-operate-maintain agreement and a | ||||||
2 | design-build-finance-operate-maintain agreement. | ||||||
3 | (2) Delivery of performance and payment bonds or other | ||||||
4 | performance security determined suitable by the | ||||||
5 | responsible public entity, including letters of credit, | ||||||
6 | United States bonds and notes, parent guaranties, and cash | ||||||
7 | collateral, in connection with the development, financing, | ||||||
8 | or operation of the qualifying project, in the forms and | ||||||
9 | amounts set forth in the public-private agreement or | ||||||
10 | otherwise determined as satisfactory by the responsible | ||||||
11 | public entity to protect the responsible public entity and | ||||||
12 | payment bond beneficiaries who have a direct contractual | ||||||
13 | relationship with the contractor or a subcontractor of the | ||||||
14 | contractor to supply labor or material. The payment or | ||||||
15 | performance bond or alternative form of performance | ||||||
16 | security is not required for the portion of a | ||||||
17 | public-private agreement that includes only design, | ||||||
18 | planning, or financing services, the performance of | ||||||
19 | preliminary studies, or the acquisition of real property. | ||||||
20 | (3) Review of plans for any development or operation, | ||||||
21 | or both, of the qualifying project by the responsible | ||||||
22 | public entity. | ||||||
23 | (4) Inspection of any construction of or improvements | ||||||
24 | to the qualifying project by the responsible public entity | ||||||
25 | or another entity designated by the responsible public | ||||||
26 | entity or under the public-private agreement to ensure |
| |||||||
| |||||||
1 | that the construction or improvements conform to the | ||||||
2 | standards set forth in the public-private agreement or are | ||||||
3 | otherwise acceptable to the responsible public entity. | ||||||
4 | (5) Maintenance of (i) one or more policies of public | ||||||
5 | liability insurance, copies of which shall be filed with | ||||||
6 | the responsible public entity accompanied by proofs of | ||||||
7 | coverage or (ii) self-insurance, each of which shall be in | ||||||
8 | the form and amount as set forth by the public-private | ||||||
9 | agreement or otherwise satisfactory to the responsible | ||||||
10 | public entity as reasonably sufficient to insure coverage | ||||||
11 | of tort liability to the public and employees and to | ||||||
12 | enable the continued operation of the qualifying project. | ||||||
13 | (6) Where operations are included within the | ||||||
14 | contractor's obligations under the public-private | ||||||
15 | agreement, monitoring of the maintenance practices of the | ||||||
16 | contractor by the responsible public entity or another | ||||||
17 | entity designated by the responsible public entity or | ||||||
18 | under the public-private agreement and the taking of the | ||||||
19 | actions the responsible public entity finds appropriate to | ||||||
20 | ensure that the qualifying project is properly maintained. | ||||||
21 | (7) Reimbursement to be paid to the responsible public | ||||||
22 | entity as set forth in the public-private agreement for | ||||||
23 | services provided by the responsible public entity. | ||||||
24 | (8) Filing of appropriate financial statements and | ||||||
25 | reports as set forth in the public-private agreement or as | ||||||
26 | otherwise in a form acceptable to the responsible public |
| |||||||
| |||||||
1 | entity on a periodic basis. | ||||||
2 | (9) Compensation or payments to the contractor. | ||||||
3 | Compensation or payments may include any or a combination | ||||||
4 | of the following: | ||||||
5 | (i) a base fee and additional fee for project | ||||||
6 | savings as the design-builder of a construction | ||||||
7 | project; | ||||||
8 | (ii) a development fee, payable on a lump sum | ||||||
9 | basis, progress payment basis, project milestone | ||||||
10 | basis, time and materials basis, or any other basis | ||||||
11 | considered appropriate by the responsible public | ||||||
12 | entity; | ||||||
13 | (iii) an operations fee, payable on a lump sum | ||||||
14 | basis, time and material basis, periodic basis, or any | ||||||
15 | other basis considered appropriate by the responsible | ||||||
16 | public entity; | ||||||
17 | (iv) some or all of the revenues, if any, arising | ||||||
18 | out of operation of the qualifying project; | ||||||
19 | (v) a maximum rate of return on investment or | ||||||
20 | return on equity or a combination of the 2; | ||||||
21 | (vi) in-kind services, materials, property, | ||||||
22 | equipment, or other items; | ||||||
23 | (vii) compensation in the event of any | ||||||
24 | termination; | ||||||
25 | (viii) availability payments or similar | ||||||
26 | arrangements whereby payments are made to the |
| |||||||
| |||||||
1 | contractor pursuant to the terms set forth in the | ||||||
2 | public-private agreements or related agreements; | ||||||
3 | (ix) other compensation set forth in the | ||||||
4 | public-private agreement or otherwise considered | ||||||
5 | appropriate by the responsible public entity. | ||||||
6 | (10) Compensation or payments to the responsible | ||||||
7 | public entity, if any. Compensation or payments to the | ||||||
8 | responsible public entity may include any one or | ||||||
9 | combination of the following: | ||||||
10 | (i) a concession or lease payment or other fee, | ||||||
11 | which may be payable upfront or on a periodic basis or | ||||||
12 | on another basis deemed appropriate by the responsible | ||||||
13 | public entity; | ||||||
14 | (ii) sharing of revenues, if any, from the | ||||||
15 | operation of the qualifying project; | ||||||
16 | (iii) sharing of project savings from the | ||||||
17 | construction or services of the qualifying project; | ||||||
18 | (iv) payment for any services, materials, | ||||||
19 | equipment, personnel, or other items provided by the | ||||||
20 | responsible public entity to the contractor under the | ||||||
21 | public-private agreement or in connection with the | ||||||
22 | qualifying project; | ||||||
23 | (v) other compensation set forth in the | ||||||
24 | public-private agreement or otherwise considered | ||||||
25 | appropriate by the parties. | ||||||
26 | (11) the date and terms of termination of the |
| |||||||
| |||||||
1 | contractor's authority and duties under the public-private | ||||||
2 | agreement and the circumstances under which the | ||||||
3 | contractor's authority and duties may be terminated before | ||||||
4 | that date; | ||||||
5 | (12) the term of a public-private agreement, including | ||||||
6 | all extensions, may not exceed 75 years. | ||||||
7 | (13) the termination of the public-private agreement, | ||||||
8 | upon which the authority of the contractor under this Act | ||||||
9 | ceases, except for those duties and obligations that | ||||||
10 | extend beyond the termination, as set forth in the | ||||||
11 | public-private agreement, and upon which all interests in | ||||||
12 | the qualifying project shall revert to the responsible | ||||||
13 | public entity; | ||||||
14 | (14) rights and remedies of the responsible public | ||||||
15 | entity if the contractor defaults or otherwise fails to | ||||||
16 | comply with the terms of the public-private agreement; | ||||||
17 | (15) procedures for the selection of professional | ||||||
18 | design firms and subcontractors, which shall include | ||||||
19 | procedures consistent with the Architectural, Engineering, | ||||||
20 | and Land Surveying Qualifications Based Selection Act for | ||||||
21 | the selection of professional design firms and may | ||||||
22 | include, in the discretion of the responsible public | ||||||
23 | entity, procedures consistent with the low bid procurement | ||||||
24 | procedures outlined in the Illinois Procurement Code for | ||||||
25 | the selection of construction companies; | ||||||
26 | (16) other terms, conditions, and provisions that the |
| |||||||
| |||||||
1 | responsible public entity finds are in the public's | ||||||
2 | interest. | ||||||
3 | (c) A project labor agreement shall be required by all | ||||||
4 | private entities performing construction of public | ||||||
5 | infrastructure for qualifying projects.
