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Session Law

1999

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Chapter 53 AN ACT PROVIDING FOR AN ACCELERATED TRANSPORTATION DEVELOPMENT AND IMPROVEMENT PROGRAM FOR THE COMMONWEALTH.

Whereas , The deferred operation of this act would tend to defeat its purpose, which is forthwith to provide for an accelerated transportation development and improvement program for the commonwealth, therefore it is hereby declared to be an emergency law, necessary for the immediate preservation of the public convenience.


Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:


SECTION 1. Section 2A of chapter 11 of the acts of 1997 is hereby amended by striking out item 6033-9797.

SECTION 2. Item 6036-9716 of said section 2A of said chapter 11 is hereby amended by striking out the figure "1,158,750,000" and inserting in place thereof the following figure:- 1,625,000,000.

SECTION 2A. To provide for a program of transportation development and improvements, the sums set forth in section 2B for the several purposes and subject to the conditions specified in this act and are hereby made available subject to the provisions of law regulating the disbursement of public funds and approval thereof.

SECTION 2B.

EXECUTIVE OFFICE OF TRANSPORTATION AND CONSTRUCTION.
Department of Highways.

6037-0019 For construction and reconstruction of town and county ways pursuant to sections 2E and 2F...........................$150,000,000

SECTION 2C. To meet the expenditures necessary in carrying out the provisions of section 2B,the state treasurer shall, upon request of the governor, issue and sell bonds of the commonwealth in amounts to be specified by the governor from time to time but not exceeding, in the aggregate, the sum of $150,000,000 to be in addition to those bonds previously authorized for projects and programs which remain uncommitted or unobligated on the effective date of this act. All bonds issued by the commonwealth as aforesaid shall be designated on their face, Highway Improvement Loan, Act of 1999, and shall be issued for such maximum term of years, not exceeding 20 years, as the governor may recommend to the general court pursuant to Section 3 of Article LXII of the Amendments to the Constitution of the Commonwealth. All such bonds shall be payable not later than June 30, 2024. All interest and payments on account of principal of such obligations shall be payable from the Highway Fund. Bonds and interest thereon issued under the authority of this section shall be general obligations of the commonwealth. Any bonds issued by the state treasurer pursuant to this section shall, upon the request of the governor, be issued as special obligation bonds pursuant to section 2 O of chapter 29 of the General Laws. In deciding whether to request the issuance of particular bonds as special obligations, the governor shall take into account: (i) generally prevailing financial market conditions; (ii) the impact of each approach on the overall capital financing plans and needs of the commonwealth; (iii) any ratings assigned to outstanding bonds of the commonwealth and any ratings expected to be assigned by any nationally-recognized credit rating agency to the bonds proposed to be issued; and (iv) any applicable provisions of a trust agreement or credit enhancement agreement entered into pursuant to said section 2 O of said chapter 29. All special obligation revenue bonds issued pursuant to this section shall be designated on their face, Special Obligation Revenue Highway Improvement Loan, Act of 1999, and shall be issued for a maximum term of years, not exceeding 20 years, as the governor may recommend to the general court pursuant to Section 3 of Article LXII of the Amendments to the Constitution of the Commonwealth; provided, however, that all such bonds shall be payable not later than June 30, 2024. All interest and payments on account of principal on such obligations shall be payable from the Infrastructure Fund established in said section 2 O of said chapter 29. Special obligation bonds issued pursuant to this section shall be special obligations of the commonwealth payable solely in accordance with the provisions of said section 2 O of said chapter 29.

SECTION 2D. The state treasurer may borrow from time to time on the credit of the commonwealth such sums as may be necessary for the purpose of meeting payments authorized by section 2B and may issue and renew from time to time notes of the commonwealth therefor bearing interest payable at such times and at such rates as shall be fixed by the state treasurer. Such notes shall be issued and may be renewed one or more times for such terms, not exceeding one year, as the governor may recommend to the general court in accordance with Section 3 of Article LXII of the Amendments to the Constitution of the Commonwealth, but the final maturities of the notes, whether original or renewal, shall not be later than June 30, 2004. All interest and payments on account of principal of such obligations shall be payable from the Highway Fund. Notes and interest thereon issued under the authority of this section shall be general obligations of the commonwealth. The state treasurer may determine to issue any notes as special obligations pursuant to section 2 O of chapter 29 of the General Laws if the notes or renewals thereof are to be paid from the proceeds of special obligation bonds to be issued pursuant to said section 2 O.

