Bill Text: MI SB0066 | 2011-2012 | 96th Legislature | Introduced
Bill Title: Transportation; funds; governmental authority for an international bridge crossing; provide for. Creates new act & repeals (See bill).
Spectrum: Partisan Bill (Democrat 5-0)
Status: (Introduced - Dead) 2011-01-25 - Referred To Committee On Transportation [SB0066 Detail]
Download: Michigan-2011-SB0066-Introduced.html
SENATE BILL No. 66
January 25, 2011, Introduced by Senators HOPGOOD, WARREN, GREGORY, ANDERSON and HUNTER and referred to the Committee on Transportation.
A bill to authorize a multinational bridge authority; to
prescribe the powers and duties of the authority; to authorize
procurement, design, finance, construction, maintenance, operation,
improvement, and repair of international bridges and approaches; to
authorize agreements with public and private entities; to provide
for the issuance of, and terms and conditions for, certain bonds;
to provide for the collection and enforcement of user fees and
other charges; to authorize the acquisition, maintenance, and
disposal of interests in real and personal property; to provide for
certain duties of certain state departments and officers; to
provide for the power to enter into interlocal agreements; to
exempt property, income, and activities of the authority from tax;
to make an appropriation; and to repeal acts and parts of acts.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 1. This act shall be known and may be cited as the
"multinational bridge authority act".
Sec. 2. As used in this act:
(a) "Authority" means the multinational bridge authority
created in this act.
(b) "Bonds" means revenue bonds or other securities issued by
the authority under this act.
(c) "Canadian contribution" means a gift, contribution,
payment, advance, grant, or other money received for or in aid of a
project from a public agency of Canada pursuant to a governance
agreement.
(d) "Concessionaire" means a private entity that is a party to
a public-private agreement authorized by this act.
(e) "Crossing" means a public international bridge between
Ontario, Canada, and this state that is at least partially located
in a city with a population of at least 600,000 according to the
most recent decennial census and bridge approaches, including, but
not limited to, all related structures, plazas, facilities,
improvements, extensions, interchanges, property, and property
interests.
(f) "Debt" means borrowed money, loans, and other
indebtedness, including principal and interest, evidenced by a bond
or other security lawfully issued or assumed under this act, in
whole or in part, by the authority or that may be evidenced by a
judgment or decree against the authority.
(g) "Department" means the state transportation department.
(h) "Disaster recovery" means action taken by a governmental
agency in response to an occurrence or threat of widespread or
severe damage, injury, or loss of life or property resulting from a
natural cause or human-made cause, including, but not limited to,
fire, flood, snowstorm, ice storm, tornado, windstorm, wave action,
oil spill, water contamination, utility failure, hazardous
peacetime radiological incident, major transportation accident,
hazardous materials incident, epidemic, air contamination, blight,
drought, infestation, explosion, or hostile military action or
paramilitary action, or similar occurrences resulting from
terrorist activities, riots, or civil disorder.
(i) "Excess revenue" means any qualified revenue remaining
after satisfaction of project cost obligations.
(j) "Governance agreement" means an interlocal agreement under
the urban cooperation act of 1967, 1967 (Ex Sess) PA 7, MCL 124.501
to 124.512, that includes the authority and a public agency of
Canada as parties.
(k) "Private entity" means any natural person, corporation,
general partnership, limited liability company, limited
partnership, joint venture, business trust, public benefit
corporation, nonprofit entity, or other nongovernmental business
entity.
(l) "Project" means all activities associated with a crossing,
project land activities, and project activities.
(m) "Project activity" means the research, planning,
procurement, design, finance, construction, maintenance, operation,
improvement, and repair of a crossing under this act.
(n) "Project contribution" means a gift, contribution,
payment, advance, grant, or other money received for or in aid of a
project from the federal government or an agency of the federal
government.
(o) "Project cost" means the costs associated with a project,
including, but not limited to, the cost of project activities; the
cost of project land activities; the cost of mitigation and
enhancement measures included in the green sheet or record of
decision for a project under the national environmental policy act
of 1969; the cost of all assets, including machinery, vehicles, and
equipment, including financing costs; traffic estimates; studies;
legal services; engineering services; plans; surveys; feasibility
studies; administrative expenses; and expenses that may be
necessary or incidental to the construction, repair, or improvement
of the project and the operation and maintenance of the project.
(p) "Project land activity" means the acquisition of all land,
rights-of-way, property, rights, easements, and interests for a
crossing.
(q) "Project revenue" means user fees or other charges
generated by the use of a crossing and any other revenue generated
from the use of or by the crossing, including, but not limited to,
any revenue arising from a public-private agreement.
(r) "Public agency" means that term as defined under section 2
of the urban cooperation act of 1967, 1967 (Ex Sess) PA 7, MCL
125.502, including, but not limited to, a Canadian entity
established by the government of Canada under the Canadian
international bridges and tunnels act.
(s) "Public-private agreement" means any of the following
relating to the project activities of a project:
(i) An agreement between a private entity or private entities
and the authority.
(ii) An agreement between a private entity or private entities
and a public agency of Canada.
(iii) An agreement between a private entity or private entities
and a separate legal entity created under a governance agreement.
(iv) An agreement with a private entity or private entities and
a public entity or public entities as parties involving a joint
exercise of power by the authority and a public body of Canada
authorized by a governance agreement.
