(630 ILCS 5/35)
Sec. 35. Public-private agreements.
(a) Unless undertaking actions otherwise permitted in an interim agreement entered into under Section 30 of this Act, before developing, financing, or operating the transportation project, the approved proposer shall enter into a public-private agreement with the transportation agency. Subject to the requirements of this Act, a public-private agreement may provide that the approved proposer, acting on behalf of the transportation agency, is partially or entirely responsible for any combination of developing, financing, or operating the transportation project under terms set forth in the public-private agreement.
(b) The public-private agreement may, as determined appropriate by the transportation agency for the particular transportation project, provide for some or all of the following:
(1) Development, financing, and operation of the
transportation project under terms set forth in the public-private agreement, in any form as deemed appropriate by the transportation agency, including, but not limited to, a long-term concession and lease, a design-bid-build agreement, a design-build agreement, a design-build-maintain agreement, a design-build-finance agreement, a design-build-operate-maintain agreement and a design-build-finance-operate-maintain agreement.
(2) Delivery of performance and payment bonds or
other performance security determined suitable by the transportation agency, including letters of credit, United States bonds and notes, parent guaranties, and cash collateral, in connection with the development, financing, or operation of the transportation project, in the forms and amounts set forth in the public-private agreement or otherwise determined as satisfactory by the transportation agency to protect the transportation agency and payment bond beneficiaries who have a direct contractual relationship with the contractor or a subcontractor of the contractor to supply labor or material. The payment or performance bond or alternative form of performance security is not required for the portion of a public-private agreement that includes only design, planning, or financing services, the performance of preliminary studies, or the acquisition of real property.
(3) Review of plans for any development or operation,
or both, of the transportation project by the transportation agency.
(4) Inspection of any construction of or improvements
to the transportation project by the transportation agency or another entity designated by the transportation agency or under the public-private agreement to ensure that the construction or improvements conform to the standards set forth in the public-private agreement or are otherwise acceptable to the transportation agency.
(5) Maintenance of:
(A) one or more policies of public liability
insurance (copies of which shall be filed with the transportation agency accompanied by proofs of coverage); or
(B) self-insurance;
each in form and amount as set forth in the
public-private agreement or otherwise satisfactory to the transportation agency as reasonably sufficient to insure coverage of tort liability to the public and employees and to enable the continued operation of the transportation project.
(6) Where operations are included within the
contractor's obligations under the public-private agreement, monitoring of the maintenance practices of the contractor by the transportation agency or another entity designated by the transportation agency or under the public-private agreement and the taking of the actions the transportation agency finds appropriate to ensure that the transportation project is properly maintained.
(7) Reimbursement to be paid to the transportation
agency as set forth in the public-private agreement for services provided by the transportation agency.
(8) Filing of appropriate financial statements and
reports as set forth in the public-private agreement or as otherwise in a form acceptable to the transportation agency on a periodic basis.
(9) Compensation or payments to the contractor.
Compensation or payments may include any or a combination of the following:
(A) a base fee and additional fee for project
savings as the design-builder of a construction project;
(B) a development fee, payable on a lump-sum
basis, progress payment basis, time and materials basis, or another basis deemed appropriate by the transportation agency;
(C) an operations fee, payable on a lump-sum
basis, time and material basis, periodic basis, or another basis deemed appropriate by the transportation agency;
(D) some or all of the revenues, if any, arising
out of operation of the transportation project;
(E) a maximum rate of return on investment or
return on equity or a combination of the two;
(F) in-kind services, materials, property,
equipment, or other items;
(G) compensation in the event of any termination;
(H) availability payments or similar arrangements
whereby payments are made to the contractor pursuant to the terms set forth in the public-private agreement or related agreements; or
(I) other compensation set forth in the
public-private agreement or otherwise deemed appropriate by the transportation agency.
(10) Compensation or payments to the transportation
agency, if any. Compensation or payments may include any or a combination of the following:
(A) a concession or lease payment or other fee,
which may be payable upfront or on a periodic basis or on another basis deemed appropriate by the transportation agency;
(B) sharing of revenues, if any, from the
operation of the transportation project;
(C) sharing of project savings from the
construction of the transportation project;
(D) payment for any services, materials,
equipment, personnel, or other items provided by the transportation agency to the contractor under the public-private agreement or in connection with the transportation project; or
(E) other compensation set forth in the
public-private agreement or otherwise deemed appropriate by the transportation agency.
(11) The date and terms of termination of the
contractor's authority and duties under the public-private agreement and the circumstances under which the contractor's authority and duties may be terminated prior to that date.