SECTION 2E. The funds appropriated in item 6037-0019 of section 2B are hereby made available and shall be in addition to those funds appropriated in clause (c) of section 3 of chapter 15 of the acts of 1988, section 10 of chapter 208 of the acts of 1988, clause (c) of section 3 of chapter 33 of the acts of 1991, item 6010-3950 of section 2A of chapter 85 of the acts of 1994, item 6036-9698 of section 2A of chapter 113 of the acts of 1996, and item 6033-9798 of section 2B of chapter 11 of the acts of 1997 for projects for construction and reconstruction of town and county ways as described in subclause (a) of clause (2) of the second paragraph of section 34 of chapter 90 of the General Laws. A city or town shall comply with procedures established by the department of highways and any such city or town may appropriate for such projects amounts not in excess of the amounts provided to such city or town under this section and any such appropriation shall be considered as an available fund upon the approval of the commissioner of revenue pursuant to section 23 of chapter 59 of the General Laws. The commonwealth shall reimburse any such city or town under this section within 30 days of receipt by the department of a request for reimbursement from the city or town, such request to include certification by such city or town that actual expenses have been incurred on projects eligible for reimbursement under this section and that the work has been completed to the satisfaction of such city or town according to the specifications of the project and in compliance with applicable law. The department of highways may enter into agreements with cities and towns to provide engineering and other services essential to the development of projects and if the department agrees to provide services, amounts charged for department employees may include the salary and salary-related expenses of such employees to the extent that they work on or in support of such projects. The funds provided herein may be expended for the entire cost of any project eligible under the provisions of said chapter 90 and for the transportation enhancement project as described in the Intermodal Surface Transportation Efficiency Act of 1991, PL 102-240 and for the repair, replacement or removal of underground municipal public works fuel tanks.

SECTION 2F. Notwithstanding the provisions of any general or special law to the contrary, the funds authorized in item 6037-0019 of section 2B shall be distributed according to the schedule listed below:-