(t) "Qualified revenue" means all of the following:
(i) Project revenue.
(ii) A Canadian contribution.
(iii) A project contribution.
(u) "Security" means any evidence of debt such as a bond,
note, contract, obligation, refunding obligation, certificate of
indebtedness, or other similar instrument issued by the authority
that pledges payment of debt by the authority from qualified
revenue.
Sec. 3. (1) Bonds authorized under this act shall not be
deemed to constitute a debt of this state or any political
subdivision of this state. Bonds authorized under this act are not
a pledge of the full faith and credit of this state or any
political subdivision of this state. All bonds shall contain a
statement that neither this state nor the authority is obligated to
pay the principal amount of the bonds or any interest on the bonds,
from any source other than qualified revenue. The bonds shall also
contain a statement that neither the full faith and credit of this
state nor the taxing power of this state or any political
subdivision of this state is pledged for payment of principal or
interest on the bonds.
(2) The only bonds that shall be issued by a governmental
entity in this state for the financing of project activities are
the bonds authorized under this act.
(3) The authority may issue bonds under this act only for a
purpose related to a project to take advantage of financing,
credit, or tax exemption opportunities authorized by federal law.
For purposes of this subsection only, and for no other purpose,
notwithstanding other law to the contrary, the department may
designate the project as federal-aid eligible and the authority as
an eligible governmental agency for purposes of applicable state
and federal law, including, but not limited to, 1951 PA 51, MCL
247.651 to 247.675.
(4) Nothing in this act limits or prevents a concessionaire or
other private entity from issuing bonds, incurring indebtedness, or
entering into other arrangements relating to financing a project.
Sec. 4. (1) The multinational bridge authority is created as a
public body corporate in the department. Except as otherwise
provided in this act, the authority shall exercise its powers,
duties, and functions under this act independently of the director
of the department. The budgeting, procurement, and related
management functions of the authority shall be performed under the
direction and supervision of the director of the department. The
authority may contract with the department for the purpose of
maintaining the rights and interests of the authority.
(2) Subject to available appropriations, notwithstanding other
law to the contrary, if requested by the authority, the department
shall provide staff and other support to the authority sufficient
to enable the authority to carry out the powers, duties, and
functions of the authority under this act.
(3) All departments, agencies, and officers of state
government shall provide full cooperation to the authority in the
performance of powers, duties, and functions of the authority.
(4) Nothing in this act shall diminish the power of the state
transportation commission under section 28 of article V of the
state constitution of 1963 to establish policy for department of
transportation programs and facilities and other public works of
this state.
(5) Nothing in this act shall diminish the power of the civil
service commission under section 5 of article XI of the state
constitution of 1963.
(6) The authority may exercise all of the following powers:
(a) Adopt bylaws to regulate its affairs and conduct its
business.
(b) Adopt or change an official seal.
(c) Maintain an office or offices as needed.
(d) Sue and be sued in its own name.
(e) Determine location, design standards, and construction
materials of a crossing.
(f) Research, plan, procure, design, finance, construct,
operate, improve, and repair a project.
(g) Fix, and revise as necessary, charge, enforce, and collect
user fees and other charges for the use of, or contract with a
private entity to fix, revise as necessary, charge, enforce, and
collect user fees and other charges for the use of a crossing.
(h) Establish rules and regulations for use of a crossing.
(i) Purchase, otherwise acquire, receive, accept, lease, hold,
and dispose of real and personal property in the exercise of its
powers and the performance of its duties under this act, including,
but not limited to, interests in real and personal property and
related rights or interests such as structures, rights-of-way,
franchises, easements, lands under water, and riparian rights. This
subdivision shall not be interpreted to give the authority the
power of eminent domain in order to acquire land.
(j) Accept contributions of real property from the department
or other entities.
(k) Issue bonds, payable from qualified revenue, and refinance
the bonds, as authorized by this act.
(l) Make and enter into contracts and agreements necessary or
incidental to the performance of its duties and the exercise of its
powers under this act, including, but not limited to, public-
private agreements.
(m) Employ consulting engineers, attorneys, accountants,
construction and financial experts, superintendents, managers, and
other employees and agents as may be necessary in its judgment and
fix their compensation, subject to any applicable rules or
regulations of the civil service commission.
(n) Receive and accept from any source gifts, property,
structures, rights, rights-of-way, franchises, easements, property
rights, contributions, grants, or funds for or in aid of a project,
including, but not limited to, a project contribution or a Canadian
contribution.
(o) Enter into contracts or leases to provide for the
development and use of any property owned or controlled by the
authority for customs brokering or for the sale of articles for
export and consumption outside the United States or Canada,
respectively, to the extent that this use is not restricted by
federal law or Canadian law. If the authority contracts for customs
brokering, the authority shall utilize a competitive bidding
process. A contract or lease entered into under this subdivision
does not exempt a person from the payment of any motor fuel, sales,
or other taxes required to be paid under the laws of this state on
articles or fuel sold or brought into this state for consumption.
(p) Enter into a governance agreement relating to a project as
authorized under this act.
(q) Apply for and use grants, loans, loan guarantees, lines of
credit, revolving lines of credit, or other arrangements available
under the transportation infrastructure finance and innovation act
of 1998, Public Law 105-178, 23 USC 601 to 610 or other applicable
law in a manner consistent with this act.