| ||||||
6 | Section 5-5. Additional requirements. | ||||||
7 | (a) The responsible public entity may fix the amounts of | ||||||
8 | user fees that a contractor may charge and collect for the use | ||||||
9 | of any part of a qualifying project in accordance with the | ||||||
10 | public-private agreement. In fixing the amounts, the | ||||||
11 | responsible public entity may establish amounts for the user | ||||||
12 | fees and may provide that any increases or decreases of those | ||||||
13 | fees shall be based upon the indices, methodologies, or other | ||||||
14 | factors the responsible public entity considers appropriate. | ||||||
15 | (b) A public-private agreement may: | ||||||
16 | (1) authorize the imposition of tolls; | ||||||
17 | (2) authorize the contractor to adjust the user fees for | ||||||
18 | the use of the qualifying project, so long as the amounts | ||||||
19 | charged and collected by the contractor do not exceed amounts | ||||||
20 | established by the responsible public entity under the | ||||||
21 | public-private agreement; | ||||||
22 | (3) provide that any adjustment by the contractor | ||||||
23 | permitted under paragraph (2) may be based on the indices, | ||||||
24 | methodologies, or other factors described in the | ||||||
25 | public-private agreement; |
| |||||||
| |||||||
1 | (4) authorize the contractor to charge and collect user | ||||||
2 | fees through methods, including, but not limited to, automatic | ||||||
3 | vehicle identification systems, electronic toll collection | ||||||
4 | systems, and, to the extent permitted by law, global | ||||||
5 | positioning system-based, photo-based, or video-based toll | ||||||
6 | collection enforcement, if, to the maximum extent feasible, | ||||||
7 | the contractor will (i) use open road tolling methods that | ||||||
8 | allow payment of tolls at highway speeds and (ii) comply with | ||||||
9 | United States Department of Transportation requirements and | ||||||
10 | best practices with respect to tolling methods; and | ||||||
11 | (5) authorize the collection of user fees by a third | ||||||
12 | party.
| ||||||
13 | Section 5-10. Loans for qualifying project. In the | ||||||
14 | public-private agreement, the responsible public entity may | ||||||
15 | agree to make loans for the development or operation, or both, | ||||||
16 | of the qualifying project from time to time from amounts | ||||||
17 | received from the federal government or any agency or | ||||||
18 | instrumentality of the federal government or from any State or | ||||||
19 | local agency. No loan shall extend beyond the life of the | ||||||
20 | qualifying project as the parties determine.
| ||||||
21 | Section 5-15. Terms and conditions in agreement. The | ||||||
22 | public-private agreement must incorporate the duties of the | ||||||
23 | contractor under this Act and may contain the other terms and | ||||||
24 | conditions that the responsible public entity determines serve |
| |||||||
| |||||||
1 | the public purpose of this Act. The public-private agreement | ||||||
2 | may contain provisions under which the responsible public | ||||||
3 | entity agrees to provide notice of default and cure rights for | ||||||
4 | the benefit of the contractor and the persons or entities | ||||||
5 | described in the public-private agreement that are providing | ||||||
6 | financing for the qualifying project. The public-private | ||||||
7 | agreement may contain any other lawful term or condition to | ||||||
8 | which the contractor and the responsible public entity | ||||||
9 | mutually agree, including provisions regarding change orders, | ||||||
10 | dispute resolution, required upgrades to the qualifying | ||||||
11 | project, tolling policies, changes and modifications to the | ||||||
12 | qualifying project, unavoidable delays, or provisions for a | ||||||
13 | loan or grant of public funds for the development or | ||||||
14 | operation, or both, of one or more qualifying projects.
| ||||||
15 | Section 5-20. Responsible public entity takeover of | ||||||
16 | qualifying project after termination or expiration. | ||||||
17 | (a) Upon the termination or expiration of the | ||||||
18 | public-private agreement, including a termination for default, | ||||||
19 | the responsible public entity shall have the right to take | ||||||
20 | over the qualifying project, and all of the right, title, and | ||||||
21 | interest in the qualifying project and all real property | ||||||
22 | acquired as a part of the project shall be held in the name of | ||||||
23 | the responsible public entity. | ||||||
24 | (b) If a responsible public entity elects to take over a | ||||||
25 | qualifying project as provided in subsection (a), the |
| |||||||
| |||||||
1 | responsible public entity may do the following: | ||||||
2 | (1) develop, finance, or operate the project, | ||||||
3 | including through a public-private agreement entered in | ||||||
4 | accordance with this Act; | ||||||
5 | (2) impose, collect, retain, and use user fees, if | ||||||
6 | any, for the project. | ||||||
7 | (c) If a responsible public entity elects to take over a | ||||||
8 | qualifying project as provided in subsection (a), the | ||||||
9 | responsible public entity may use the revenues, if any, for | ||||||
10 | any lawful purpose, including to: | ||||||
11 | (1) make payments to individuals or entities in | ||||||
12 | connection with any financing of the qualifying project, | ||||||
13 | including through a public-private agreement entered into | ||||||
14 | in accordance with this Act; | ||||||
15 | (2) permit a contractor to receive some or all of the | ||||||
16 | revenues under a public-private agreement entered into | ||||||
17 | under this Act; | ||||||
18 | (3) pay development costs of the project; | ||||||
19 | (4) pay current operation costs of the project or | ||||||
20 | facilities; | ||||||
21 | (5) pay the contractor for any compensation or payment | ||||||
22 | owing upon termination; | ||||||
23 | (6) pay for the development, financing, or operation | ||||||
24 | of any other project or projects the responsible public | ||||||
25 | entity deems appropriate. | ||||||
26 | (d) The full faith and credit of the State or any political |
| |||||||
| |||||||
1 | subdivision of the State or the responsible public entity is | ||||||
2 | not pledged to secure any financing of the contractor by the | ||||||
3 | election to take over the qualifying project. Assumption of | ||||||
4 | development or operation, or both, of the qualifying project | ||||||
5 | does not obligate the State or any political subdivision of | ||||||
6 | the State or the responsible public entity to pay any | ||||||
7 | obligation of the contractor.
| ||||||
8 | Section 5-25. Changes added by written amendment. Any | ||||||
9 | changes in the terms of the public-private agreement agreed to | ||||||
10 | by the parties shall be added to the public-private agreement | ||||||
11 | by written amendment.
| ||||||
12 | Section 5-30. Agreements with multiple private entities. | ||||||
13 | Notwithstanding any other provision of this Act, the | ||||||
14 | responsible public entity may enter into a public-private | ||||||
15 | agreement with multiple private entities if the responsible | ||||||
16 | public entity determines in writing that it is in the public | ||||||
17 | interest to do so.
| ||||||
18 | Section 5-35. Agreement provisions for qualifying project. | ||||||
19 | The public-private agreement may provide for all or part of | ||||||
20 | the development, financing, or operation of phases or segments | ||||||
21 | of the qualifying project.
| ||||||
22 | Article 6. Development and Operations Standards for Projects |
| |||||||
| |||||||
1 | Section 6-1. Standards of compliance for plans and | ||||||
2 | specifications. The plans and specifications, if any, for each | ||||||
3 | project developed under this Act must comply with: | ||||||
4 | (1) the responsible public entity's standards for | ||||||
5 | other projects of a similar nature or as otherwise | ||||||
6 | provided in the public-private agreement; | ||||||
7 | (2) the Professional Engineering Practice Act of 1989, | ||||||
8 | the Structural Engineering Practice Act of 1989, the | ||||||
9 | Illinois Architecture Practice Act of 1989, the | ||||||
10 | requirements of Section 30-22 of the Illinois Procurement | ||||||
11 | Code as applicable to responsible bidders, and the | ||||||
12 | Illinois Professional Land Surveyor Act of 1989; and | ||||||
13 | (3) any other applicable State or federal standards.