ABINGTON.................$291,772 r> ACTON....................$520,102 r> ACUSHNET.................$222,025 ADAMS....................$237,940 AGAWAM...................$519,250 ALFORD...................$58,361 AMESBURY.................$321,020 AMHERST..................$603,950 ANDOVER..................$1,018,727 AQUINNAH.................$27,787 ARLINGTON................$633,674 ASHBURNHAM...............$256,050 ASHBY....................$181,288 ASHFIELD.................$235,172 ASHLAND..................$304,840 ATHOL....................$402,515 ATTLEBOROUGH.............$955,388 AUBURN...................$453,494 AVON.....................$156,681 AYER.....................$180,666 BARNSTABLE...............$1,571,849 BARRE....................$350,102 BECKET...................$190,580 BEDFORD..................$467,966 BELCHERTOWN..............$429,099 BELLINGHAM...............$371,690 BELMONT..................$414,012 BERKLEY..................$167,400 BERLIN...................$149,592 BERNARDSTON..............$146,813 BEVERLY..................$760,565 BILLERICA................$811,054 BLACKSTONE...............$180,054 BLANDFORD................$207,088 BOLTON...................$214,140 BOSTON...................$11,013,879 BOURNE...................$458,348 BOXBOROUGH...............$128,317 BOXFORD..................$321,266 BOYLSTON.................$150,551 BRAINTREE................$805,579 BREWSTER.................$248,152 BRIDGEWATER..............$512,826 BRIMFIELD................$223,435 BROCKTON.................$1,518,606 BROOKFIELD...............$131,220 BROOKLINE................$748,861 BUCKLAND.................$144,648 BURLINGTON...............$709,942 CAMBRIDGE................$1,995,761 CANTON...................$566,381 CARLISLE.................$179,680 CARVER...................$304,963 CHARLEMONT...............$145,432 CHARLTON.................$450,311 CHATHAM..................$261,763 CHELMSFORD...............$818,146 CHELSEA..................$399,739 CHESHIRE.................$161,356 CHESTER..................$191,434 CHESTERFIELD.............$175,417 CHICOPEE.................$967,337 CHILMARK.................$51,584 CLARKSBURG...............$55,062 CLINTON..................$256,740 COHASSET*$161,355 COLRAIN*$263,250 CONCORD*$535,167 CONWAY*$212,696 CUMMINGTON*$161,419 DALTON*$186,681 DANVERS*$687,114 DARTMOUTH*$833,785 DEDHAM*$497,270 DEERFIELD*$304,430 DENNIS*$541,254 DIGHTON*$218,211 DOUGLAS*$263,740 DOVER*$194,409 DRACUT*$570,074 DUDLEY*$326,474 DUNSTABLE*$126,516 DUXBURY*$399,188 EAST BRIDGEWATER*$224,529 EAST BROOKFIELD*$74,720 EAST LONGMEADOW*$447,101 EASTHAM*$196,112 EASTHAMPTON*$375,543 EASTON*$488,725 EDGARTOWN*$178,476 EGREMONT*$124,000 ERVING*$66,685 ESSEX*$106,916 EVERETT*$464,968 FAIRHAVEN*$386,425 FALL RIVER*$1,619,754 FALMOUTH*$918,332 FITCHBURG*$927,375 FLORIDA*$130,060 FOXBOROUGH*$409,839 FRAMINGHAM*$1,432,989 FRANKLIN*$605,758 FREETOWN*$281,788 GARDNER*$482,264 GEORGETOWN*$214,633 GILL*$119,623 GLOUCESTER*$529,516 GOSHEN*$87,732 GOSNOLD*$7,411 GRAFTON*$351,916 GRANBY*$217,603 GRANVILLE*$213,312 GREAT BARRINGTON*$335,211 GREENFIELD*$529,931 GROTON*$364,016 GROVELAND*$152,333 HADLEY*$274,352 HALIFAX*$173,699 HAMILTON*$194,451 HAMPDEN*$198,233 HANCOCK*$78,993 HANOVER*$351,310 HANSON*$212,380 HARDWICK*$293,096 HARVARD*$283,878 HARWICH*$488,048 HATFIELD*$205,523 HAVERHILL*$1,093,006 HAWLEY*$143,481 HEATH*$169,805 HINGHAM*$529,818 HINSDALE*$123,755 HOLBROOK*$195,801 HOLDEN*$452,221 HOLLAND*$123,030 HOLLISTON*$365,143 HOLYOKE*$840,929 HOPEDALE*$126,669 HOPKINTON*$351,443 HUBBARDSTON*$278,266 HUDSON*$445,444 HULL*$223,279 HUNTINGTON*$132,693 IPSWICH*$323,278 KINGSTON*$312,554 LAKEVILLE*$242,759 LANCASTER*$244,861 LANESBOROUGH*$173,700 LAWRENCE*$959,881 LEE*$225,030 LEICESTER*$329,089 