(r) Seek allocation for, issue, and provide for the issuance
of private activity bonds as described under 26 USC 141 to finance
a project.
(s) Exercise other powers of the department relating to
streets, highways, transportation programs, transportation
facilities, and transportation public works of this state not
otherwise vested in the authority only to the extent related to a
project and necessary to carry out the purposes of this act, except
that this subdivision does not authorize the authority to exercise
the power of eminent domain.
(t) Do anything necessary and proper consistent with the
provisions of this act to carry out the purposes of and powers
explicitly granted in this act.
(7) The powers and duties of the authority are vested in a
board of directors. The board shall have 5 members who shall be
appointed by the governor with the advice and consent of the
senate. The governor shall designate a member of the board, who
does not also serve as the head of a state department, as its
chairperson. One member shall be appointed by the governor from a
list of 3 or more names nominated by the senate majority leader,
and 1 member shall be appointed by the governor from a list of 3 or
more names submitted by the speaker of the house of
representatives. Of the 3 members initially appointed by the
governor without nomination by the senate majority leader or the
speaker of the house of representatives, the first member shall be
appointed for an initial term of 2 years, and 2 members shall be
appointed for an initial term of 4 years each. The initial members
nominated by the senate majority leader and the speaker of the
house of representatives shall be appointed for initial terms of 2
years each. After the expiration of initial terms, members shall be
appointed for terms of 4 years. A member of the board shall
continue to serve until a successor is appointed and qualified. A
vacancy on the board occurring other than by expiration of a term
shall be filled by the governor in the same manner as the original
appointment for the balance of the unexpired term. An employee of
the department shall not serve as a member of the board.
(8) A majority of the members of the board serving constitute
a quorum for the transaction of the business of the authority. The
board shall act by a majority vote of its serving members.
(9) The board shall meet at the call of the chairperson and as
may be provided in procedures adopted by the board.
(10) The board may, as appropriate, make inquiries, studies,
and investigations, hold hearings, and receive comments from the
public. Subject to available funding, the board also may consult
with outside experts in order to perform its duties, including, but
not limited to, experts in the private sector, and government
agencies and experts at institutions of higher education. The board
may hire or retain such contractors, subcontractors, advisors,
consultants, and agents as the board may deem advisable and
necessary, in accordance with the relevant statutes and procedures,
rules, and regulations of the civil service commission and the
department of technology, management, and budget and may make and
enter into contracts necessary or incidental to the exercise of the
powers and performance of the duties of the board. Under this
provision, the board specifically may hire or retain such
contractors, subcontractors, advisors, consultants, and agents as
the board deems advisable and necessary to provide legal advice or
legal services, to provide for research and development activity,
or to provide strategic planning services.
(11) Members of the board shall serve without compensation.
Members of the board may receive reimbursement for necessary travel
and expenses consistent with relevant statutes and the rules and
procedures of the civil service commission and the department of
technology, management, and budget, subject to available funding.
(12) A member of the board shall discharge the duties of the
position in a nonpartisan manner, in good faith, in the best
interests of this state, and with the degree of diligence, care,
and skill that an ordinarily prudent person would exercise under
similar circumstances in a like position. A member of the board
shall not make or participate in making a decision, or in any way
attempt to use his or her position as a member of the board to
influence a decision, on a matter before the authority in which the
member is directly or indirectly interested. A member of the board
shall not be interested directly or indirectly in any contract with
the authority or the department that would cause a substantial
conflict of interest. Members of the board shall comply, and the
board shall adopt policies and procedures for members to comply,
with the requirements of this subsection and all of the following:
(a) 1978 PA 472, MCL 4.411 to 4.431.
(b) 1978 PA 566, MCL 15.181 to 15.185.
(c) 1968 PA 318, MCL 15.301 to 15.310.
(d) 1968 PA 317, MCL 15.321 to 15.330.
(e) 1973 PA 196, MCL 15.341 to 15.348.
(13) Beginning on the effective date of this act and
continuing until the appointment and qualification of 5 members of
the board as provided under this section, the powers and duties
vested in the board under this act may be exercised by the state
administrative board created under 1921 PA 2, MCL 17.1 to 17.3.
(14) Within 60 days after the first meeting of the authority,
the department shall establish a website for the authority and the
authority shall post updates not less than weekly on authority
activities and transactions and the progress of any project,
including, but not limited to, all proposed public-private
agreements.
(15) The authority is subject to, and shall conduct its
meetings in compliance with, the open meetings act, 1976 PA 267,
MCL 15.261 to 15.275.
(16) Except as otherwise provided in this act, the authority
shall comply with the freedom of information act, 1976 PA 442, MCL
15.231 to 15.246.
(17) The department may transfer property or interests in
property under the jurisdiction or control of the department to the
authority for purposes authorized under this act.
Sec. 5. (1) The authority may enter into a governance
agreement concerning a project under this act. The governance
agreement may provide for a separate legal or administrative entity
that shall be a public body corporate or politic and shall not be a
public body of the executive branch of this state. The governance
agreement shall not authorize the authority or any public body
provided for by a governance agreement to levy a tax or to take
property using the power of eminent domain.