| ||||||
14 | Section 6-5. Highway projects; jurisdiction. Each highway | ||||||
15 | project constructed or operated under this Act is considered | ||||||
16 | to be part of: | ||||||
17 | (1) the State highway system for purposes of | ||||||
18 | identification, maintenance standards, and enforcement of | ||||||
19 | traffic laws if the highway project is under the | ||||||
20 | jurisdiction of the Department; | ||||||
21 | (2) the toll highway system for purposes of | ||||||
22 | identification, maintenance standards, and enforcement of | ||||||
23 | traffic laws if the highway project is under the | ||||||
24 | jurisdiction of the Authority; or |
| |||||||
| |||||||
1 | (3) a country or municipal road system for purposes of | ||||||
2 | identification, maintenance standards and enforcement of | ||||||
3 | traffic laws if the highway or road project is under the | ||||||
4 | jurisdiction of a county or municipality.
| ||||||
5 | Section 6-10. Service agreements. Any unit of local | ||||||
6 | government or State agency may enter into agreements with the | ||||||
7 | contractor for maintenance or other services under this Act.
| ||||||
8 | Section 6-15. Cooperation with federal and local agencies. | ||||||
9 | The responsible public entity shall seek the cooperation of | ||||||
10 | federal and local agencies to expedite all necessary federal | ||||||
11 | and local permits, licenses, and approvals necessary for | ||||||
12 | projects under this Act.
| ||||||
13 | Article 7. Taxation of Contractors | ||||||
14 | Section 7-1. Exemptions from property taxes. A project | ||||||
15 | under this Act and tangible personal property used exclusively | ||||||
16 | in connection with a project that are (a) owned by the | ||||||
17 | responsible public entity and leased, licensed, financed, or | ||||||
18 | otherwise conveyed to a contractor or (b) acquired, | ||||||
19 | constructed, or otherwise provided by a contractor on behalf | ||||||
20 | of the responsible public entity under the terms of a | ||||||
21 | public-private agreement are considered to be public property | ||||||
22 | devoted to an essential public and governmental function and |
| |||||||
| |||||||
1 | purpose. The property, and a contractor's leasehold estate or | ||||||
2 | interests in the property, are exempt from all ad valorem | ||||||
3 | property taxes and special assessments levied against property | ||||||
4 | by the State or any political subdivision of the State.
| ||||||
5 | Section 7-5. Exemptions from retail and use taxes. A | ||||||
6 | contractor or any other person purchasing tangible personal | ||||||
7 | property for incorporation into or improvement of a structure | ||||||
8 | or facility constituting or becoming part of the land included | ||||||
9 | in a project is entitled to the exemption from retail tax and | ||||||
10 | use tax provided under the Retailers' Occupation Tax Act and | ||||||
11 | Use Tax Act, respectively, with respect to that tangible | ||||||
12 | personal property.
| ||||||
13 | Section 7-10. Taxation of income. Income received by a | ||||||
14 | contractor under the terms of a public-private agreement is | ||||||
15 | subject to taxation in the same manner as income received by | ||||||
16 | other private entities.
| ||||||
17 | Article 8. Financial Arrangements | ||||||
18 | Section 8-1. Actions to obtain credit assistance. The | ||||||
19 | responsible public entity may do any combination of applying | ||||||
20 | for, executing, or endorsing applications submitted by private | ||||||
21 | entities to obtain federal, State, or local credit assistance | ||||||
22 | for qualifying projects developed, financed, or operated under |
| |||||||
| |||||||
1 | this Act, including loans, lines of credit, and guarantees.
| ||||||
2 | Section 8-5. Actions to obtain assistance. The responsible | ||||||
3 | public entity may take any action to obtain federal, State, or | ||||||
4 | local assistance for a qualifying project that serves the | ||||||
5 | public purpose of this Act and may enter into any contracts | ||||||
6 | required to receive federal assistance. The responsible public | ||||||
7 | entity may determine that it serves the public purpose of this | ||||||
8 | Act for all or any portion of the costs of a qualifying project | ||||||
9 | to be paid, directly or indirectly, from the proceeds of a | ||||||
10 | grant or loan, line of credit, or loan guarantee made by a | ||||||
11 | local, State, or federal government or any agency or | ||||||
12 | instrumentality of a local, State, or federal government. Such | ||||||
13 | assistance may include, but not be limited to, federal credit | ||||||
14 | assistance pursuant to the Transportation Infrastructure | ||||||
15 | Finance and Innovation Act and the Water Infrastructure and | ||||||
16 | Finance and Innovation Act.
| ||||||
17 | Section 8-10. Grants or loans from amounts received from | ||||||
18 | governments. The responsible public entity may agree to make | ||||||
19 | grants or loans for the development, financing, or operation | ||||||
20 | of a qualifying project from time to time, from amounts | ||||||
21 | received from the federal, State, or local government or any | ||||||
22 | agency or instrumentality of the federal, State, or local | ||||||
23 | government.
|
| |||||||
| |||||||
1 | Section 8-15. Terms and conditions of financing. Any | ||||||
2 | financing of a qualifying project may be in the amounts for the | ||||||
3 | term, and upon other terms and conditions that are determined | ||||||
4 | by the parties to the public-private agreement, and the | ||||||
5 | financing shall not exceed the life of the qualifying project, | ||||||
6 | not to exceed 75 years.
| ||||||
7 | Section 8-20. General powers for the purpose of financing. | ||||||
8 | For the purpose of financing a qualifying project, the | ||||||
9 | contractor and the responsible public entity may do the | ||||||
10 | following: | ||||||
11 | (1) propose to use any and all of the revenues | ||||||
12 | generated by a qualifying project to pay principal, | ||||||
13 | interest, costs of operation and maintenance of a | ||||||
14 | qualifying project; | ||||||
15 | (2) enter into grant agreements; | ||||||
16 | (3) access any other funds for design, construction, | ||||||
17 | operation or maintenance of a qualifying project available | ||||||
18 | to the responsible public entity or private entity, | ||||||
19 | including public or private pension funds; | ||||||
20 | (4) accept grants from the responsible public entity | ||||||
21 | or other public or private agency or entity; | ||||||
22 | (5) enter into a lease with a private entity for a | ||||||
23 | qualifying project and may lease a qualifying project to a | ||||||
24 | contractor under a public-private agreement; | ||||||
25 | (6) pay lease rentals for leases that the responsible |
| |||||||
| |||||||
1 | public entity has entered into under this Act that secure | ||||||
2 | bonds or debts issued or approved under this Article from | ||||||
3 | any legally available revenues, including: | ||||||
4 | (A) payments received from a contractor; | ||||||
5 | (B) federal highway revenues; | ||||||
6 | (C) distributions from the State highway fund; and | ||||||
7 | (D) other funds available to the responsible | ||||||
8 | public entity for such purpose.
