Bill Text: MA H3355 | 2009-2010 | 186th General Court | Introduced
Bill Title: Establishing a transportation infrastructure revolving fund in the Commonwealth
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2009-01-20 - Public Hearing date 9/10 at 11:00 AM in Hearing Room B1 [H3355 Detail]
Download: Massachusetts-2009-H3355-Introduced.html
The Commonwealth of Massachusetts
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PRESENTED BY:
Joseph F. Wagner
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To the
Honorable Senate and House of Representatives of the Commonwealth of
Massachusetts in General
Court assembled:
The undersigned legislators and/or citizens respectfully petition for the passage of the accompanying bill:
An Act establishing the Massachusetts transportation infrastructure revolving fund.
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PETITION OF:
|
Name: |
District/Address: |
|
Joseph F. Wagner |
8th Hampden |
[SIMILAR MATTER FILED IN PREVIOUS
SESSION
SEE HOUSE, NO. 3673 OF 2007-2008.]
The Commonwealth of
Massachusetts
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In the Year Two Thousand and Nine
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An Act establishing the Massachusetts transportation infrastructure
revolving fund.
Be
it enacted by the Senate and House of Representatives in General Court
assembled, and by the authority of the same, as follows:
SECTION 1. The General Laws are hereby amended by inserting after chapter 29D the following chapter:-
CHAPTER 29E
Massachusetts Transportation Infrastructure Revolving Fund Program and Massachusetts State Infrastructure Bank
Section 1. Definitions. As used in this chapter, the following words shall have, unless the context clearly indicates otherwise, the following meanings:
"Board", the board of trustees of the Massachusetts transportation
facilities and infrastructure trust.
"Bond act", any general or special law authorizing a governmental unit to incur indebtedness for all or any part of the cost of a qualified project.
"Bonds", bonds, notes or other evidence of indebtedness.
"Borrower obligations", governmental obligations or bonds of a private enterprise issued to evidence a loan.
“Cooperative Agreement“, written consent between the commonwealth and the United States Department of Transportation, which sets forth the manner in which the infrastructure bank, established in accordance with section 1602 of SAFETEA-LU, 23 USC 610, P.L. 109-59, as amended, will be administered.
"Cost", as applied to any qualified project, any and all costs, whenever incurred, approved by the secretary of transportation, of carrying out a qualified project, including without limitation, costs for preliminary planning of reports and studies to determine the economic or engineering feasibility of a qualified project, engineering and architectural reports, studies, surveys, plans and specifications; construction; expansion; improvement and rehabilitation; acquisition of real property, personal property, materials, machinery or equipment; start-up costs; demolitions and relocations; reasonable reserves and working capital; interest on borrower obligations prior to and during construction of such qualified project; administrative, legal and financing expenses; and other expenses necessary or incidental to the aforesaid.
"Financial assistance", any financial assistance for a qualified project provided by the trust under the program, including, without limitation, loans to and leases with qualified borrowers, the establishment of reserves and other security, and guarantees of and credit enhancement of the obligations of qualified borrowers incurred in connection with the financing of qualified projects.
"Fund", the Transportation Infrastructure Revolving Fund, established pursuant to section 7.
"General revenues", when used with reference to a governmental unit, revenues, receipts, assessments and other monies of a governmental unit, and all rights to receive the same including, without limitation, (i) revenue as defined in section 1 of chapter 44; (ii) project revenues; (iii) assessments upon or payments received from any other governmental unit which is a member or service recipient of the governmental unit; (iv) proceeds of loans made in accordance with this chapter and of grants made in accordance with section 31 of chapter 81; (v) investment earnings; (vi) reserves for debt service or other capital or current expenses; (vii) receipts from any rate, charge, tax, excise or fee all or a part of the receipts of which are payable or distributable to or for the account of the governmental unit; (viii) local aid distributions, if any; and (ix) receipts, distributions, reimbursements and other assistance from the commonwealth or the United States; provided, however, that general revenues shall not include any monies restricted by law to specific statutorily defined purposes inconsistent with their treatment as general revenues for purposes of this chapter.
