630 ILCS 5/35

(630 ILCS 5/35)

(Text of Section before amendment by P.A. 103-865)

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 responsible public entity, 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 responsible public entity 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 responsible public entity, 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 responsible public entity, 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 responsible public entity to protect the responsible public entity 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 responsible public entity.

(4) Inspection of any construction of or improvements to the transportation project by the responsible public entity or another entity designated by the responsible public entity 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 responsible public entity.

(5) Maintenance of:

(A) one or more policies of public liability insurance (copies of which shall be filed with the responsible public entity 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 responsible public entity 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 responsible public entity or another entity designated by the responsible public entity or under the public-private agreement and the taking of the actions the responsible public entity finds appropriate to ensure that the transportation project is properly maintained.

(7) Reimbursement to be paid to the responsible public entity as set forth in the public-private agreement for services provided by the responsible public entity.

(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 responsible public entity 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 responsible public entity;

(C) an operations fee, payable on a lump-sum basis, time and material basis, periodic basis, or another basis deemed appropriate by the responsible public entity;

(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 responsible public entity.

(10) Compensation or payments to the responsible public entity, 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 responsible public entity;

(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 responsible public entity 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 responsible public entity.

(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 responsible public entity at the termination or expiration of the public-private agreement.

(13) Rights and remedies of the responsible public entity 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 responsible public entity, 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 responsible public entity believes are in the public interest.

(c) The responsible public entity 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 responsible public entity 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 responsible public entity considers appropriate.

(d) A public-private agreement may:

(1) authorize the imposition of tolls in any manner determined appropriate by the responsible public entity 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 responsible public entity 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 responsible public entity;

(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 responsible public entity 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 responsible public entity 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 responsible public entity elects to take over a transportation project as provided in subsection (f) of this Section, the responsible public entity 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 responsible public entity elects to take over a transportation project as provided in subsection (f) of this Section, the responsible public entity 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 responsible public entity deems appropriate.

(i) The full faith and credit of the State or any political subdivision of the State or the responsible public entity 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 responsible public entity to pay any obligation of the contractor.

(j) The responsible public entity may enter into a public-private agreement with multiple approved proposers if the responsible public entity 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 responsible public entity 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. 103-570, eff. 1-1-24.)

(Text of Section after amendment by P.A. 103-865)

Sec. 35. Public-private agreements.

(a) A responsible public entity may enter into public-private agreements as outlined in this Section. The transportation agency may receive unsolicited proposals to enter into public-private agreements as outlined in Section 19.

(a-5) 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 responsible public entity. Subject to the requirements of this Act, a public-private agreement may provide that the approved proposer, acting on behalf of the responsible public entity, 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 responsible public entity 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 responsible public entity, 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 responsible public entity, 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 responsible public entity to protect the responsible public entity 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 responsible public entity.

(4) Inspection of any construction of or improvements to the transportation project by the responsible public entity or another entity designated by the responsible public entity 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 responsible public entity.

(5) Maintenance of:

(A) one or more policies of public liability insurance (copies of which shall be filed with the responsible public entity 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 responsible public entity 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 responsible public entity or another entity designated by the responsible public entity or under the public-private agreement and the taking of the actions the responsible public entity finds appropriate to ensure that the transportation project is properly maintained.

(7) Reimbursement to be paid to the responsible public entity as set forth in the public-private agreement for services provided by the responsible public entity.

(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 responsible public entity 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 responsible public entity;

(C) an operations fee, payable on a lump sum basis, time and material basis, periodic basis, or another basis deemed appropriate by the responsible public entity;

(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 responsible public entity.

(10) Compensation or payments to the responsible public entity, 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 responsible public entity;

(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 responsible public entity 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 responsible public entity.

(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 responsible public entity at the termination or expiration of the public-private agreement.

(13) Rights and remedies of the responsible public entity 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 for use by the responsible public entity or eligible county as an owner's representation services, which shall be 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 responsible public entity, 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 responsible public entity believes are in the public interest.

(c) The responsible public entity 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 responsible public entity 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 responsible public entity considers appropriate.

(c-5) The Department may accept proposals subject to environmental review and the documentation of the environmental review. The environmental review and documentation of the environmental review shall at all times be conducted as directed by the Department, shall be subject to the oversight of the Department, and shall comply with all requirements of State and federal law, applicable federal regulations, and the National Environmental Policy Act (42 U.S.C. 4321 et seq.), if applicable, including, but not limited to, the study of alternatives to the proposed project and any proposed alignments, procedural requirements, and the completion of any and all environmental documents required to be completed by the Department and any federal agency acting as a lead agency. All environmental mitigation commitments agreed to during the environmental review phase are required to be implemented during project implementation, or, as required, to ensure compliance is maintained with all applicable environmental laws and regulations.

(d) A public-private agreement may:

(1) authorize the imposition of tolls in any manner determined appropriate by the responsible public entity 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 responsible public entity 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 responsible public entity;

(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 responsible public entity 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 responsible public entity 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 responsible public entity elects to take over a transportation project as provided in subsection (f) of this Section, the responsible public entity 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 responsible public entity elects to take over a transportation project as provided in subsection (f) of this Section, the responsible public entity 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 responsible public entity deems appropriate.

(i) The full faith and credit of the State or any political subdivision of the State or the responsible public entity 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 responsible public entity to pay any obligation of the contractor.

(j) The responsible public entity may enter into a public-private agreement with multiple approved proposers if the responsible public entity 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 responsible public entity 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. 103-570, eff. 1-1-24; 103-865, eff. 1-1-25.)