| ||||||
9 | Section 8-25. Debt. | ||||||
10 | (a) For the purpose of financing a qualifying project, the | ||||||
11 | responsible public entity may by resolution borrow money and | ||||||
12 | enter into agreements, leases, contracts or subleases with a | ||||||
13 | private entity, and do the following: | ||||||
14 | (i) issue, sell, and refund bonds, notes of the | ||||||
15 | responsible public entity, debt, or other debt | ||||||
16 | obligations; | ||||||
17 | (ii) enter into loan agreements or other credit | ||||||
18 | facilities; and | ||||||
19 | (iii) secure any financing with a pledge of revenues, | ||||||
20 | security interest in, or lien on all or part of a property | ||||||
21 | subject to the agreement, including all of the party's | ||||||
22 | property interests in the qualifying project. | ||||||
23 | (b) Any term of such debt shall not exceed the earlier of | ||||||
24 | the term of the public-private agreement, the life of the | ||||||
25 | qualifying project, or 75 years. |
| |||||||
| |||||||
1 | (c) The bonds, notes and other forms of debt issued under | ||||||
2 | this Article: | ||||||
3 | (i) constitute the corporate obligations of the | ||||||
4 | responsible public entity; | ||||||
5 | (ii) do not constitute an indebtedness of the State | ||||||
6 | within the meaning or application of any constitutional | ||||||
7 | provision or limitation; and | ||||||
8 | (iii) are payable solely as to both principal and | ||||||
9 | interest and other associated fees from: | ||||||
10 | (1) the revenues from a lease to the responsible | ||||||
11 | public entity, if any; | ||||||
12 | (2) proceeds of bonds or notes, if any; | ||||||
13 | (3) investment earnings on proceeds of bonds or | ||||||
14 | notes; or | ||||||
15 | (4) other funds available to the responsible | ||||||
16 | public entity for such purpose.
| ||||||
17 | Section 8-30. Use of public funds for financing. For the | ||||||
18 | purpose of financing a qualifying project, public funds, | ||||||
19 | including public or private pension funds, may be used and | ||||||
20 | aggregated with funds provided by or on behalf of the | ||||||
21 | contractor or other private entities. The use of public funds | ||||||
22 | to finance all or a portion of qualifying projects authorized | ||||||
23 | under this Article constitutes authorized investments as | ||||||
24 | provided in Section 2 of the Public Funds Investment Act.
|
| |||||||
| |||||||
1 | Section 8-35. Private activity bonds for purpose of | ||||||
2 | financing. For the purpose of financing a qualifying project, | ||||||
3 | a responsible public entity is authorized to do any | ||||||
4 | combination of applying for, executing, or endorsing | ||||||
5 | applications for an allocation of tax-exempt bond financing | ||||||
6 | authorization provided by the United States Internal Revenue | ||||||
7 | Code, as well as financing available under any other federal | ||||||
8 | law or program.
| ||||||
9 | Section 8-40. Characterization of financing. Any bonds, | ||||||
10 | debt, or other securities or other financing issued by or on | ||||||
11 | behalf of a contractor for the purposes of a project | ||||||
12 | undertaken under this Act shall not be deemed to constitute a | ||||||
13 | debt of the responsible public entity, the State, or any | ||||||
14 | political subdivision of the State or a pledge of the faith and | ||||||
15 | credit of the responsible public entity, the State, or any | ||||||
16 | political subdivision of the State, for purposes of debt | ||||||
17 | limitation.
| ||||||
18 | Article 9. Acquisition of Property | ||||||
19 | Section 9-1. General. The responsible public entity may | ||||||
20 | exercise any power of condemnation or eminent domain, | ||||||
21 | including quick-take powers, that it has under law, for the | ||||||
22 | purpose of acquiring any lands or estates or interests in land | ||||||
23 | for a qualifying project to the extent provided in the |
| |||||||
| |||||||
1 | public-private agreement or otherwise to the extent that the | ||||||
2 | responsible public entity finds that the action serves the | ||||||
3 | public purpose of this Act and deems it appropriate in the | ||||||
4 | exercise of its powers under this Act.
| ||||||
5 | Section 9-5. Entering into grants of property interests. | ||||||
6 | The responsible public entity and a private entity may enter | ||||||
7 | into the leases, licenses, easements, and other grants of | ||||||
8 | property that the responsible public entity determines | ||||||
9 | necessary to carry out this Act.
| ||||||
10 | Article 10. Law Enforcement | ||||||
11 | Section 10-1. Powers and jurisdiction within limits of | ||||||
12 | qualifying project. | ||||||
13 | (a) All law enforcement officers of the State and of each | ||||||
14 | affected jurisdiction have the same powers and jurisdiction | ||||||
15 | within the limits of the qualifying project as they have in | ||||||
16 | their respective areas of jurisdiction. | ||||||
17 | (b) Law enforcement officers shall have access to the | ||||||
18 | qualifying project at any time for the purpose of exercising | ||||||
19 | their powers and jurisdiction.
| ||||||
20 | Section 10-5. Application of traffic and motor vehicle | ||||||
21 | laws; punishment for infractions. | ||||||
22 | (a) The traffic and motor vehicle laws of the State of |
| |||||||
| |||||||
1 | Illinois or, if applicable, any local jurisdiction shall be | ||||||
2 | the same as those applying to conduct on similar projects in | ||||||
3 | the State of Illinois or the local jurisdiction. | ||||||
4 | (b) Punishment for infractions and offenses shall be as | ||||||
5 | prescribed by law for conduct occurring on similar projects in | ||||||
6 | the State of Illinois or the local jurisdiction.
| ||||||
7 | Section 10-10. Law enforcement assistance. | ||||||
8 | (a) Each responsible public entity may enter into an | ||||||
9 | agreement between and among the private entity, the | ||||||
10 | responsible public entity, and the Illinois State Police or | ||||||
11 | other appropriate policing authority where the project is | ||||||
12 | located concerning the provision of law enforcement assistance | ||||||
13 | with respect to a qualifying project that is the subject of a | ||||||
14 | public-private agreement under this Act. | ||||||
15 | (b) Each responsible public entity is authorized to enter | ||||||
16 | into arrangements with the appropriate policing unit related | ||||||
17 | to costs incurred in providing law enforcement assistance | ||||||
18 | under this Act.
| ||||||
19 | Article 11. Additional Powers of Responsible Public Entity | ||||||
20 | with Respect to Qualifying Projects | ||||||
21 | Section 11-5. Contracts and agreements necessary to | ||||||
22 | performance of duties and execution of powers. Each | ||||||
23 | responsible public entity may make and enter into all |
| |||||||
| |||||||
1 | contracts and agreements necessary or incidental to the | ||||||
2 | performance of the responsible public entity's duties and the | ||||||
3 | execution of the responsible public entity's powers under this | ||||||
4 | Act. Except as otherwise required by law, these contracts or | ||||||
5 | agreements are not subject to any appropriation or approvals | ||||||
6 | other than the approval of the responsible public entity and | ||||||
7 | may be for any term of years and contain any terms that are | ||||||
8 | considered reasonable by the responsible public entity.
| ||||||
9 | Section 11-10. Payment of costs. A responsible public | ||||||
10 | entity may pay the costs incurred under a public-private | ||||||
11 | agreement entered into under this Act from any funds available | ||||||
12 | to the responsible public entity under this Act or any other | ||||||
13 | statute.
| ||||||
14 | Section 11-15. Action that would impair agreement | ||||||
15 | prohibited. A responsible public entity or other State or | ||||||
16 | local government may not take any action that would impair a | ||||||
17 | public-private agreement entered into under this Act.