"Governmental obligations", bonds issued by a governmental unit to evidence a loan.
"Governmental unit", any town, city, district, county, commission, agency, authority, board or other instrumentality of the commonwealth or of any of its political subdivisions, including any regional governmental unit which is responsible for the construction, ownership or operation of a qualified project and is authorized by a bond act to finance all or any part of the cost thereof through the issuance of bonds.
"Guarantee", a contract or contracts pursuant to which the trust agrees to guarantee all or a portion of the obligations of a qualified borrower incurred to finance a qualified project.
"Highway Account", the highway account of the fund, established pursuant to section 7.
"ISTEA," the Federal Intermodal Surface Transportation Efficiency Act of 1991, P.L. 102-240, as amended.
"Lease", any form of capital or operating lease for all or a portion of a qualified project, between the trust and a qualified borrower.
"Loan", any form of financial assistance subject to repayment which is provided by the trust to a qualified borrower for all or any part of the cost of a qualified project. A loan may (1) provide for planning, construction, bridge or permanent financing; and (2) be disbursed in anticipation of reimbursement for or direct payment of costs of a qualified project or take the form of a guarantee, line of credit or other form of financial assistance.
"Loan agreement", any agreement entered into between the trust and a qualified borrower pertaining to a loan or lease. A loan agreement may contain, in addition to financial terms which may include, without limitation, provisions defining defaults thereunder and remedies therefor, provisions relating to the regulation and supervision of a qualified project and any other provision as the board may reasonably determine. The term "loan agreement" shall include, without limitation, a loan agreement, lease, trust agreement, trust indenture, security agreement, reimbursement agreement, guarantee agreement, bond or note resolution, or similar instrument whether secured or unsecured.
"Local aid distributions", any receipts, distributions, reimbursements or other assistance payable by the commonwealth to or for the account of a governmental unit, including, without limitation, payments under sections 18B, 18C and 18D of chapter 58 and any other local reimbursement or assistance program described in section 25A of said chapter 58.
“Massachusetts State Infrastructure Bank”, the program authorized by section 1602 of the Safe, Accountable, Flexible, Efficient, Transportation Equity Act: A Legacy for Users (SAFETEA-LU) of 2005, and a cooperative agreement between the United States Department of Transportation and the executive office of Transportation.
“Massachusetts Transportation Infrastructure Fund”, the fund established in this section.
"NHS Act", the National Highway System Designation Act of 1995, P.L. 104-59, as amended.
"Private enterprise", a private person or entity that has entered into a contract with a governmental unit to design, finance, construct or operate a qualified project that is within the jurisdiction of such governmental unit, provided that the governmental unit is responsible for complying with all applicable requirements of ISTEA or the NHS Act, with respect to such qualified project.
"Program", the Transportation Infrastructure Revolving Fund Program established pursuant to this chapter.
"Project revenues", all rates, rents, fees, assessments, charges, and other receipts derived or to be derived by a qualified borrower from a qualified project, and, if so provided in the applicable loan agreement pursuant to section 13, from any system of which such qualified project is a part and any other revenue producing facilities under the ownership or control of such qualified borrower, including, without limitation, proceeds of grants, gifts, appropriations and loans, including the proceeds of loans or grants made by the trust, investment earnings, reserves for capital and current expenses, proceeds of insurance or condemnation and the sale or other disposition of property; provided, however, the project revenues shall not include any ad valorem taxes levied directly by a governmental unit on any real and personal property.
"Qualified borrower", any governmental unit or private enterprise which is authorized to construct, operate or own a qualified project.
"Qualified project", any public or private highway, transit or transportation project, including, without limitation, the construction, reconstruction, resurfacing, rehabilitation or replacement of public or private transportation facilities including, without limitation, parking facilities within the commonwealth, or the study of the feasibility thereof; any highway, transit or transportation project eligible for financing or aid under any federal act or program; and any project involving the maintaining, repairing, improving or constructing of any city, town, county or state highway, including roads, streets and parkways, parking facilities, and any rights-of-way, bridges, tunnels, railroad highway crossings, drainage structures, signs, guardrails, and protective structures constructed or used in connection with highway or transit projects.