(2) In accordance with a governance agreement established in
subsection (1), the department or the authority may receive funds
from a Canadian contribution. No agreement involving the authority
and a public agency of Canada relating to a Canadian contribution
shall impose any obligation on the department, authority, this
state, or political subdivision of this state to repay the Canadian
contribution from revenues other than project revenue and qualified
revenue.
(3) A governance agreement may provide for the repayment of
all or any part of any Canadian contribution only if repayment of
the contribution is required to be paid, repaid, or returned
exclusively from project revenue or qualified revenue.
(4) A governance agreement shall provide for both of the
following:
(a) A provision that details an equitable reimbursement
schedule if a public agency of Canada advances project costs for a
project that may be reimbursed from project revenue. Excess project
revenue shall be first used exclusively to reimburse any Canadian
advances.
(b) A provision enabling the authorizations granted under this
act.
(5) A governance agreement shall contain a provision that
distributes excess project revenue under any public-private
agreement in the following manner:
(a) For a public-private agreement where only the authority
and no other public agency is a party, 100% of excess project
revenue shall be distributed to the authority. The authority shall
deposit any funds received under this subdivision in the state
trunk line fund established under section 11 of 1951 PA 51, MCL
247.661.
(b) For a public-private agreement where the authority,
Canada, and 1 or more other public agencies are parties or
beneficiaries, excess project revenue shall be distributed equally
among each public agency that is a beneficiary or party under the
public-private agreement. If the authority and a public agency of
Canada are the only public agencies that are party to a public-
private agreement, 50% of excess project revenue shall be
distributed to the authority and 50% of excess project revenue
shall be distributed to the public agency of Canada. Any funds
distributed to the authority under this subdivision shall be
deposited in the state trunk line fund established under section 11
of 1951 PA 51, MCL 247.661.
(6) Upon executing a governance agreement, the authority shall
transmit copies of the governance agreement to clerk of the house
of representatives and the secretary of the senate.
(7) A governance agreement shall require that any project
proceed in a manner that complies with the national environmental
policy act of 1969 or other requirements of the federal highway
administration, including, but not limited to, any mitigation or
enhancement measures included in a green sheet or record of
decision for the project under the national environmental policy
act of 1969.
Sec. 6. (1) The authority may enter into a public-private
agreement concerning a crossing and project activity as provided in
this act. A public-private agreement shall include terms designed
to protect the public interest and assure accountability of a
concessionaire to the authority. A public-private agreement may
contain terms and conditions consistent with any limitations under
this act that the authority may determine or negotiate to
facilitate a crossing and project activity. The agreement may
contain a provision allowing binding arbitration or other
alternative forms of dispute resolution.
(2) A public-private agreement shall provide for all of the
following:
(a) An initial term for the use and operation of a crossing or
project activity by a concessionaire for a period that the
authority determines is necessary for the development and financing
of the project and the economic feasibility of the public-private
agreement that does not exceed 50 years in length from the date on
which a crossing is open to the public and collecting user fees or
other charges. After the initial term, the authority may renew a
public-private agreement or execute a new public-private agreement
for a period that the authority determines is necessary for the
development and financing of the project and the economic
feasibility of the public-private agreement that does not exceed 50
years in length. A term may be extended if the operation or
maintenance of the crossing is impaired due to force majeure or
disaster recovery not attributable to actions of the concessionaire
for an extended period equal to the period of impairment.
(b) The termination of the public-private agreement.
(c) A requirement that the control of a crossing revert from
the concessionaire to the authority and a public agency of Canada
at the end of the public-private agreement in a manner and
condition required under the public-private agreement and
governance agreement.
(d) Ownership of a crossing within this state shall be vested
in the authority, and title to the project shall not be encumbered.
Property rights relating to a crossing may be acquired by a public
entity or private entity other than the authority if the rights of
utilities and other existing public uses are not affected. A
public-private agreement may provide for the use and occupancy of a
crossing if the use and occupancy do not interfere with the
transportation and related public uses of a crossing.
(e) A lease, license, right of entry, or other instrument for
a crossing provided that such an instrument is in the public
interest and is consistent with this act.
(f) The right of the authority to share in any refinancing
gains benefiting the concessionaire under a public-private
agreement.
(g) A requirement that the concessionaire cooperate with the
authority and any other appropriate public agencies on all matters
concerning the security of the crossing or disaster recovery for
the crossing.
(h) A requirement that the concessionaire submit to all
appropriate public agencies written plans for the security of the
crossing and disaster recovery for the crossing.
(i) A requirement that during a period a project is operated
by a concessionaire the concessionaire shall have control for
operational purposes over designated portions of a crossing.
(j) A requirement that a concessionaire appear and testify
without a subpoena at a legislative hearing convened and conducted
in accordance with applicable law and relating to the public-
private agreement or a project that is the subject of the public-
private agreement.
(k) The specification of the scope of the project and the
scope of control for operational purposes to be vested in the
authority upon the completion of construction of a crossing.
(3) A public-private agreement shall not provide for any of
the following:
(a) The public being deprived of the use and benefit of a
crossing except as necessary to implement user fees or other
charges authorized by this act, to regulate the level or character
of permissible uses of a crossing, to address issues of public
safety or security, or to maintain, repair, or improve a crossing.
(b) The department, a public agency, or a private entity,
being prohibited from researching, planning, procuring, designing,
financing, constructing, maintaining, operating, improving, or
repairing a transportation project or facility in this state that
is included in the department's long-range plan in effect on the
date that proposals for the public-private agreement are submitted.