| ||||||
18 | Article 90. Amendatory Changes | ||||||
19 | Section 90-5. The Freedom of Information Act is amended by | ||||||
20 | changing Section 7.5 as follows:
| ||||||
21 | (5 ILCS 140/7.5)
|
| |||||||
| |||||||
1 | Sec. 7.5. Statutory exemptions. To the extent provided for | ||||||
2 | by the statutes referenced below, the following shall be | ||||||
3 | exempt from inspection and copying: | ||||||
4 | (a) All information determined to be confidential | ||||||
5 | under Section 4002 of the Technology Advancement and | ||||||
6 | Development Act. | ||||||
7 | (b) Library circulation and order records identifying | ||||||
8 | library users with specific materials under the Library | ||||||
9 | Records Confidentiality Act. | ||||||
10 | (c) Applications, related documents, and medical | ||||||
11 | records received by the Experimental Organ Transplantation | ||||||
12 | Procedures Board and any and all documents or other | ||||||
13 | records prepared by the Experimental Organ Transplantation | ||||||
14 | Procedures Board or its staff relating to applications it | ||||||
15 | has received. | ||||||
16 | (d) Information and records held by the Department of | ||||||
17 | Public Health and its authorized representatives relating | ||||||
18 | to known or suspected cases of sexually transmissible | ||||||
19 | disease or any information the disclosure of which is | ||||||
20 | restricted under the Illinois Sexually Transmissible | ||||||
21 | Disease Control Act. | ||||||
22 | (e) Information the disclosure of which is exempted | ||||||
23 | under Section 30 of the Radon Industry Licensing Act. | ||||||
24 | (f) Firm performance evaluations under Section 55 of | ||||||
25 | the Architectural, Engineering, and Land Surveying | ||||||
26 | Qualifications Based Selection Act. |
| |||||||
| |||||||
1 | (g) Information the disclosure of which is restricted | ||||||
2 | and exempted under Section 50 of the Illinois Prepaid | ||||||
3 | Tuition Act. | ||||||
4 | (h) Information the disclosure of which is exempted | ||||||
5 | under the State Officials and Employees Ethics Act, and | ||||||
6 | records of any lawfully created State or local inspector | ||||||
7 | general's office that would be exempt if created or | ||||||
8 | obtained by an Executive Inspector General's office under | ||||||
9 | that Act. | ||||||
10 | (i) Information contained in a local emergency energy | ||||||
11 | plan submitted to a municipality in accordance with a | ||||||
12 | local emergency energy plan ordinance that is adopted | ||||||
13 | under Section 11-21.5-5 of the Illinois Municipal Code. | ||||||
14 | (j) Information and data concerning the distribution | ||||||
15 | of surcharge moneys collected and remitted by carriers | ||||||
16 | under the Emergency Telephone System Act. | ||||||
17 | (k) Law enforcement officer identification information | ||||||
18 | or driver identification information compiled by a law | ||||||
19 | enforcement agency or the Department of Transportation | ||||||
20 | under Section 11-212 of the Illinois Vehicle Code. | ||||||
21 | (l) Records and information provided to a residential | ||||||
22 | health care facility resident sexual assault and death | ||||||
23 | review team or the Executive Council under the Abuse | ||||||
24 | Prevention Review Team Act. | ||||||
25 | (m) Information provided to the predatory lending | ||||||
26 | database created pursuant to Article 3 of the Residential |
| |||||||
| |||||||
1 | Real Property Disclosure Act, except to the extent | ||||||
2 | authorized under that Article. | ||||||
3 | (n) Defense budgets and petitions for certification of | ||||||
4 | compensation and expenses for court appointed trial | ||||||
5 | counsel as provided under Sections 10 and 15 of the | ||||||
6 | Capital Crimes Litigation Act. This subsection (n) shall | ||||||
7 | apply until the conclusion of the trial of the case, even | ||||||
8 | if the prosecution chooses not to pursue the death penalty | ||||||
9 | prior to trial or sentencing. | ||||||
10 | (o) Information that is prohibited from being | ||||||
11 | disclosed under Section 4 of the Illinois Health and | ||||||
12 | Hazardous Substances Registry Act. | ||||||
13 | (p) Security portions of system safety program plans, | ||||||
14 | investigation reports, surveys, schedules, lists, data, or | ||||||
15 | information compiled, collected, or prepared by or for the | ||||||
16 | Department of Transportation under Sections 2705-300 and | ||||||
17 | 2705-616 of the Department of Transportation Law of the | ||||||
18 | Civil Administrative Code of Illinois, the Regional | ||||||
19 | Transportation Authority under Section 2.11 of the | ||||||
20 | Regional Transportation Authority Act, or the St. Clair | ||||||
21 | County Transit District under the Bi-State Transit Safety | ||||||
22 | Act. | ||||||
23 | (q) Information prohibited from being disclosed by the | ||||||
24 | Personnel Record Review Act. | ||||||
25 | (r) Information prohibited from being disclosed by the | ||||||
26 | Illinois School Student Records Act. |
| |||||||
| |||||||
1 | (s) Information the disclosure of which is restricted | ||||||
2 | under Section 5-108 of the Public Utilities Act.
| ||||||
3 | (t) All identified or deidentified health information | ||||||
4 | in the form of health data or medical records contained | ||||||
5 | in, stored in, submitted to, transferred by, or released | ||||||
6 | from the Illinois Health Information Exchange, and | ||||||
7 | identified or deidentified health information in the form | ||||||
8 | of health data and medical records of the Illinois Health | ||||||
9 | Information Exchange in the possession of the Illinois | ||||||
10 | Health Information Exchange Office due to its | ||||||
11 | administration of the Illinois Health Information | ||||||
12 | Exchange. The terms "identified" and "deidentified" shall | ||||||
13 | be given the same meaning as in the Health Insurance | ||||||
14 | Portability and Accountability Act of 1996, Public Law | ||||||
15 | 104-191, or any subsequent amendments thereto, and any | ||||||
16 | regulations promulgated thereunder. | ||||||
17 | (u) Records and information provided to an independent | ||||||
18 | team of experts under the Developmental Disability and | ||||||
19 | Mental Health Safety Act (also known as Brian's Law). | ||||||
20 | (v) Names and information of people who have applied | ||||||
21 | for or received Firearm Owner's Identification Cards under | ||||||
22 | the Firearm Owners Identification Card Act or applied for | ||||||
23 | or received a concealed carry license under the Firearm | ||||||
24 | Concealed Carry Act, unless otherwise authorized by the | ||||||
25 | Firearm Concealed Carry Act; and databases under the | ||||||
26 | Firearm Concealed Carry Act, records of the Concealed |
| |||||||
| |||||||
1 | Carry Licensing Review Board under the Firearm Concealed | ||||||
2 | Carry Act, and law enforcement agency objections under the | ||||||
3 | Firearm Concealed Carry Act. | ||||||
4 | (v-5) Records of the Firearm Owner's Identification | ||||||
5 | Card Review Board that are exempted from disclosure under | ||||||