LENOX*$226,880 LEOMINSTER*$868,303 LEVERETT*$119,851 LEXINGTON*$712,692 LEYDEN*$116,169 LINCOLN*$211,501 LITTLETON*$268,275 LONGMEADOW*$374,824 LOWELL*$1,419,023 LUDLOW*$470,811 LUNENBURG*$331,334 LYNN*$1,187,496 LYNNFIELD*$280,211 MALDEN*$748,167 MANCHESTER*$116,055 MANSFIELD*$487,322 MARBLEHEAD*$358,730 MARION*$108,373 MARLBOROUGH*$821,552 MARSHFIELD*$502,711 MASHPEE*$440,903 MATTAPOISETT*$163,559 MAYNARD*$216,541 MEDFIELD*$328,091 MEDFORD*$783,689 MEDWAY*$288,405 MELROSE*$431,627 MENDON*$175,077 MERRIMAC*$130,803 METHUEN*$859,325 MIDDLEBOROUGH*$620,772 MIDDLEFIELD*$123,975 MIDDLETON*$195,041 MILFORD*$560,815 MILLBURY*$303,820 MILLIS*$215,719 MILLVILLE*$71,980 MILTON*$477,023 MONROE*$53,519 MONSON*$371,064 MONTAGUE*$387,488 MONTEREY*$157,111 MONTGOMERY*$101,873 MOUNT WASHINGTON*$56,751 NAHANT*$74,834 NANTUCKET*$458,009 NATICK*$729,985 NEEDHAM*$698,886 NEW ASHFORD*$37,363 NEW BEDFORD*$1,707,205 NEW BRAINTREE*$162,114 NEW MARLBOROUGH*$276,513 NEW SALEM*$125,783 NEWBURY*$204,450 NEWBURYPORT*$393,672 NEWTON*$1,748,560 NORFOLK*$273,397 NORTH ADAMS*$318,164 NORTH ANDOVER*$614,970 NORTH ATTLEBOROUGH*$545,186 NORTH BROOKFIELD*$252,212 NORTH READING*$325,369 NORTHAMPTON*$813,343 NORTHBOROUGH*$356,368 NORTHBRIDGE*$314,059 NORTHFIELD*$232,558 NORTON*$367,584 NORWELL*$333,085 NORWOOD*$705,093 OAK BLUFFS*$136,986 OAKHAM*$147,568 ORANGE*$326,095 ORLEANS*$231,551 OTIS*$141,864 OXFORD*$375,999 PALMER*$398,639 PAXTON*$144,712 PEABODY*$743,159 PELHAM*$80,476 PEMBROKE*$363,335 PEPPERELL*$305,829 PERU*$108,442 PETERSHAM*$205,961 PHILLIPSTON*$150,533 PITTSFIELD*$1,115,470 PLAINFIELD*$155,154 PLAINVILLE*$198,098 PLYMOUTH*$996,448 PLYMPTON*$121,705 PRINCETON*$275,920 PROVINCETOWN*$93,896 QUINCY*$1,483,704 RANDOLPH*$544,762 RAYNHAM*$320,429 READING*$466,435 REHOBOTH*$430,136 REVERE*$569,858 RICHMOND*$135,439 ROCHESTER*$223,217 ROCKLAND*$321,131 ROCKPORT*$158,075 ROWE*$116,351 ROWLEY*$169,703 ROYALSTON*$228,787 RUSSELL*$85,396 RUTLAND*$236,804 SALEM*$665,110 SALISBURY*$165,975 SANDISFIELD*$268,836 SANDWICH*$564,448 SAUGUS*$479,782 SAVOY*$159,903 SCITUATE*$436,496 SEEKONK*$427,985 SHARON*$460,476 SHEFFIELD*$289,986 SHELBURNE*$178,758 SHERBORN*$183,277 SHIRLEY*$193,549 SHREWSBURY*$610,228 SHUTESBURY*$108,708 SOMERSET*$399,655 SOMERVILLE*$896,890 SOUTH HADLEY*$372,298 SOUTHAMPTON*$240,280 SOUTHBOROUGH*$271,622 SOUTHBRIDGE*$397,944 SOUTHWICK*$255,798 SPENCER*$394,966 SPRINGFIELD*$2,814,463 STERLING*$318,879 STOCKBRIDGE*$157,910 STONEHAM*$407,877 STOUGHTON*$606,267 STOW*$205,844 STURBRIDGE*$336,499 SUDBURY*$536,195 SUNDERLAND*$143,998 SUTTON*$326,391 SWAMPSCOTT*$238,306 SWANSEA*$441,956 TAUNTON*$991,124 TEMPLETON*$262,794 TEWKSBURY*$672,189 TISBURY*$104,350 TOLLAND*$129,143 TOPSFIELD*$213,623 TOWNSEND*$325,475 TRURO*$133,760 TYNGSBOROUGH*$263,534 TYRINGHAM*$83,090 UPTON*$233,655 UXBRIDGE*$343,954 WAKEFIELD*$515,790 WALES*$84,128 WALPOLE*$543,375 WALTHAM*$1,313,789 WARE*$344,782 WAREHAM*$510,907 WARREN*$236,891 WARWICK*$182,640 WASHINGTON*$137,200 WATERTOWN*$574,451 WAYLAND*$374,027 WEBSTER*$363,578 WELLESLEY*$669,584 WELLFLEET*$195,973 WENDELL*$159,078 WENHAM*$115,606 WEST BOYLSTON*$223,067 WEST BRIDGEWATER*$250,039 WEST BROOKFIELD*$184,702 WEST NEWBURY*$172,717 WEST SPRINGFIELD*$664,736 WEST STOCKBRIDGE*$123,828 WEST TISBURY*$59,099 WESTBOROUGH*$561,596 WESTFIELD*$886,126 WESTFORD*$579,774 WESTHAMPTON*$148,948 WESTMINSTER*$322,128 WESTON*$349,395 WESTPORT*$492,577 WESTWOOD*$398,436 WEYMOUTH*$884,467 WHATELY*$117,630 WHITMAN*$255,681 WILBRAHAM*$393,783 WILLIAMSBURG*$149,242 WILLIAMSTOWN*$245,961 WILMINGTON*$585,732 WINCHENDON*$359,171 WINCHESTER*$406,765 WINDSOR*$211,141 WINTHROP*$236,498 WOBURN*$947,775 WORCESTER*$3,153,319 WORTHINGTON*$191,969 WRENTHAM*$289,734 YARMOUTH*$677,870 TOTAL*$150,000,000 `tcol;end