(c) The department, a public agency in this state, or a
private entity in this state being prohibited from researching,
planning, procuring, designing, financing, constructing,
maintaining, operating, improving, or repairing a transportation
project or facility in this state that is otherwise authorized
under the laws of this state.
(d) This state or any of its political subdivisions from being
required to make availability payments. However, a public agency of
Canada or a governmental entity created under a governance
agreement may make availability payments repayable from qualified
revenues if authorized under a public-private agreement and the
governance agreement.
(e) A concessionaire to sell or transfer its interest in the
public-private agreement without the consent of the authority.
(4) This state, the department, the authority, and any
political subdivision of this state do not have any liability for
the acts or omissions of a concessionaire or other nonstate party
to a public-private agreement.
(5) Except as otherwise provided in this act, a public-private
agreement shall impose on the concessionaire the same requirements
of law that are imposed in contracts of the department when it
contracts directly for the construction, maintenance, repair,
improvement, or operation of a similar project financed with state
funds.
(6) A public-private agreement shall establish the amounts for
which a concessionaire shall post payment and performance bonds or
other security as provided in this subsection. A public-private
agreement may authorize a concessionaire to provide a letter of
credit in lieu of a payment or performance bond. If the authority
determines that bonds or letters of credit are not reasonably
available in sufficient amounts, the authority may accept parent
corporation guarantees to supplement available payment bonds,
performance bonds, or letters of credit. The authority shall
require the posting of sufficient security to fulfill the purposes
of a payment and performance bond. In lieu of posting by a
concessionaire, or in supplementation of that posting, the
authority may accept bonds, letters of credit, and other security
from private entities other than the concessionaire that is subject
to posting so long as the purposes of a payment and performance
bond are fulfilled.
(7) A public-private agreement under this act shall contain
provisions requiring confidential, in camera inspection by the
legislative council provided for by section 15 of article IV of the
state constitution of 1963 and the legislative council act, 1986 PA
268, MCL 4.1101 to 4.1901, of documents containing propriety or
confidential information that are exempt from public disclosure. A
person who receives information under this subsection shall not
disclose that information for any purpose other than the proper
administration of his or her legislative duties or disclose that
information to anyone other than an employee of the legislature,
who is also bound by the same restrictions.
Sec. 7. (1) The authority may solicit proposals or receive
unsolicited proposals for the selection of a concessionaire for a
project using a competitive selection process. The authority may
charge and use fees to offset the administrative costs of receiving
and evaluating proposals. Before receiving a proposal, the
authority may agree to reimburse a private entity for costs not
greater than 5% of total costs incurred in the preparation and
presentation of a proposal in return for the right to use any work
product contained in the proposal, including, but not limited to,
the technologies, methods, processes, and information contained in
the material submitted in connection with the proposal. This
subsection shall not limit any reimbursement payments if made from
a Canadian contribution or a project contribution.
(2) Funds used to pay for costs associated with selection of a
concessionaire for a project shall only come qualified revenue.
(3) The authority has the sole discretion whether, and to what
extent, to consider an unsolicited proposal.
(4) Before a request for proposal is issued by the authority,
the authority shall conduct at least 1 public hearing on the
request for proposal and selection process. The authority shall
utilize 1 or more of the following procurement approaches:
(a) Sealed bidding.
(b) Selection of proposals, with or without negotiations,
based on qualifications, development proposals, technical
proposals, financial proposals, best value, or any combination of
them.
(5) The authority shall consider all of the following factors
in evaluating and selecting a bid or proposal to enter into a
public-private agreement for a project:
(a) The proposed cost of and financial plan for the project.
(b) The general reputation, qualifications, industry
experience, safety record, and financial capacity of the private
entity.
(c) The proposed research, planning, procurement, design,
finance, construction, maintenance, operation, improvement, and
repair of the project.
(d) To the extent permitted by federal law, the proposed plan
of the private entity to hire legal United States residents and
citizens for work relating to the project in this state.
(e) Evidence that a private entity has the capacity to obtain
all required payment and performance bonding, liability insurance,
and errors and omission insurance.
(f) Any other factors that are proper and consistent with the
provisions of this act and with factors used by other governmental
entities for selecting a concessionaire for a public-private
venture of a similar size, scope, and complexity.
(6) The authority may select multiple concessionaires for a
project if it is determined by the authority to be in the public
interest to do so.
(7) At the request of a private entity, the authority may
acknowledge as confidential and exempt from disclosure trade
secrets or proprietary commercial or financial information provided
by the private entity as part of a proposal under this section.
Information acknowledged by the authority as confidential is exempt
from disclosure, including, but not limited to, disclosure under
the freedom of information act, 1976 PA 442, MCL 15.231 to 15.246.
Unless considered proprietary information by the private entity,
the authority shall not acknowledge routine financial information
as confidential. If the authority acknowledges information as
confidential, the authority shall provide a description of the
information to which exemption from disclosure will extend. The
authority may agree to keep confidential and exempt from
disclosure, proprietary, commercial, or other confidential
information that a concessionaire is required by the public-private
agreement to provide to the authority. A bid or proposal from a
private entity for a project may be exempted from disclosure by the
authority until the authority completes all negotiations and
selects the concessionaire with which it intends to enter into a
public-private agreement. After the execution of a public-private
agreement, a bid or proposal is a public record subject to public
disclosure, excluding any confidential information exempted from
disclosure by the authority under this subsection.