6 | Section 10 of the Firearm Owners Identification Card Act. | ||||||
7 | (w) Personally identifiable information which is | ||||||
8 | exempted from disclosure under subsection (g) of Section | ||||||
9 | 19.1 of the Toll Highway Act. | ||||||
10 | (x) Information which is exempted from disclosure | ||||||
11 | under Section 5-1014.3 of the Counties Code or Section | ||||||
12 | 8-11-21 of the Illinois Municipal Code. | ||||||
13 | (y) Confidential information under the Adult | ||||||
14 | Protective Services Act and its predecessor enabling | ||||||
15 | statute, the Elder Abuse and Neglect Act, including | ||||||
16 | information about the identity and administrative finding | ||||||
17 | against any caregiver of a verified and substantiated | ||||||
18 | decision of abuse, neglect, or financial exploitation of | ||||||
19 | an eligible adult maintained in the Registry established | ||||||
20 | under Section 7.5 of the Adult Protective Services Act. | ||||||
21 | (z) Records and information provided to a fatality | ||||||
22 | review team or the Illinois Fatality Review Team Advisory | ||||||
23 | Council under Section 15 of the Adult Protective Services | ||||||
24 | Act. | ||||||
25 | (aa) Information which is exempted from disclosure | ||||||
26 | under Section 2.37 of the Wildlife Code. |
| |||||||
| |||||||
1 | (bb) Information which is or was prohibited from | ||||||
2 | disclosure by the Juvenile Court Act of 1987. | ||||||
3 | (cc) Recordings made under the Law Enforcement | ||||||
4 | Officer-Worn Body Camera Act, except to the extent | ||||||
5 | authorized under that Act. | ||||||
6 | (dd) Information that is prohibited from being | ||||||
7 | disclosed under Section 45 of the Condominium and Common | ||||||
8 | Interest Community Ombudsperson Act. | ||||||
9 | (ee) Information that is exempted from disclosure | ||||||
10 | under Section 30.1 of the Pharmacy Practice Act. | ||||||
11 | (ff) Information that is exempted from disclosure | ||||||
12 | under the Revised Uniform Unclaimed Property Act. | ||||||
13 | (gg) Information that is prohibited from being | ||||||
14 | disclosed under Section 7-603.5 of the Illinois Vehicle | ||||||
15 | Code. | ||||||
16 | (hh) Records that are exempt from disclosure under | ||||||
17 | Section 1A-16.7 of the Election Code. | ||||||
18 | (ii) Information which is exempted from disclosure | ||||||
19 | under Section 2505-800 of the Department of Revenue Law of | ||||||
20 | the Civil Administrative Code of Illinois. | ||||||
21 | (jj) Information and reports that are required to be | ||||||
22 | submitted to the Department of Labor by registering day | ||||||
23 | and temporary labor service agencies but are exempt from | ||||||
24 | disclosure under subsection (a-1) of Section 45 of the Day | ||||||
25 | and Temporary Labor Services Act. | ||||||
26 | (kk) Information prohibited from disclosure under the |
| |||||||
| |||||||
1 | Seizure and Forfeiture Reporting Act. | ||||||
2 | (ll) Information the disclosure of which is restricted | ||||||
3 | and exempted under Section 5-30.8 of the Illinois Public | ||||||
4 | Aid Code. | ||||||
5 | (mm) Records that are exempt from disclosure under | ||||||
6 | Section 4.2 of the Crime Victims Compensation Act. | ||||||
7 | (nn) Information that is exempt from disclosure under | ||||||
8 | Section 70 of the Higher Education Student Assistance Act. | ||||||
9 | (oo) Communications, notes, records, and reports | ||||||
10 | arising out of a peer support counseling session | ||||||
11 | prohibited from disclosure under the First Responders | ||||||
12 | Suicide Prevention Act. | ||||||
13 | (pp) Names and all identifying information relating to | ||||||
14 | an employee of an emergency services provider or law | ||||||
15 | enforcement agency under the First Responders Suicide | ||||||
16 | Prevention Act. | ||||||
17 | (qq) Information and records held by the Department of | ||||||
18 | Public Health and its authorized representatives collected | ||||||
19 | under the Reproductive Health Act. | ||||||
20 | (rr) Information that is exempt from disclosure under | ||||||
21 | the Cannabis Regulation and Tax Act. | ||||||
22 | (ss) Data reported by an employer to the Department of | ||||||
23 | Human Rights pursuant to Section 2-108 of the Illinois | ||||||
24 | Human Rights Act. | ||||||
25 | (tt) Recordings made under the Children's Advocacy | ||||||
26 | Center Act, except to the extent authorized under that |
| |||||||
| |||||||
1 | Act. | ||||||
2 | (uu) Information that is exempt from disclosure under | ||||||
3 | Section 50 of the Sexual Assault Evidence Submission Act. | ||||||
4 | (vv) Information that is exempt from disclosure under | ||||||
5 | subsections (f) and (j) of Section 5-36 of the Illinois | ||||||
6 | Public Aid Code. | ||||||
7 | (ww) Information that is exempt from disclosure under | ||||||
8 | Section 16.8 of the State Treasurer Act. | ||||||
9 | (xx) Information that is exempt from disclosure or | ||||||
10 | information that shall not be made public under the | ||||||
11 | Illinois Insurance Code. | ||||||
12 | (yy) Information prohibited from being disclosed under | ||||||
13 | the Illinois Educational Labor Relations Act. | ||||||
14 | (zz) Information prohibited from being disclosed under | ||||||
15 | the Illinois Public Labor Relations Act. | ||||||
16 | (aaa) Information prohibited from being disclosed | ||||||
17 | under Section 1-167 of the Illinois Pension Code. | ||||||
18 | (bbb) (ccc) Information that is prohibited from | ||||||
19 | disclosure by the Illinois Police Training Act and the | ||||||
20 | Illinois State Police Act. | ||||||
21 | (ccc) (ddd) Records exempt from disclosure under | ||||||
22 | Section
2605-304 of the Illinois Department of State | ||||||
23 | Police Law of the Civil
Administrative Code of Illinois. | ||||||
24 | (ddd) (bbb) Information prohibited from being | ||||||
25 | disclosed under Section 35 of the Address Confidentiality | ||||||
26 | for Victims of Domestic Violence, Sexual Assault, Human |
| |||||||
| |||||||
1 | Trafficking, or Stalking Act. | ||||||
2 | (eee) (ddd) Information prohibited from being | ||||||
3 | disclosed under subsection (b) of Section 75 of the | ||||||
4 | Domestic Violence Fatality Review Act. | ||||||
5 | (fff) Information that is exempt from disclosure under | ||||||
6 | Section 3-15 of the Public-Private Partnership Act. | ||||||
7 | (Source: P.A. 101-13, eff. 6-12-19; 101-27, eff. 6-25-19; | ||||||
8 | 101-81, eff. 7-12-19; 101-221, eff. 1-1-20; 101-236, eff. | ||||||
9 | 1-1-20; 101-375, eff. 8-16-19; 101-377, eff. 8-16-19; 101-452, | ||||||
10 | eff. 1-1-20; 101-466, eff. 1-1-20; 101-600, eff. 12-6-19; | ||||||
11 | 101-620, eff 12-20-19; 101-649, eff. 7-7-20; 101-652, eff. | ||||||
12 | 1-1-22; 101-656, eff. 3-23-21; 102-36, eff. 6-25-21; 102-237, | ||||||
13 | eff. 1-1-22; 102-292, eff. 1-1-22; 102-520, eff. 8-20-21; | ||||||
14 | 102-559, eff. 8-20-21; revised 10-5-21.)
| ||||||
15 | Section 90-10. The Public Funds Investment Act is amended | ||||||
16 | by changing Section 2 as follows:
| ||||||
17 | (30 ILCS 235/2) (from Ch. 85, par. 902)
| ||||||
18 | Sec. 2. Authorized investments.