“Regional governmental unit”, a governmental unit which is authorized to construct, own, or operate a qualified project on behalf of two or more other governmental units, or designated parts thereof, and which derives all or part of its general revenues or project revenues by assessment or other charge on such other governmental units.
"Revenues", when used with respect to the trust, any receipts, fees, revenues or other payments received or to be received by the trust under the program, including without limitation receipts and other payments received by or deposited in the fund, payments of principal, interest or other charges on loans, leases, grants, appropriations or other financial assistance from the commonwealth or the United States or any political subdivision or instrumentality of either in connection with the program, investment earnings on its funds and accounts, including, without limitation, the fund, and any other fees, charges or other income received or receivable by the fund or the trust under the program.
“Review Committee”, the house and senate chairmen of the joint committee on transportation and the directors, or their designees, of the metropolitan planning organizations of the commonwealth.
“SAFETEA-LU”, The Safe, Accountable, Flexible, Efficient, Transportation Equity Act: A Legacy for Users, 23 USC 610, P.L. 109-59, as amended.
"Secretary of administration and finance", the secretary of the executive office for administration and finance established under chapter 7.
"Secretary of EOT", the secretary of the executive office of transportation established under chapter 6A.
"State Contribution Account", the State Contribution Account of the fund, established pursuant to section 7.
“State treasurer”, the treasurer and receiver-general of the commonwealth.
“TEA-21”, the Transportation Equity Act for the 21st Century, P.L. 105-178, as amended.
"Transit Account", the Transit Account of the fund, established pursuant to the provisions of section 7.
"Trust", the Massachusetts transportation facilities and infrastructure trust established by this chapter.
"Trust agreement", any agreement entered into by the trust and the state treasurer, providing for the issuance, security and payment of bonds issued pursuant to section 8. The term "trust agreement" shall include a trust agreement, trust indenture, security agreement, reimbursement agreement, currency or interest rate exchange agreement, bond or note resolution or other similar instrument.
Section 2. Massachusetts Transportation Facilities and Infrastructure Trust; Board of Trustees; Purpose, Powers and Duties
(a) An unpaid board of trustees consisting of the secretary of administration and finance, ex officio, the secretary of transportation, ex officio, the state treasurer, ex officio, and a fourth member who shall be appointed by the governor for a term coterminous with that of the governor is hereby constituted as a public instrumentality of the commonwealth to be known as the Massachusetts transportation facilities and infrastructure trust to administer the Transportation Infrastructure Revolving Fund established pursuant to section 7. The trust is hereby designated as an instrumentality of the commonwealth to establish and administer within the fund the state infrastructure bank pursuant to section 1602 of SAFETEA-LU. The exercise by the trust, and by the board of trustees thereof, of the powers conferred by this chapter shall be deemed to be the performance of an essential public function.
(b) The secretary of EOT shall serve as chairperson of the board. The board shall annually elect one of its members as vice-chairperson. Each member of the board may appoint a designee pursuant to section 6A of chapter 30. Three members of the board shall constitute a quorum and the affirmative vote of a majority of trustees present shall be necessary and shall suffice for any action taken by the board. Any action of the board may take effect immediately and need not be published or posted unless otherwise provided by law. No vacancy in the membership of the board shall impair the right of a quorum to exercise the powers of the board. Meetings of the board of trustees shall be subject to section 11A 1/2 of chapter 30A; provided, however, that the provisions of said section 11A 1/2 shall not apply to any meeting of trustees in the exercise of their duties as officers of the commonwealth so long as no matters relating to the official business of the trust are discussed and decided at such meeting. The trust shall be subject to all other provisions of said chapter 30A; provided, however, that the provisions of said chapter 30A shall not apply to rules, regulations, procedures and guidelines adopted by the board pursuant to this chapter, and records pertaining to the administration of the trust shall be subject to the provisions of section 42 of chapter 30 and section 10 of chapter 66. The fund and all other monies of the trust shall be deemed to be public funds for the purposes of chapter 12A. The operations of the trust shall be subject to the provisions of chapter 268A and chapter 268B to the same extent as the offices of the secretary of administration and finance and the secretary of transportation.