(12) Reversion of the transportation project to the
transportation agency at the termination or expiration of the public-private agreement.
(13) Rights and remedies of the transportation agency
in the event that the contractor defaults or otherwise fails to comply with the terms of the public-private agreement.
(14) Procedures for the selection of professional
design firms and subcontractors, which shall include procedures consistent with the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act for the selection of professional design firms and may include, in the discretion of the transportation agency, procedures consistent with the low bid procurement procedures outlined in the Illinois Procurement Code for the selection of construction companies.
(15) Other terms, conditions, and provisions that the
transportation agency believes are in the public interest.
(c) The transportation agency may fix and revise the amounts of user fees that a contractor may charge and collect for the use of any part of a transportation project in accordance with the public-private agreement. In fixing the amounts, the transportation agency may establish maximum amounts for the user fees and may provide that the maximums and any increases or decreases of those maximums shall be based upon the indices, methodologies, or other factors the transportation agency considers appropriate.
(d) A public-private agreement may:
(1) authorize the imposition of tolls in any manner
determined appropriate by the transportation agency for the transportation project;
(2) authorize the contractor to adjust the user fees
for the use of the transportation project, so long as the amounts charged and collected by the contractor do not exceed the maximum amounts established by the transportation agency under the public-private agreement;
(3) provide that any adjustment by the contractor
permitted under paragraph (2) of this subsection (d) may be based on the indices, methodologies, or other factors described in the public-private agreement or approved by the transportation agency;
(4) authorize the contractor to charge and collect
user fees through methods, including, but not limited to, automatic vehicle identification systems, electronic toll collection systems, and, to the extent permitted by law, global positioning system-based, photo-based, or video-based toll collection enforcement, provided that to the maximum extent feasible the contractor will (i) utilize open road tolling methods that allow payment of tolls at highway speeds and (ii) comply with United States Department of Transportation requirements and best practices with respect to tolling methods; and
(5) authorize the collection of user fees by a third
party.
(e) In the public-private agreement, the transportation agency may agree to make grants or loans for the development or operation, or both, of the transportation project from time to time from amounts received from the federal government or any agency or instrumentality of the federal government or from any State or local agency.
(f) Upon the termination or expiration of the public-private agreement, including a termination for default, the transportation agency shall have the right to take over the transportation project and to succeed to all of the right, title, and interest in the transportation project. Upon termination or expiration of the public-private agreement relating to a transportation project undertaken by the Department, all real property acquired as a part of the transportation project shall be held in the name of the State of Illinois. Upon termination or expiration of the public-private agreement relating to a transportation project undertaken by the Authority, all real property acquired as a part of the transportation project shall be held in the name of the Authority.
(g) If a transportation agency elects to take over a transportation project as provided in subsection (f) of this Section, the transportation agency may do the following:
(1) develop, finance, or operate the project,
including through a public-private agreement entered into in accordance with this Act; or
(2) impose, collect, retain, and use user fees, if
any, for the project.
(h) If a transportation agency elects to take over a transportation project as provided in subsection (f) of this Section, the transportation agency may use the revenues, if any, for any lawful purpose, including to:
(1) make payments to individuals or entities in
connection with any financing of the transportation project, including through a public-private agreement entered into in accordance with this Act;
(2) permit a contractor to receive some or all of the
revenues under a public-private agreement entered into under this Act;
(3) pay development costs of the project;
(4) pay current operation costs of the project or
facilities;
(5) pay the contractor for any compensation or
payment owing upon termination; and
(6) pay for the development, financing, or operation
of any other project or projects the transportation agency deems appropriate.
(i) The full faith and credit of the State or any political subdivision of the State or the transportation agency is not pledged to secure any financing of the contractor by the election to take over the transportation project. Assumption of development or operation, or both, of the transportation project does not obligate the State or any political subdivision of the State or the transportation agency to pay any obligation of the contractor.
(j) The transportation agency may enter into a public-private agreement with multiple approved proposers if the transportation agency determines in writing that it is in the public interest to do so.
(k) A public-private agreement shall not include any provision under which the transportation agency agrees to restrict or to provide compensation to the private entity for the construction or operation of a competing transportation facility during the term of the public-private agreement.
(l) With respect to a public-private agreement entered into by the Department, the Department shall certify in its State budget request to the Governor each year the amount required by the Department during the next State fiscal year to enable the Department to make any payment obligated to be made by the Department pursuant to that public-private agreement, and the Governor shall include that amount in the State budget submitted to the General Assembly.
(Source: P.A. 97-502, eff. 8-23-11; 97-858, eff. 7-27-12.)
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Last modified: February 18, 2015