| ||||||
19 | (a) Any public agency may invest any public funds as | ||||||
20 | follows:
| ||||||
21 | (1) in bonds, notes, certificates of indebtedness, | ||||||
22 | treasury bills or
other securities now or hereafter | ||||||
23 | issued, which are guaranteed by the full
faith and credit | ||||||
24 | of the United States of America as to principal and |
| |||||||
| |||||||
1 | interest;
| ||||||
2 | (2) in bonds, notes, debentures, or other similar | ||||||
3 | obligations of the
United States of America, its agencies, | ||||||
4 | and its instrumentalities;
| ||||||
5 | (3) in interest-bearing savings accounts, | ||||||
6 | interest-bearing
certificates of deposit or | ||||||
7 | interest-bearing time deposits or any other
investments | ||||||
8 | constituting direct obligations of any bank as defined by | ||||||
9 | the
Illinois Banking Act;
| ||||||
10 | (4) in short-term obligations of corporations
| ||||||
11 | organized in the United States with assets exceeding | ||||||
12 | $500,000,000 if (i)
such obligations are rated at the time | ||||||
13 | of purchase at one of the 3 highest
classifications | ||||||
14 | established by at least 2 standard rating services and
| ||||||
15 | which mature not later than 270 days from the date of | ||||||
16 | purchase, (ii)
such purchases do not exceed 10% of the | ||||||
17 | corporation's outstanding
obligations, and (iii) no more | ||||||
18 | than one-third of the public agency's funds
may be | ||||||
19 | invested in short-term obligations of corporations under | ||||||
20 | this paragraph (4);
| ||||||
21 | (4.5) in obligations of corporations organized in the | ||||||
22 | United States with assets exceeding $500,000,000 if (i) | ||||||
23 | such obligations are rated at the time of purchase at one | ||||||
24 | of the 3 highest classifications established by at least 2 | ||||||
25 | standard rating services and which mature more than 270 | ||||||
26 | days but less than 3 years from the date of purchase, (ii) |
| |||||||
| |||||||
1 | such purchases do not exceed 10% of the corporation's | ||||||
2 | outstanding obligations, and (iii) no more than one-third | ||||||
3 | of the public agency's funds may be invested in | ||||||
4 | obligations of corporations under this paragraph (4.5); or | ||||||
5 | (5) in money market mutual funds registered under the | ||||||
6 | Investment
Company Act of 1940, provided that the | ||||||
7 | portfolio of any such money market
mutual fund is limited | ||||||
8 | to obligations described in paragraph (1) or (2) of this
| ||||||
9 | subsection and to agreements to repurchase such | ||||||
10 | obligations.
| ||||||
11 | (a-1) In addition to any other investments authorized | ||||||
12 | under this Act, a
municipality, park district, forest preserve | ||||||
13 | district, conservation district, county, or other governmental | ||||||
14 | unit may invest its public funds in interest bearing bonds of | ||||||
15 | any
county, township, city, village, incorporated town, | ||||||
16 | municipal corporation, or
school district, of the State of | ||||||
17 | Illinois, of any other state, or of
any political subdivision | ||||||
18 | or
agency of the State of Illinois or of any other state, | ||||||
19 | whether the interest
earned thereon is taxable or tax-exempt | ||||||
20 | under federal law. The bonds shall
be registered in the name of | ||||||
21 | the municipality, park district, forest preserve district, | ||||||
22 | conservation district, county, or other governmental unit, or | ||||||
23 | held under a custodial agreement at a bank. The bonds shall be | ||||||
24 | rated at the
time of purchase within the 4 highest general | ||||||
25 | classifications established by a
rating service of nationally | ||||||
26 | recognized expertise in rating bonds of states and
their |
| |||||||
| |||||||
1 | political subdivisions.
| ||||||
2 | (b) Investments may be made only in banks which are | ||||||
3 | insured by the
Federal Deposit Insurance Corporation. Any | ||||||
4 | public agency may invest any
public funds in short term | ||||||
5 | discount obligations of the Federal National
Mortgage | ||||||
6 | Association or in shares or other forms of securities legally
| ||||||
7 | issuable by savings banks or savings and loan associations | ||||||
8 | incorporated under
the laws of this State or any other state or | ||||||
9 | under the laws of the United
States. Investments may be made | ||||||
10 | only in those savings banks or savings and
loan associations | ||||||
11 | the shares, or investment certificates of which are insured
by | ||||||
12 | the Federal Deposit Insurance Corporation. Any such securities | ||||||
13 | may be
purchased at the offering or market price thereof at the | ||||||
14 | time of such
purchase. All such securities so purchased shall | ||||||
15 | mature or be redeemable on
a date or dates prior to the time | ||||||
16 | when, in the judgment of
such governing authority, the public | ||||||
17 | funds so invested will be required
for expenditure by such | ||||||
18 | public agency or its governing authority. The
expressed | ||||||
19 | judgment of any such governing authority as to the time when
| ||||||
20 | any public funds will be required for expenditure or be | ||||||
21 | redeemable is
final and conclusive. Any public agency may | ||||||
22 | invest any public funds in
dividend-bearing share accounts, | ||||||
23 | share certificate accounts or class of
share accounts of a | ||||||
24 | credit union chartered under the laws of this State
or the laws | ||||||
25 | of the United States; provided, however, the principal office
| ||||||
26 | of any such credit union must be located within the State of |
| |||||||
| |||||||
1 | Illinois.
Investments may be made only in those credit unions | ||||||
2 | the accounts of which
are insured by applicable law.
| ||||||
3 | (c) For purposes of this Section, the term "agencies of | ||||||
4 | the United States
of America" includes: (i) the federal land | ||||||
5 | banks, federal intermediate
credit banks, banks for | ||||||
6 | cooperative, federal farm credit banks, or any other
entity | ||||||
7 | authorized to issue debt obligations under the Farm Credit Act | ||||||
8 | of
1971 (12 U.S.C. 2001 et seq.) and Acts amendatory thereto; | ||||||
9 | (ii) the federal
home loan banks and the federal home loan | ||||||
10 | mortgage corporation; and (iii)
any other agency created by | ||||||
11 | Act of Congress.
| ||||||
12 | (d) Except for pecuniary interests permitted under | ||||||
13 | subsection (f) of
Section 3-14-4 of the Illinois Municipal | ||||||
14 | Code or under Section 3.2 of
the Public Officer Prohibited | ||||||
15 | Practices Act, no person acting as treasurer
or financial | ||||||
16 | officer or who is employed in any similar capacity by or for a
| ||||||
17 | public agency may do any of the following:
| ||||||
18 | (1) have any interest, directly or indirectly, in any | ||||||
19 | investments in
which the agency is authorized to invest.
| ||||||
20 | (2) have any interest, directly or indirectly, in the | ||||||
21 | sellers,
sponsors, or managers of those investments.
| ||||||
22 | (3) receive, in any manner, compensation of any kind | ||||||
23 | from any
investments in which the agency is authorized to | ||||||
24 | invest.
| ||||||
25 | (e) Any public agency may also invest any public funds in a | ||||||
26 | Public
Treasurers' Investment Pool created under Section 17 of |
| |||||||
| |||||||
1 | the State Treasurer
Act. Any public agency may also invest any | ||||||
2 | public funds in a fund managed,
operated, and administered by | ||||||
3 | a bank, subsidiary of a bank, or
subsidiary of a bank holding | ||||||
4 | company or use the services of such an entity to
hold and | ||||||
5 | invest or advise regarding the investment of any public funds.
| ||||||
6 | (f) To the extent a public agency has custody of funds not | ||||||
7 | owned by it or
another public agency and does not otherwise | ||||||
8 | have authority to invest
such funds, the public agency may | ||||||
9 | invest such funds as if they were its
own. Such funds must be | ||||||
10 | released to the appropriate person at the
earliest reasonable | ||||||
11 | time, but in no case exceeding 31 days, after the
private | ||||||
12 | person becomes entitled to the receipt of them. All earnings
| ||||||
13 | accruing on any investments or deposits made pursuant to the | ||||||
14 | provisions
of this Act shall be credited to the public agency | ||||||
15 | by or for which such
investments or deposits were made, except | ||||||
16 | as provided otherwise in Section
4.1 of the State Finance Act | ||||||
17 | or the Local Governmental Tax Collection Act,
and except where | ||||||
18 | by specific statutory provisions such earnings are
directed to | ||||||
19 | be credited to and paid to a particular fund.