(c) The purposes for which the trust is created and for which the fund shall be received, held, administered and disbursed by the board of trustees shall be the provision of financial assistance, in the manner contemplated by ISTEA, TEA-21, NHS Act, and SAFETEA-LU to qualified borrowers as beneficiaries of the trust to finance the costs of qualified projects, as provided in, and as necessary to implement the provisions of, this chapter. In accordance with the terms of any trust agreement entered into by the trust and the state treasurer with respect to the bonds secured by monies or revenues of the fund, the holders of such bonds also shall be beneficiaries of such trust. The board shall apply and disburse monies and revenues of the fund without appropriation or allotment by the commonwealth.
(d) Without limiting the generality of the foregoing and other powers of the trust, the board shall have the power:
(i) to adopt and amend by-laws and such rules, regulations and procedures for the conduct of the business of the trust as the board shall deem necessary to carry out the provisions of this chapter;
(ii) to apply for, receive, administer and comply with the conditions and requirements respecting any grant, gift or appropriation of property, services or monies;
(iii) to borrow and repay money by requesting the state treasurer to issue bonds on behalf of the trust in accordance with section 8, and to apply the proceeds thereof as provided in this chapter and to pledge or assign or create security interests in the fund and the receipts thereto to secure bonds;
(iv) to make loans to or enter into loan agreements with qualified borrowers to acquire, hold and sell borrower obligations at such prices and in such manner as the board shall deem advisable, and to pledge borrower obligations to secure bonds issued pursuant to section 8;
(v) to enter into guarantees secured by or purchase bond insurance or other credit enhancement through amounts on deposit in the fund;
(vi) to enter into contracts, arrangements and agreements to provide any other form of financial assistance through amounts on deposit in the fund;
(vii) to enter into contracts, arrangements and agreements with other persons and execute and deliver all trust agreements, loan agreements and other instruments necessary or convenient to the exercise of the powers granted hereunder, including without limitation, any contracts, arrangements or agreements required pursuant to ISTEA, TEA-21, the NHS Act, and SAFETEA-LU and any successor acts or reauthorizations of those acts;
(viii) to enter into an agreement, contract or other arrangement directly or indirectly through any office or agency within the executive office of transportation pursuant to section 19 of chapter 6A, with a private enterprise in furtherance of and in accordance with the provisions of ISTEA, TEA-21, the NHS Act, SAFETEA-LU or any successor acts or reauthorizations of those acts, as applicable;
(ix) to obtain insurance and enter into agreements of indemnification necessary or convenient to the exercise of the powers granted hereunder;
(x) to sue and be sued and to prosecute and defend actions relating to the affairs of the trust and the fund; provided, however, that the trust is not authorized to become a debtor under the United States Bankruptcy Code;
(xi) to engage accounting, management, legal, financial, consulting and other professional services necessary to the conduct of the program; and
(xii) to establish a review committee consisting of the house and senate chairmen of the joint committee on transportation and the directors, or their designees, of the metropolitan planning organizations of the commonwealth.
(e) In its administration of the program as provided in this chapter, the board shall comply with applicable federal requirements under ISTEA and the NHS Act, SAFETEA-LU and other applicable federal programs. In addition, prior to entering into any loan agreement, contract, arrangement or other instrument for the purpose of carrying out the program, the board shall, within 30 days, obtain the approval of the state treasurer with respect to the financial terms and conditions of such agreement. The trust shall not be authorized or empowered to be or to constitute a bank or trust company within the jurisdiction or under the control of the department of banking and insurance of the commonwealth or the comptroller of the currency or the treasury department of the United States. The trust shall not be authorized or empowered to be or constitute a bank, banker or dealer in securities within the meaning of, or subject to the provisions of, any securities, securities exchange or securities dealers' law of the United States or the commonwealth.
