SB0313sam001 99TH GENERAL ASSEMBLY

Sen. Heather A. Steans

Filed: 3/27/2015

09900SB0313sam001 LRB099 02949 MRW 33526 a

AMENDMENT TO SENATE BILL 313

AMENDMENT NO. ______. Amend Senate Bill 313 by replacing everything after the enacting clause with the following:

"Section 1. Short title. This Act may be cited as the Alternative Finance and Procurement Agreement Act.

Section 5. Definitions. As used in this Act:

"Alternative finance and procurement agreement" means a contract for a project which transfers the business rights for the use or control, in whole or in part, of a public building, public service, public asset, or transportation asset, by a public agency to a development entity for a definite term during which the development entity shall provide the project to the public agency in return for the right to receive all or a portion of the revenue generated from the use of the facility, or other payment, such as the following services: operations and maintenance; revenue collection; user fee collection or enforcement; design; construction; development; and other activities that expand or enhance existing or new public buildings, public assets, public services, or transportation assets.

"Board" means the Alternative Finance and Procurement Board.

"Consultant" means any person or entity who, within the preceding 4 years, has been or is employed by a private entity or public agency to make recommendations in developing a project or assist with finding appropriate advisers. "Consultant" does not include professionals or professionals offering services, who are not directly or indirectly related to the development of a project.

"Development entity" means an entity which is a party to an alternative finance and procurement agreement and which is a private entity or public agency, other than the public agency providing or improving its own facilities.

"Gift" means a gift as defined in Section 1-5 of the State Officials and Employees Ethics Act.

"Life of the project" means the amount of time required for construction of a project, financing of a project, operational period of a project, maintenance term of a project, or other method of determining that a project has been completed.

"Offeror" means a person or private entity that submits a proposal or a response in answer to a request for proposals or transportation projects.

"Party in interest" means a person who with respect to a proposed project under this Act is:

(1) a current or former counsel or employee of the offeror;

(2) currently or in the past has provided services to the offeror; or

(3) a relative of a person described in subparagraph (1) or (2) of this paragraph.

"P3 project" means a contractual agreement between a public entity and private entity that:

(1) transfers the responsibility of a facility's engineering, construction, operation, or maintenance to the private sector for a defined period of time;

(2) allows the private sector to perform by contract a service previously provided by the public sector; and

(3) ensures the private entity receives payments either from existing revenue sources or through the collection of new tolls or user fees.

"Private entity" means a person, entity, group, or organization that is not the federal government, the State, or other public agency.

"Prohibited source" means a person or entity who:

(1) is seeking official action:

(A) by the Board; or

(B) by a Board member;

(2) does business or seeks to do business:

(A) with the Board; or

(B) with a Board member;

(3) has interests that may be substantially affected by the performance or non-performance of the official duties of a Board member; or

(4) is registered or required to be registered with the Secretary of State under the Lobbyist Registration Act, except that an entity not otherwise a prohibited source does not become a prohibited source merely because a registered lobbyist is one of its members or serves on its board of directors.

"Project" means an undertaking by a development entity under an alternative finance and procurement agreement that is entered into under this Act to provide or improve a public asset, public building, public service, or transportation asset which is totally or partially located within the State.

"Public agency" means any municipality or unit of local government, any public school district, any public college or university, any public building commission, the State, an instrumentality and an administrative agency or any other agency of the State or of the United States, or of any other state, any political subdivision of another state, and any combination of the above under an intergovernmental agreement which includes provisions for a governing body of the agency created by the agreement.

"Public asset" means any proposed or existing park, clean water system, waste water system, energy asset, telecommunications asset, or any other asset owned by a public agency.

"Public building" means any proposed or existing school, community center, fire station, police station, community college, university, hospital, library, or other building owned by a public agency.

"Public service" means any proposed or existing service performed or provided by a public agency or private entity.

"Transportation asset" means a proposed or existing road, toll highway, bridge, tunnel, overpass, ferry, bus way, guideway, public transportation facility, vehicle parking facility, port facility, commercial and public navigation lock and dam, commercial waterway, multimodal transportation facility, airport, station, hub, terminal or similar facility used or to be used for the transportation of persons, animals or goods, together with any buildings, structures, parking areas, appurtenances, intelligent transportation systems, and other property needed to operate or related to the operation of the transportation facility. "Transportation asset" includes any improvements or substantial enhancements or modifications to an existing transportation facility.

"Unit of local government" has the meaning ascribed to that term in Article VII, Section 1 of the Constitution of the State of Illinois and also means any unit designated as a municipal corporation.

Section 10. Alternative Finance and Procurement Board.

(a) An Alternative Finance and Procurement Board is hereby created, which shall be composed of 9 members appointed by the Governor. The members of the Board shall be residents of this State and have expertise or substantial experience in one or more of the following areas:

(1) public buildings;

(2) agriculture;

(3) public utilities;

(4) finance;

(5) transportation;

(6) law; or

(7) land use and public planning.

(b) Board members shall not hold any other position as an elected official or employee of the State or other public agency. No member of the Board during his or her term of office shall directly or indirectly own or have any financial interest in, be associated with or receive any fee, commission, compensation or anything of value from any state agency or private entity seeking to engage in an alternative finance and procurement agreement that will be under the consideration of the Board.