| ||||||
20 | (g) A public agency may purchase or invest in repurchase | ||||||
21 | agreements of
government securities having the meaning set out | ||||||
22 | in the Government
Securities Act of 1986, as now or hereafter | ||||||
23 | amended or succeeded, subject to the provisions of said Act | ||||||
24 | and the
regulations issued thereunder. The government | ||||||
25 | securities, unless
registered or inscribed in the name of the | ||||||
26 | public agency, shall be
purchased through banks or trust |
| |||||||
| |||||||
1 | companies authorized to do business in the
State of Illinois.
| ||||||
2 | (h) Except for repurchase agreements of government | ||||||
3 | securities which are
subject to the Government Securities Act | ||||||
4 | of 1986, as now or hereafter amended or succeeded, no public | ||||||
5 | agency may
purchase or invest in instruments which constitute | ||||||
6 | repurchase agreements,
and no financial institution may enter | ||||||
7 | into such an agreement with or on
behalf of any public agency | ||||||
8 | unless the instrument and the transaction meet
the following | ||||||
9 | requirements:
| ||||||
10 | (1) The securities, unless registered or inscribed in | ||||||
11 | the name of the
public agency, are purchased through banks | ||||||
12 | or trust companies authorized to
do business in the State | ||||||
13 | of Illinois.
| ||||||
14 | (2) An authorized public officer after ascertaining | ||||||
15 | which firm will give
the most favorable rate of interest, | ||||||
16 | directs the custodial bank to
"purchase" specified | ||||||
17 | securities from a designated institution.
The "custodial | ||||||
18 | bank" is the bank or trust company, or agency of
| ||||||
19 | government, which acts for the public agency in connection | ||||||
20 | with repurchase
agreements involving the investment of | ||||||
21 | funds by the public agency. The
State Treasurer may act as | ||||||
22 | custodial bank for public agencies executing
repurchase | ||||||
23 | agreements. To the extent the Treasurer acts in this | ||||||
24 | capacity,
he is hereby authorized to pass through to such | ||||||
25 | public agencies any charges
assessed by the Federal | ||||||
26 | Reserve Bank.
|
| |||||||
| |||||||
1 | (3) A custodial bank must be a member bank of the | ||||||
2 | Federal Reserve System
or maintain accounts with member | ||||||
3 | banks. All transfers of book-entry
securities must be | ||||||
4 | accomplished on a Reserve Bank's computer records
through | ||||||
5 | a member bank of the Federal Reserve System. These | ||||||
6 | securities must
be credited to the public agency on the | ||||||
7 | records of the custodial bank and
the transaction must be | ||||||
8 | confirmed in writing to the public agency by
the custodial | ||||||
9 | bank.
| ||||||
10 | (4) Trading partners shall be limited to banks or | ||||||
11 | trust companies
authorized to do business in the State of | ||||||
12 | Illinois or to registered primary
reporting dealers.
| ||||||
13 | (5) The security interest must be perfected.
| ||||||
14 | (6) The public agency enters into a written master | ||||||
15 | repurchase agreement
which outlines the basic | ||||||
16 | responsibilities and liabilities of both buyer and
seller.
| ||||||
17 | (7) Agreements shall be for periods of 330 days or | ||||||
18 | less.
| ||||||
19 | (8) The authorized public officer of the public agency | ||||||
20 | informs the
custodial bank in writing of the maturity | ||||||
21 | details of the repurchase agreement.
| ||||||
22 | (9) The custodial bank must take delivery of and | ||||||
23 | maintain the
securities in its custody for the account of | ||||||
24 | the public agency and confirm
the transaction in writing | ||||||
25 | to the public agency. The Custodial Undertaking
shall | ||||||
26 | provide that the custodian takes possession of the |
| |||||||
| |||||||
1 | securities
exclusively for the public agency; that the | ||||||
2 | securities are free of any
claims against the trading | ||||||
3 | partner; and any claims by the custodian are
subordinate | ||||||
4 | to the public agency's claims to rights to those | ||||||
5 | securities.
| ||||||
6 | (10) The obligations purchased by a public agency may | ||||||
7 | only be sold or
presented for redemption or payment by the | ||||||
8 | fiscal agent bank or trust
company holding the obligations | ||||||
9 | upon the written instruction of the
public agency or | ||||||
10 | officer authorized to make such investments.
| ||||||
11 | (11) The custodial bank shall be liable to the public | ||||||
12 | agency for any
monetary loss suffered by the public agency | ||||||
13 | due to the failure of the
custodial bank to take and | ||||||
14 | maintain possession of such securities.
| ||||||
15 | (i) Notwithstanding the foregoing restrictions on | ||||||
16 | investment in
instruments constituting repurchase agreements | ||||||
17 | the Illinois Housing
Development Authority may invest in, and | ||||||
18 | any financial institution with
capital of at least | ||||||
19 | $250,000,000 may act as custodian for, instruments
that | ||||||
20 | constitute repurchase agreements, provided that the Illinois | ||||||
21 | Housing
Development Authority, in making each such investment, | ||||||
22 | complies with the
safety and soundness guidelines for engaging | ||||||
23 | in repurchase transactions
applicable to federally insured | ||||||
24 | banks, savings banks, savings and loan
associations or other | ||||||
25 | depository institutions as set forth in the Federal
Financial | ||||||
26 | Institutions Examination Council Policy Statement Regarding
|
| |||||||
| |||||||
1 | Repurchase Agreements and any regulations issued, or which may | ||||||
2 | be issued by the
supervisory federal authority pertaining | ||||||
3 | thereto and any amendments thereto;
provided further that the | ||||||
4 | securities shall be either (i) direct general
obligations of, | ||||||
5 | or obligations the payment of the principal of and/or interest
| ||||||
6 | on which are unconditionally guaranteed by, the United States | ||||||
7 | of America or
(ii) any obligations of any agency, corporation | ||||||
8 | or subsidiary thereof
controlled or supervised by and acting | ||||||
9 | as an instrumentality of the United
States Government pursuant | ||||||
10 | to authority granted by the Congress of the United
States and | ||||||
11 | provided further that the security interest must be perfected | ||||||
12 | by
either the Illinois Housing Development Authority, its | ||||||
13 | custodian or its agent
receiving possession of the securities | ||||||
14 | either physically or transferred through
a nationally | ||||||
15 | recognized book entry system.
| ||||||
16 | (i-5) In addition to all other investments authorized | ||||||
17 | under this Section, a public agency may invest in a financial | ||||||
18 | arrangement that finances a qualifying project authorized | ||||||
19 | under Article 8 of the Public-Private Partnership Act. | ||||||
20 | (j) In addition to all other investments authorized
under | ||||||
21 | this Section, a community college district may
invest public | ||||||
22 | funds in any mutual funds that
invest primarily in corporate | ||||||
23 | investment grade or global government short term
bonds.
| ||||||
24 | Purchases of mutual funds that invest primarily in global | ||||||
25 | government short
term bonds shall be limited to funds with | ||||||
26 | assets of at least $100 million and
that are rated at the time |
| |||||||
| |||||||
1 | of purchase as one of the 10 highest classifications
| ||||||
2 | established by a recognized rating service. The investments | ||||||
3 | shall be subject
to approval by the local community college | ||||||
4 | board of trustees. Each community
college board of trustees | ||||||
5 | shall develop a policy regarding the percentage of
the | ||||||
6 | college's investment portfolio that can be invested in such | ||||||
7 | funds.
| ||||||
8 | Nothing in this Section shall be construed to authorize an
| ||||||
9 | intergovernmental risk management entity to accept the deposit | ||||||
10 | of public funds
except for risk management purposes.
| ||||||
11 | (Source: P.A. 102-285, eff. 8-6-21.)".
|