(f) The board may consult from time to time with the review board for purposes of establishing policies and procedures governing the program.
Section 3. Receipt and Disbursement of Fund Monies.
(a) The state treasurer, as treasurer-custodian of the fund, shall receive in trust, hold and disburse in and from the fund exclusively for the benefit of the beneficiaries thereof, at the direction of the board, the following monies: (i) subject to the applicable provisions of sections 9 through 10D of chapter 11 of the acts of 1997, as amended by section 1 of chapter 121 of the acts of 1998 and sections 4 through 7 of chapter 235 of the acts of 1998, federal grants and awards or other federal assistance received by the trust or the commonwealth and eligible for deposit therein under applicable federal law; (ii) amounts appropriated by the commonwealth to the fund for purposes of the program; (iii) amounts paid by the Massachusetts turnpike authority or any other state, local or regional agency or authority authorized by law to deposit monies in the fund for purposes of the program; (iv) proceeds of bonds issued pursuant to section 8; (v) loan and lease payments and other payments received by the trust in respect of providing financial assistance to qualified borrowers; (vi) investment earnings on monies in the fund; and (vii) any other amounts required to be credited to the fund by any law or by any resolution, loan agreement or trust agreement or which the commonwealth or the board shall otherwise determine to deposit therein.
(b) Application of amounts in the fund shall be subject to the requirements of this chapter and applicable provisions of any loan agreement or trust agreement and, with respect to amounts held therein derived from grants or awards made under 23 USC section 101, et seq. or 49 USC section 5301, et seq., or any other federal law, to the applicable requirements of federal law. Whenever the board takes discretionary action, it shall be guided by the intention of best effecting the purposes of this chapter to implement financial assistance in support of qualified projects consistent with the responsibilities of the trust to its bondholders, qualified borrowers, and other beneficiaries of the trust. The provisions of section 6B and sections 7A to 7G, inclusive, of chapter 29 shall not apply to grants received by the trust from the United States for purposes of the fund. The state treasurer shall be the treasurer-custodian of the fund as provided in section 7, and, subject to any applicable trust agreement, the state treasurer is authorized to invest monies held in the fund in such investments as may be legal investments for funds of the commonwealth, subject, however, with respect to monies deposited in the fund pursuant to Section 350 of the NHS Act, to the provisions of Section 350(e)(3) of the NHS Act.
(c) Subject to limitations under ISTEA, TEA-21, the NHS Act, SAFETEA-LU and other federal laws, other laws respecting the use of particular monies in the fund; and the provisions of any applicable trust agreement, amounts in the fund may be used only: (i) to pay the principal, including sinking fund payments of and premium, if any, and interest on bonds of the commonwealth issued pursuant to section 8 for the purpose of financing or refinancing any cost of a qualified project; (ii) to provide financial assistance, to finance or refinance the costs of qualified projects; (iii) to guarantee, or provide insurance or other credit enhancement for bonds of qualified borrowers issued to finance the costs of qualified projects; (iv) to provide reserves for or otherwise secure bonds issued pursuant to section 8 and to provide insurance or other credit enhancement for such bonds; (v) to provide a subsidy for, or to otherwise assist, qualified borrowers in the payment of debt service costs on loans made by the trust hereunder; (vi) to provide reserves for, or to otherwise secure, amounts payable by qualified borrowers on loans made by and leases with the trust in the event of default by a particular qualified borrower or, on a parity basis, by any qualified borrower; (vii) to earn interest on amounts in the fund; and (viii) for the costs of administering the program; provided, however, that not more than 2 per cent of the federal funds contributed to the fund pursuant to Section 350 of the NHS Act may be expended for such administrative costs.
(d) For the necessary and convenient administration of the fund, the board shall direct the state treasurer to establish the highway account, the state contribution account, the transit account and the rail account as provided in section 7, and one or more additional accounts and sub-accounts within the fund as shall be necessary to meet the requirements of SAFETEA-LU and any other applicable federal law requirement or as the board shall otherwise deem necessary or desirable in order to implement the provisions of this chapter or to comply with any trust agreement. The board may also establish in any trust agreement or otherwise one or more other funds and accounts for revenues and other monies not required to be held in the fund, and to apply and disburse such monies and revenues for the purposes of the program.