(c) Of the initial appointments, 3 members shall be appointed for one-year terms, 3 members shall be appointed for 2-year terms, and 3 members shall be appointed for 4-year terms. Members shall serve until their successor is appointed and may not serve more than one 4-year term. After the initial terms have expired, all members shall be appointed for 4-year terms. A member may resign or be removed by the Governor. If a vacancy occurs, the Governor shall make an appointment to fill the vacancy for the remainder of the unexpired term.

(d) The Board members shall designate a Chairperson from among the appointed members of the Board.

(e) The Chairperson, after consultation with the members and any appropriate State agencies, shall designate representatives of any State agencies deemed necessary to serve on the Board as ex officio members to provide technical background support to the Board.

(f) A majority of the appointed members of the Board shall constitute a quorum. The adoption of any action of the Board shall require a majority vote of the appointed members of the Board.

(g) The Board shall meet as necessary to conduct business, but shall meet at least once every 2 months.

(h) Board members shall serve without compensation, but may be reimbursed for reasonable expenses.

Section 15. Alternative finance and procurement agreements.

(a) Any public agency may enter into an alternative finance and procurement agreement with any private entity for improving transportation assets, public buildings, public services, or other public assets.

(b) The Board shall review and provide input on project financing, procurement, and project delivery in the State. The Board may review and approve alternative and procurement projects that improve or construct public assets, public buildings, public services, and transportation assets, except those entered into under the Public-Private Partnerships for Transportation Act. However, public agencies are not required to use the Board, but may bring projects before the Board to determine the types of financing, procurement, and project delivery that are possible for a project, which includes, but is not limited to, traditional and alternative modes of financing including those that result in an infrastructure agreement. No person who is a party in interest or a consultant may participate in the evaluation of proposals on behalf of the Board.

(c) The Board shall submit an annual report to the Governor and the General Assembly detailing all projects evaluated, adopted, and completed, and the evidence used in making the Board's decisions.

Section 20. Alternative finance and procurement agreement procedure.

(a) Within 120 days after the effective date of this Act, the Board shall adopt:

(1) a governing structure for the conduct of Board business, including how and when the Board shall meet, make decisions, inform the public of its decisions, and function as an independent entity;

(2) the procedure by which a public agency can submit a request for a project;

(3) the procedure by which an offeror may submit a solicited or an unsolicited plan for a project to the Board, including adequate time for the preparation, submission, and evaluation of competitive proposals on a case-by-case basis;

(4) clear standards of project approval for different project types, such as standards for schools, roads, or waterways;

(5) the procedure of which the Board collects and compiles a list of all projects that improve or construct public assets, public buildings, public services, and transportation assets within this State;

(6) guidelines to aggregate several projects to form one alternative finance and procurement agreement;

(7) guidelines for a public agency to make payments to unsuccessful bidders for work product contained in their proposals if that part is chosen as a component of a project;

(8) guidelines for allowing more than one public agency to enter into a single alternative finance and procurement agreement; and

(9) clear standards identifying traditional, nontraditional, or innovative project delivery methods or agreements that public agencies can utilize to address their needs and serve the public interest.

(b) Projects submitted to the Board must have an identified, stable, and predictable funding source for the life of the project. Projects shall be assessed on a case by case basis with performance outcomes project to project. Projects and agreements shall be structured to achieve the best method to implement the established and approved goals of the Board; however, there may not be restrictions concerning the geographic location of P3 projects or restrictions regarding the asset type eligible to be developed as a P3 project.

(c) The Board shall evaluate and rule upon a project within 3 months of submission of the project to the Board.

(d) The Board may charge application fees for unsolicited proposals to offset proposal review costs.

(e) Within a 120 days after the effective date of this Act, the Board shall establish and implement a publicly accessible Internet website.

Section 25. Ethics.

(a) No member of the Board shall intentionally solicit or accept any gift from any prohibited source as prescribed in Article 10 of the State Officials and Employees Ethics Act. The exceptions contained in Section 10-15 of that Act, other than paragraphs (4) and (5) of Section 10-15 of that Act shall apply to members of the Board. However, solicitation or acceptance of educational materials is not prohibited. For the purposes of this Section, references to "State employee" and "employee" in Article 10 of the State Officials and Employees Ethics Act shall include a trustee or employee of a retirement system, pension fund, or investment board created under State law.

(1) A municipality may adopt or maintain policies or ordinances that are more restrictive than those under this subsection (a) and may continue to follow any existing policies or ordinances that are more restrictive or are in addition to those under this subsection (a).

(2) To the extent that the provisions of this subsection (a) conflict with the provisions of the State Officials and Employees Ethics Act, the provisions of this subsection (a) control.

(3) Violation of this subsection (a) is a Class A misdemeanor.

(b) No member of the Board nor any spouse of a member shall knowingly have any direct interest in the income, gains, or profits of any projects brought before the Board, nor receive any pay or emolument for services in connection with any project. No member of the Board shall become an endorser of any project under this Act. Violation of this subsection is a Class 3 felony.".