SECTION 3. Section 10 of said chapter 11, as appearing in section 1 of chapter 121 of the acts of 1998, is hereby amended by striking out the second sentence and inserting in place thereof the following sentence:- Federal highway construction trust funds pledged by a trust agreement executed in accordance with section 10B, any other funds hereafter appropriated to said Federal Highway Grant Anticipation Note Trust Fund and investment earnings on any funds held or credited to the Federal Highway Grant Anticipation Note Trust Fund or to any fund or account established under a trust agreement executed in accordance with section 10B or on the proceeds of any notes issued pursuant to section 9 and secured by the Federal Highway Grant Anticipation Note Trust Fund shall be received and held by the state treasurer or his designee as the trustee of said fund and not on account of the commonwealth and, as set forth in section 10A, may be expended without further appropriation for the payment of trust agreement obligations.

SECTION 4. The first sentence of section 10A of said chapter 11, inserted by said section 1 of said chapter 121, is hereby amended by inserting after the words "investment earnings on any funds held or credited to said Federal Highway Grant Anticipation Note Trust Fund" the following words:- or to any fund or account established under a trust agreement executed in accordance with section 10B.

SECTION 5. The second sentence of the second paragraph of section 54 of said chapter 11 is hereby amended by striking out the figure "$2,100,000,000" and inserting in place thereof the following figure:- $2,550,000,000.

SECTION 6. (1) As used in this act, the following words shall have the following meanings unless the context clearly requires otherwise:

"Department", the department of highways.

"Developer", the private entity selected to design, build, maintain, and operate state highway route 3 north which private entity may be comprised of, but not limited to, a civil engineering firm, a highway construction firm, a financial services firm, a law firm and a consulting firm.

"Development Agreement", the agreement entered into between the developer and the department, pursuant to subsection (4).

"Project", the study, planning, design, construction, reconstruction, operation, and maintenance, including capital maintenance, of route 3 north in accordance with the terms of the agreement described in subsection (4).

"Route 3 north" and "facility", that portion of state highway route 3, approximately 21 miles in length, extending from and including its interchange with interstate highway route 95 in the town of Burlington north to the commonwealth's border with the state of New Hampshire including, but not limited to, its interchanges with other highways and roads, bridges and other facilities.

"Secretary", the secretary of transportation and construction or his designee.

(2) Notwithstanding the provisions of chapters 30, 30B and 149 of the General Laws or any other general or special law to the contrary, the secretary may solicit proposals from, and negotiate and authorize the department to enter into a development agreement with, a developer to undertake, as appropriate, all or a portion of the project using, in whole or in part, private sources of financing.

(3)(a) The secretary shall develop and publicly advertise a request for qualifications setting forth criteria for prequalification of developers, including minimum levels of experience, financial capability, bonding capacity and such other criteria as are deemed appropriate by the secretary. The secretary or his designee may consult with legal, financial, technical and other experts within and outside state government in the prequalification of developers. The secretary shall also consult with the secretary of administration and finance in the development of a request for qualifications and with respect to the financial capacity of the respondents to such request for qualifications before determining which respondents are qualified. The secretary shall, within 45 days after the effective date of this section, select a minimum of three developers, those which he has determined to be the most qualified, based on their abilities to finance, design, and construct the project.

Any selection made in response to a request for qualifications issued by the secretary prior to the effective date of this act is hereby authorized and ratified if the request for qualifications is in a form which is consistent with the provisions of this section.

(b) The secretary shall develop and publicly advertise a request for proposals setting forth criteria of the qualified developers to undertake the project. The secretary or his designee may consult with legal, financial, technical and other experts within and outside state government in the development of the request for proposals, the selection of a developer and the negotiation of a development agreement. The secretary shall not select a developer in accordance with the provisions of this section without the written concurrence of the secretary of administration and finance that the selected developer and its proposal have appropriate financial characteristics and provisions.

The secretary shall, within 30 days after the designation of the selected qualified developers, furnish each qualified developer, as determined in paragraph (a), with a request for proposals setting forth the minimum criteria for the project. Each such developer may then submit to the secretary, on or before the time and date specified in the request for proposals which shall be within 90 days of the issuance of the requests, a proposal in the format specified by the secretary. The secretary may waive any and all informalities in such proposals and reject any or all proposals if, in his sole discretion, such a rejection would be in the public interest. All proposals shall be reviewed in private and no proposal or any information contained therein shall be released to a third party other than as specified herein prior to execution of the development agreement in accordance with the provisions of this act, nor shall any such proposal be deemed to be a public record until such development agreement is executed.

Each proposal shall be evaluated by criteria determined by the secretary and set forth in the request for proposals including, but not limited to, the proposed cost of the project and the financial benefit to the commonwealth, the reputation, industry experience and financial capacity of the developer, the proposed design of the facility, the time schedule proposed for completion of the project, local citizen and government concerns, environmental concerns relative to the project, benefits to the traveling public, the developer's ability to ensure labor harmony during the length of the project and such other criteria as the secretary deems appropriate. The secretary may request oral presentations by such developers as he deems necessary for the purpose of understanding, clarifying and improving the terms contained in any such proposals. An oral presentation shall include a written component, including minutes of the meeting in which the presentation took place, which shall be made public after the execution of the development agreement. The secretary shall, within 60 days of the receipt of proposals from the qualified developers, select the developer which he determines best meets the selection criteria for the benefit of the commonwealth. Within five days of the selection of the developer, the secretary shall notify the joint committee on transportation of his choice. Within 15 days of that notification, the secretary and the selected developer shall make a presentation of the details of the development agreement to the joint committee on transportation. Any of the deadlines contained in this section may be extended up to 60 days, in 15-day increments, upon the provision of written notice by the secretary to the joint committee on transportation.