Section 4. Power and Duty of Trust to Secure Benefits of Federal Programs.
The board, acting on behalf of the trust, is authorized and directed to take all necessary or incidental actions to secure for the commonwealth the benefits of ISTEA, TEA-21, the NHS Act, SAFETEA-LU any successor acts or reauthorizations of those acts, and any similar federal programs, including exercise of the powers:
(a) to cooperate with appropriate federal agencies in all matters related to the administration of the fund as contemplated by 23 USC section 610 and section 1620 of SAFETEA-LU.
(b) to prepare and submit to the appropriate federal agencies applications for grants and to enter into agreements with the United States relating to the purposes of the fund and the program; including, but not limited to, a cooperative agreement with the U.S. Secretary of Transportation for the establishment of the Massachusetts state infrastructure bank.
(c) to prepare and submit to the appropriate federal agencies, the governor and the clerks of the senate and the house, annual and other reports and audits, in form and content satisfying federal requirements, relating to the program and the fund;
(d) to establish and collect such fees, charges and interest rates in compliance with federal requirements and as the board shall determine to be reasonable, and to hold, apply and disburse such monies within or without the fund to the implementation of the purposes of this chapter;
(e) to establish, jointly with the state treasurer and the state comptroller, fiscal controls and accounting procedures for the fund; and
(f) to adopt regulations, procedures and guidelines for administration of the program and for maintenance of suitable accounting procedures by qualified borrowers for financial assistance and projects.
(g) to enter into interstate compacts, as provided by SAFETEA-LU and other federal laws.
Such regulations, procedures and guidelines shall be consistent with any applicable federal requirements.
Section 5. Applications for Financial Assistance.
Any qualified borrower may file an application with the trust to obtain financial assistance from the fund. The application shall be filed in such manner and contain or be accompanied by such information as the trust may require. In addition to other requirements prescribed by the trust, an application shall describe the nature and purpose of the proposed transportation project, including the need for the project and the reasons why the project is in the public interest, shall state the estimated costs of the project and the proposed sources of funding, if any, in addition to the financial assistance being sought from the fund, and shall include a letter of support from the representative or senator in whose district the project is located.
The board shall prepare and adopt program guidelines and conditions for qualified projects seeking financial assistance from the trust. The board shall from time to time review, prioritize and certify all qualified projects that are eligible to receive financial assistance from the trust.
For projects in urbanized areas with a population of over 200,000 the metropolitan planning organization shall provide a letter of concurrence. In order to be eligible of financial assistance applications shall be approved by the review committee prior board certification.
Section 6. Loan and Lease Terms.
The secretary of administration and finance shall prepare and present to the board guidelines regarding the appropriate financial terms and conditions for qualified projects proposed to be financed under the program. The board shall determine the form and content of any borrower obligation, including the term and rate or rates of interest. Notwithstanding the foregoing, loans and leases financed through the application of federal monies pursuant to 23 USC section 129, or Section 350 of the NHS Act:
(a) shall bear interest at or below market rates, as determined by the board, or otherwise as may be specified therein;
(b) shall have a repayment term of not longer than 30 years from the date of the first payment, as required by clause (c) of this section;
(c) shall be subject to repayment commencing not later than five years after the qualified project financed with the proceeds of such loan has been completed or, in the case of a highway project, the facility has opened to traffic;
(d) may be subordinated to any other debt incurred to finance the qualified project, except any other loans made by the commonwealth or any other public agency thereof; and
(e) shall be made only after all federal environmental requirements applicable to the qualified project have been complied with.
Notwithstanding any provision of this chapter to the contrary, the board may waive any of the requirements contained in this section if such waiver would not cause the loan or the program to violate the requirements of ISTEA or the NHS Act or any other applicable federal or commonwealth requirement.
Section 7. Establishment of Fund; Accounts.
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