(8) A proposal or bid submitted by a private entity under this
section shall include an executive summary in a form determined by
the authority detailing the major elements of the proposal
excluding the price, financing plan, or other trade secrets or
confidential proprietary or financial information that the private
entity seeks to exempt from disclosure. Upon submission, the
executive summary is a public record subject to public disclosure
and shall be posted on the website maintained for the authority by
the department.
(9) Submission of a solicited or unsolicited proposal
constitutes consent for the authority to use the information and
ideas provided by a private entity for a project or for purposes of
seeking or entering into a public-private agreement, including to
solicit competing proposals unless the authority agrees otherwise
in a writing executed by the authority before the submission.
(10) No action shall lie against the authority or another
person acting in accordance with a public-private agreement for the
use of ideas and information provided by a private entity for
purposes of seeking or entering into a public-private agreement.
(11) Before a request for a proposal is issued for the
project, the authority shall first determine that the proposed
project is economically beneficial for this state. In determining
whether a proposed project is economically beneficial for this
state, the authority shall contract with a qualified third party to
perform a cost-benefit analysis. The qualified third party shall
select an appropriate methodology to utilize in the cost-benefit
analysis, including, but not limited to, a risk transfer or
allocation assessment to determine whether a proposed public-
private agreement is economically beneficial for this state, and
shall state any assumptions used in the cost-benefit analysis in
writing. The cost-benefit analysis shall include all necessary
monitoring and oversight of any private entity by a public entity.
Upon receipt of the analysis, the authority shall publish the
results of the analysis on the website maintained for the authority
by the department and submit a written copy of the analysis to the
clerk of the house of representatives and the secretary of the
senate. The contract to perform a cost-benefit analysis shall be
obtained through a competitive and qualifications-based process.
Sec. 8. Nothing in this act or in a governance agreement
authorized by this act shall preclude a separate legal or
administrative entity created under a governance agreement from
appraising the fair market value of assets, from exploring
opportunities to create efficiencies, or from studying proposals
that may maximize the fair market value of assets associated with
the project and that may be in the public interest of this state.
Sec. 9. (1) The authority may provide for the issuance of
bonds. The principal of and interest on the bonds is payable solely
from qualified revenues and do not constitute a general obligation
of this state. The bonds are not a debt or liability of this state
and do not constitute or create any indebtedness, liability, or
obligation of this state or constitute a pledge of the full faith
and credit of this state. Each bond shall contain on its face a
statement to the effect that the authority is obligated to pay the
principal and the interest only from qualified revenue and that
neither the full faith and credit nor the taxing power of this
state or any political subdivision of this state is pledged to the
payment of the principal or interest.
(2) Consistent with the requirements of subsection (1), a bond
may be issued by the authority for the purpose of providing funds
for project costs or the refunding of any bonds issued under this
act, together with any costs associated with the transaction, and
shall be payable solely from any of the following:
(a) Qualified revenue.
(b) The proceeds of the bond instruments or of bonds sold to
finance the refunding of the bonds.
(c) The proceeds of any financial instrument providing credit,
liquidity, or security for the bonds described in subsection (5).
(d) Investment earnings on any of the sources of funds
described in subdivisions (a) to (c).
(3) To the extent required by applicable law, all proceeds of
the sources of payments specified in subsection (2) are
appropriated to the authority for the payment of the obligations,
for payment of project costs, or for payment of principal,
interest, or premium on bonds issued by the authority. The action
of the authority in issuing the bonds may be designated by the
authority as the creation of a statutory lien upon qualified
revenue pledged for the payment of the principal, interest, or
premium on the bonds, to and in favor of the holders of the bonds.
The statutory lien shall be a first priority lien, paramount and
superior to all other liens and interests of any kind that arise or
are created after the issuance of the bonds, unless otherwise
specified by the authority. Qualified revenue shall remain subject
to the statutory lien until all principal, interest, and premium on
the bonds are paid or provided for, as specified by the authority
at the time of the issuance of the bonds. The statutory lien may be
enforced by or on behalf of the holders of the bonds as to the use
of qualified revenue, to pay principal, interest, and premium on
the bonds or other financial obligations, but the lien shall not be
construed to give the holders authorization to compel the sale of a
project or a crossing.
(4) In determining whether to issue bonds under this act, the
authority may, by duly adopted action, do 1 or more of the
following:
(a) Authorize or enter into trust indentures or agreements,
insurance contracts, letters of credit, lines of credit,
commitments to purchase obligations, remarketing agreements,
reimbursement agreements, and any other transaction, agreement, or
instrument providing, for credit, liquidity, or security for the
timely payment of principal, interest, and premium on the bonds or
the purchase price of the bonds. Consistent with this act, an
instrument may contain covenants on the part of the authority with
respect to the bonds and the security for the payment of the bonds
and remedies for defaults, including, but not limited to, the
appointment of a receiver for a project. A bond may further provide
that money and funds subject to a statutory lien authorized by
subsection (3) be segregated and held in a separate fund or
account, which shall not be subject to being levied upon, taken,
sequestered, or applied toward any purpose other than a purpose for
which the statutory lien was created.