If the secretary selects a developer which did not submit the proposal offering the lowest overall cost, the secretary shall explain the reason for the selection in writing to the joint committee on transportation not later than five days prior to the execution of the development agreement.

(4) The secretary may enter into a binding development agreement with the selected developer, which development agreement shall:

(a) provide for the design and construction of the project;

(b) specify a design and construction schedule with project milestones and an enforceable project completion date, subject to delays beyond the control of the developer;

(c) specify the cost of the project, as an aggregate total and separated into cost for each identified project segment, with maintenance costs annualized and separated from the cost of construction;

(d) provide for a lease of the facility to the developer or a lease of the facility back to the department for a term not to exceed 30 years upon the completion and final acceptance of the project, but the developer shall retain the primary responsibility for all reconstruction, capital maintenance and operational maintenance work, if any, to be performed during the lease period. If the developer proposes that a third party perform any such work on its behalf, then the third party shall be approved in advance by the department;

(e) establish a schedule for annualized, periodic or other payments by the department to reimburse the developer's capital outlay costs for the project, including interest expense, the costs associated with operations, maintenance and administration of the facility, payments made to the department for the costs of project oversight, technical and other services and establishment of a fund to assure the adequacy of maintenance expenditures but all payments made shall be in accordance with obligations established in the development agreement;

(f) describe the procedures to be utilized in the completion of design and construction of the project;

(g) identify the remaining parcels, required for highway purposes, for the department to obtain pursuant to the authority granted to the department under chapter 81 of the General Laws;

(h) outline the responsibilities of the department and the developer in obtaining any remaining environmental permits or approvals;

(i) provide for the participation of the department and the developer in the value engineering program established in section 6 but the developer shall pay the cost of the selected value engineering expert, shall incorporate any recommendations accepted by the secretary into the project's final design and shall reduce the overall cost of the project by a corresponding amount;

(j) require that the developer secure and maintain bonding and liability insurance coverage in amounts appropriate to protect the project's viability in accordance with subsection 14;

(k) set forth the responsibilities of the department and the developer in community outreach efforts, including the planning and scheduling of the route 3 north advisory council quarterly meetings required in subsection 7;

(l) describe the method of financing for the project, including the developer's plans for issuing bonds on a tax-exempt basis;

(m) set forth the commitments of the commonwealth necessary to secure the project's financing consistent with paragraph (b) of subsection 12;

(n) set forth the guarantee of performance and security to be provided by the developer;

(o) specify the claims process to be utilized in the event of unforeseen circumstances during project design or construction and provide for the reimbursement to the developer for reasonable costs and expenses incurred in developing the design of the project and the construction cost estimate and in the financing of the project should the commonwealth, for any reason, determine to terminate the agreement;

(p) clarify the responsibilities of the department and developer in responding to hazardous materials in the project's right-of-way;

(q) designate responsibility for operation and maintenance of the facility before, during and after project construction, but the department shall be responsible for snow and ice removal at all times and shall be reimbursed for all services provided by its employees on such terms and conditions as the parties may mutually agree;

(r) establish minimum traffic flow requirements during project construction, including a requirement that at least two lanes in each direction shall be in operation during the morning and evening peak commuting hours;

(s) establish an air, surface and subsurface rights development policy for the corridor which recognizes the applicability of local zoning laws and any revenues generated from air, surface and subsurface rights development shall be divided between the developer and the department, the amount of such split being subject to negotiations but the developer shall retain not more than 50 per cent of said revenues and all remaining revenues shall be utilized to reduce the cost of the project and the department's annual payment;

(t) provide that the department's construction inspections shall be conducted by personnel employed directly and on a full-time basis by the department; and

(u) provide for the assurance of labor harmony during all phases of development, including construction, reconstruction and capital and routine maintenance and shall provide adequate remedies to address the developer's failure to maintain labor harmony which shall include, but not be limited to, assessment of liquidated damages and contract termination.