(b) Authorize the payment from the proceeds of the bonds or
from the sources of payment detailed in subsection (2) of the costs
of acquiring and maintaining any of the transactions, agreements,
or instruments described in subdivision (a), and of reimbursing any
draws or advances, with interest, on any credit or liquidity
facility.
(c) Authorize or provide for 1 or more specified officers,
employees, or agents of the authority, but only within limitations
contained in the authorizing action, to do 1 or more of the
following for and on behalf of the authority:
(i) Sell and deliver, and receive payment for the bonds.
(ii) Refund bonds by the delivery of new bonds whether or not
the bonds to be refunded have matured or are subject to redemption
or purchase prior to maturity on the date of delivery of the
refunding bonds.
(iii) Buy, hold, and sell bonds. The buying, holding, or selling
shall not cause the cancellation or merger of the bonds unless
specified otherwise by the authority.
(iv) Approve interest rates or methods for fixing interest
rates, prices, discounts, maturities, principal amounts,
denominations, dates of issuance, interest payment dates,
redemption or tender rights and obligations to be exercised by the
issuer or the holder of the bonds, places of delivery and payment,
and other ministerial matters and procedures necessary to complete
the transactions authorized by the authority.
(5) Bonds may be issued with the terms specified by the
authority consistent with the requirements of this act. Among other
terms that may be specified are any of the following:
(a) Maturity dates of the bonds, which shall not exceed 50
years from the later of the date the bonds are issued or the date
the project financed with the proceeds of the bonds is opened to
the public and collection user fees first occurs.
(b) Tender rights.
(c) Procedures for the holders of the bonds.
(d) Provisions for remarketing any bonds tendered.
(e) The nature of interest to be paid on the bonds, which may
be fixed or variable rates of interest or no stated interest, but
with payments of principal at amounts higher than the amounts paid
by the original purchaser for the bonds.
(6) The yield on any bonds issued under this act, taking into
account the price at which the bonds are sold, the stated interest
rates, and the amounts at which the bonds are to be paid at the
scheduled maturity date, shall not exceed the maximum rate
permitted by the revised municipal finance act, 2001 PA 34, MCL
141.2101 to 141.2821.
(7) The obligations of the authority under the agreements,
including termination payments, shall not constitute a pledge of
the faith and credit or indebtedness of this state or any political
subdivision of this state but shall be made payable from and
secured by a pledge of and lien on the same sources of funds as the
bonds in relation to which the agreements are entered into, or from
any other sources of funds available for the payment of bonds under
this act.
(8) All expenses incurred by the authority in carrying out
this section shall be payable solely from revenues provided or to
be provided under this act. This act does not authorize the
authority to incur any indebtedness or liability on behalf of or
payable by this state. This act does not authorize the authority to
levy a tax.
(9) Except as otherwise provided in this section, bonds issued
under this act are not subject to the revised municipal finance
act, 2001 PA 34, MCL 141.2101 to 141.2821.
(10) The issuance of bonds under this section is subject to
the agency financing reporting act, 2002 PA 470, MCL 129.171 to
129.177, and the revenue bond act of 1933, 1933 PA 94, MCL 141.101
to 141.140. If any provision of this act conflicts with the revenue
bond act of 1933, 1933 PA 94, MCL 141.101 to 141.140, the
provisions of this act shall control. The issuance of bonds under
this act is not subject to a referendum or approval by voters.
(11) The authority shall not have bonds issued by the
authority and outstanding at any 1 time for purposes authorized by
this act of a principal amount totaling more than 20% of the
project costs approved to date by the authority on the date on
which a crossing is open to the public and collecting user fees or
other charges.
(12) Bonds and other financial instruments issued under this
act, and any interest on the bonds or financial instruments, shall
be exempt from any taxation by this state or any other taxing
authority within this state.
Sec. 10. Unless explicitly authorized in this act, a
governance agreement or a public-private agreement entered into
under this act for a project shall not require this state to expend
any state funds for project costs, including, but not limited to,
availability payments paid by this state or any of its political
subdivisions.
Sec. 11. (1) User fees and other charges collected under this
act shall be determined and adjusted to pay project costs, to pay
bond obligations, to maintain reserves for those purposes, and to
establish and maintain reserves for debt service.
(2) The public-private agreement, user fees, and other charges
imposed by the authority are not subject to approval, regulation,
or taxation by any other state or local governmental entity in this
state.
(3) The activities and property of an authority under this act
are exempt from taxation by this state or a political subdivision
of this state.
(4) The activities and property of a governmental entity
created under a governance agreement authorized by this act are
exempt from taxation by this state or a political subdivision of
this state.
(5) Nothing in this act exempts the activities or property of
a concessionaire from taxation under other applicable laws.
Sec. 12. (1) Before a request for proposal is issued for a
project, the authority shall conduct at least 1 public hearing as
provided in section 7.
(2) Not later than 60 days before a public-private agreement
is executed and after issuing a request for proposal, the authority
shall conduct at least 1 public hearing on a proposed public-
private agreement.
(3) Not later than 60 days before a public-private agreement
is executed, the authority shall make the public-private agreement
and an executed governance agreement available to members of the
legislature by transmitting copies to the clerk of the house of
representatives and the secretary of the senate, excluding any
confidential information exempted from disclosure by the authority
under section 7.