(5) The department may enter into the development agreement. If one or more of the following conditions are met, the secretary shall submit detailed project information and analysis to the joint committee on transportation, which will hold a public meeting to discuss the information provided by the secretary. The committee may call before it any party to the development agreement. The information provided by the secretary shall contain a detailed explanation for the occurrence of such condition or conditions and identifying terms and conditions for inclusion in the development agreement to address such condition or conditions:

(i) the total cost of the project, as anticipated in clause (c) of subsection 4, excluding ongoing maintenance expenses and interest payments, exceeds $200,000,000;

(ii) the selected developer plans to issue non-tax-exempt bonds;

(iii) the annual payments anticipated in clause (e) of said subsection 4 exceed $14,000,000 per year at any time during the repayment period.

(6) The developer shall be required to prepare plans and specifications for the project subject to review by an independent value engineering expert selected by the secretary. The value engineering expert shall conduct comprehensive design reviews of the plans and specifications at approximately the 10 per cent completion stage and at approximately the 35 per cent completion stage to recommend design changes that will result in lower life-cycle costs or more efficient construction and functioning. Within 30 days of receiving the value engineering expert's recommended changes, the secretary may accept or reject those recommendations. In the event that the secretary rejects, in whole or in part, the recommendations of the value engineering expert, said secretary shall submit a justification statement to the inspector general detailing his opinion that the rejected recommendations cannot reasonably be incorporated into the project design.

(7) The secretary shall establish an advisory council of the local governments adjacent to the state highway route 3 north corridor which shall consist of a representative, appointed by the executive body, from each of the towns of Bedford, Billerica, Burlington, Chelmsford, Tyngsborough and Westford and the city of Lowell. The advisory council shall receive quarterly progress updates on the project's development from the secretary and developer and shall offer comment on local concerns and considerations regarding the progress and development of the project.

(8) Agreements with the developer shall contain minority and women business enterprise or disadvantaged business enterprise goals and minority and women work force goals as specified by the secretary in accordance with state and federal law.

(9) An agreement with a developer shall require the developer's prime contractor to obtain a labor and material payment bond, in accordance with section 29 of chapter 149 of the General Laws, covering all construction, reconstruction, or maintenance, including capital maintenance, work of the project and shall require the payment of prevailing wages for labor performed on the project in accordance with sections 26 to 27H, inclusive, of said chapter 149.

(10) Notwithstanding the provisions of chapters 7, 30, and 149 of the General Laws or any other general or special law to the contrary regarding procurement practices, the developer shall, in its sole discretion and in accordance with its own procurement practices and sound business judgment, determine the qualifications and selection of its own consultants, engineers, designers, architects, lawyers, contractors, investment bankers, materials suppliers and other persons or entities employed in connection with the project. The developer shall remain subject to all applicable anti-discrimination laws including, but not limited to, chapter 151B of the General Laws.

(11)(a) The plans and specifications for the project shall be approved by the department. The completed facility shall be deemed to be a part of the state highway system for purposes of identification, permitting pursuant to the department's obligations under the provisions of section 21 of chapter 81 of the General Laws and section 61 of chapter 30 of the General Laws, enforcement of traffic laws, liability of the commonwealth, the department or the developer, and for the purposes of applicable sections of this act.

(b) The development agreement shall provide that, upon return of operation and control of the facility to the department, the facility shall be in good repair in accordance with appropriate department standards as shall be set forth by the department in writing and incorporated by reference in the development agreement prior to the commencement of the construction of the project. The department shall also set forth the guidelines and standards to which the developer shall periodically maintain the facility and shall require the developer to repair the facility if the facility is found not to be in accordance with such maintenance standards, as shall be indicated by the secretary in writing.

(c) The department may exercise, on its own behalf and on behalf of the developer, any power possessed by it to facilitate the development, construction, financing, operation and maintenance of the facility. For the purpose of facilitating the project or to assist the developer in the financing, development, construction, maintenance or operation of the facility, the development agreement may include provisions for the department to lease the facility and rights-of-way and airspace appurtenant thereto, to the developer or back from the developer or both; to exercise the power of eminent domain; to grant development rights and opportunities to the developer and third parties; to grant necessary easements and rights of access to the developer and third parties; to issue permits and other authorizations; to provide remedies in the event of default of either of the parties; to grant contractual and real property rights to the developer and third parties and to exercise any other power deemed necessary by the parties. Any person damaged in his property by the exercise of any of the powers granted by this section may recover damages under chapter 79 of the General Laws against the commonwealth with respect to said powers exercised by the department. Nothing in this act shall be construed in a manner which would allow the department or the developer the ability to override any local zoning or land use law, ordinance or regulation applicable under section 7L of chapter 81 of the General Laws.