(4) A duly constituted and authorized legislative committee,
including, but not limited to, the appropriations committees of the
house of representatives or the senate or the transportation
committees of the house of representatives or the senate, or any
successor committees, may conduct legislative oversight hearings on
activities of the authority at any time, including, but not limited
to, activities relating to a proposed public-private agreement, a
public-private agreement, or a governance agreement. The authority,
the department, political subdivisions of the state, and all
private parties to the proposed or subsequently executed public-
private agreement shall actively cooperate and shall attend the
hearing and provide live testimony at the hearing without a
subpoena.
Sec. 13. (1) The authority shall submit any public-private
agreement proposed to be entered into under this act to the
legislature. If the legislature does not disapprove by concurrent
resolution the public-private agreement within 60 session days of
submittal, the public-private agreement may be finalized.
(2) The legislature may approve by concurrent resolution a
public-private agreement before the expiration of the 60-session-
day period established in subsection (1). If the legislature
approves the public-private agreement, the remaining portion of the
60-session-day period is waived and the public–private agreement
may be finalized.
Sec. 15. (1) All law enforcement officers of this state and
local units of government in which all or part of a crossing is
located shall have the same powers and jurisdiction within the
limits of a crossing as they have in their respective areas of
jurisdiction to enforce traffic and motor vehicle laws. Authorized
emergency vehicles and occupants of authorized emergency vehicles
shall be afforded access to a crossing while in the performance of
an official duty without the payment of a user fee or other charge.
As used in this subsection, "authorized emergency vehicle" means
that term as defined in section 2 of the Michigan vehicle code,
1949 PA 300, MCL 257.2.
(2) Punishment for violations of traffic and motor vehicle
laws within the limits of a crossing shall be as generally
prescribed by law.
(3) A person who fails to pay a user fee imposed for use of a
crossing is responsible for a civil infraction and shall pay $50.00
as a civil fine. In addition, the person shall pay the project
operator 2 times the amount of the user fee. If that sum remains
unpaid for 180 days after the person's use of the crossing, the
department, the authority, or a concessionaire may bring a civil
action against the person to collect the unpaid charges in a court
having jurisdiction. If the civil action results in a judgment for
unpaid charges, the defendant shall also be required to reimburse
the plaintiff for all filing fees incurred by the plaintiff plus
$500.00 in compensation for the costs of bringing the civil action.
(4) During the period that a person owes and has failed to pay
charges, fees, and costs under subsection (3), the person and a
motor vehicle used by the person may be barred from using the
crossing.
(5) Except as provided in section 675b of the Michigan vehicle
code, 1949 PA 300, MCL 257.675b, involving leased vehicles, proof
that a particular vehicle used a crossing without payment of the
applicable user fee, together with proof from the department of
state of the name of the vehicle's registered owner, creates a
presumption that the vehicle's registered owner was the person who
used the crossing, who failed to pay the user fee, and who is prima
facie responsible for the unpaid charges. If the conditions of
section 675b of the Michigan vehicle code, 1949 PA 300, MCL
257.675b, are satisfied, establishing that the vehicle described in
the violation was in the possession of, custody of, or was being
operated or used by the lessee or renter of the leased vehicle at
the time of violation, the lessee or renter of the leased vehicle
and not the leased vehicle owner is the person liable under this
section.
(6) The owner of a vehicle alleged to have used a crossing
without paying an applicable user fee may assert as an affirmative
defense that the vehicle in question, at the time of the use of the
crossing, was in the possession of a person whom the owner had not
knowingly permitted to operate the vehicle.
Sec. 16. (1) Except as otherwise provided in this act, this
state shall not expend any state funds for project costs incurred
after the effective date of this act.
(2) The department may expend state and federal funds for the
purpose of eminent domain proceedings, professional fees,
administrative costs, planning costs related to a project, and
interchange maintenance costs for an interchange that is included
within a crossing if the interchange is part of a state trunk line
and the maintenance is performed after the date the crossing is
open to the public and generating user fees.
(3) A governance agreement or public-private agreement shall
not require a pledge of the full faith and credit of this state or
apolitical subdivision of this state.
(4) For the fiscal year ending September 30, 2011, $10,000.00
is appropriated to the legislative council for the purpose of
performing legislative oversight activities under this act.
(5) As used in this section, "state funds" does not include
any of the following:
(a) Project revenues.
(b) Any contributions, payments, or advances made by a public
agency of Canada pursuant to a governance agreement.
(c) Any gifts, contributions, grants, or other funds received
for or in aid of a project from the federal government or any
agency of the federal government.
Enacting section 1. This act is repealed effective January 1,
2015 if the authority has not entered into a governance agreement
under this act on or before December 31, 2014.
Enacting section 2. The legislature intends that this act is
authorized and advances a legitimate public purpose under section 5
of article III of the state constitution of 1963. The legislature
further intends this act to authorize the state to participate in a
project under this act relating to a bridge and approaches that
will connect this state with Canada and authorize the collection of
tolls for its use pursuant to section 535 of the international
bridge act of 1972, 33 USC 535.
Enacting section 3. This act is declared to be severable. If
any portion of this act or the application of this act to any
person or circumstances is found to be invalid by a court, the
invalidity of that portion shall not affect the remaining portions
or applications that can be given effect without the invalid
portion or application, provided the remaining portions are not
determined by the court to be inoperable.
Enacting section 4. This act takes effect January 2, 2012.