(d) Notwithstanding the provisions of sections 40F and 40F> of chapter 7 of the General Laws or any other general or special law to the contrary, the development agreement may also include provisions authorizing the developer, or its designees, to lease to third parties, on behalf of the commonwealth, airspace and other surface and subsurface rights above, adjacent to or below the right-of-way associated or to be associated with the facility. The term of any such lease may extend beyond the term of the agreement with the developer, with the written approval of the secretary.

(12)(a) In order to facilitate project financing, the selected developer may form a special purpose entity and the secretary may enter into agreements with such entity to effectuate the purposes described in this section.

(b) Revenue bonds, interim receipts, temporary bonds, revenue refunding bonds or other types of indebtedness necessary to finance the design, construction, maintenance and operation of the facility shall not be deemed to constitute a debt of the commonwealth or any political subdivision thereof or a pledge of the faith and credit of the commonwealth or any such political subdivision. All bonds and interim receipts shall contain on the face thereof a statement to the effect that neither the commonwealth nor any political subdivision thereof shall be obligated to pay the same or the interest thereon except from revenues generated by the facility, or from other federal, state or local resources specifically made available therefor, and that neither the faith and credit nor the taxing power of the commonwealth or any political subdivision thereof is pledged to the payment of the principal of or interest on the bonds and interim receipts.

(13) At no time and under no condition shall the secretary, developer, commonwealth or department, issue, institute, implement or levy any form of toll collection on the usage of state highway route 3 north in order to generate revenues for the project or for the purpose of financing the project, for the commonwealth or for any other related or unrelated purpose.

(14)(a) While the developer has operation and control of the facility in accordance with the terms of the development agreement, the developer shall be liable to the same extent and with the same limitations as would be the commonwealth to any person sustaining bodily injury or damage to his property by reason of a defect or want of repair therein or thereupon as though the facility were a state highway operated by the commonwealth within the meaning of section 18 of chapter 81 of the General Laws, and the developer shall be liable for the death of any person caused by such defect or want of repair to the same extent and with the same limitations as would be the commonwealth in accordance with the provisions of chapter 258 of the General Laws. The commonwealth shall not be liable for injury, damage or death sustained by any person by reason of defect or want of repair therein or thereupon sustained during the operation of the facility by the developer. Any notice of such injury, damage or death required by law shall be given to the registered agent of the developer and to the secretary, but claims instituted pursuant to section 4 of said chapter 258 shall be presented to the secretary. Upon receipt by the secretary of any such notice, the secretary shall promptly notify the registered agent of the notice and shall promptly notify the person giving notice of the name and address of the registered agent.

(b) While the developer has operation and control of the facility in accordance with the terms of the development agreement, the developer shall be liable to the same extent and with the same limitations as would be the commonwealth in accordance with the provisions of chapter 258 of the General Laws, as if the facility were a state highway operated by the commonwealth. The commonwealth shall not be liable for injury, damage or death sustained by any person during the operation of the facility by the developer, nor for any injury, damage or death caused by the negligence of the developer. Any notice of such injury, damage or death required by law shall be given to the registered agent of the developer and to the secretary, but claims instituted pursuant to section 4 of said chapter 258 shall be presented to the secretary. Upon receipt by the secretary of any such notice, the secretary shall promptly notify the registered agent of the notice and shall promptly notify the person giving notice of the name and address of the registered agent.

(15) This section shall be specific to the state highway route 3 north project. Within three months of completion of construction of the project, the secretary shall file a report with the house and senate committees on ways and means, the joint committee on transportation and the clerks of the house and senate. Said report shall detail the actual costs incurred by the developer in the design and construction stages of the project and the aggregate cost expected to be incurred by the department, broken down into annual amounts for each year covered under the development agreement, including any anticipated costs for annual maintenance. If actual yearly costs differ from those contained in the report, the secretary shall submit a written explanation for the difference in his annual budget request to the house and senate committees on ways and means. The report shall also include an analysis comparing the aggregate cost with the expenses the department would have incurred under a traditional design-bid-build approach.

The secretary shall include in the report a recommendation of whether it would be beneficial for the commonwealth to utilize the construction approach authorized in this section in conjunction with other large construction projects. If the recommendation is positive, the report shall include a comprehensive list of criteria which other projects should meet in order to access this method, and a detailed list of lessons learned on this project which can be incorporated into future projects. No further projects may be undertaken utilizing the method authorized in this section unless and until the secretary has filed the report required by this section and has received legislative authorization to expand this approach to other projects.

Throughout the duration of the project, from the execution of the development agreement to the completion of the lease, the joint committee on transportation may call, at its discretion and upon 14 days' notice, a public hearing on the status of the project and may request the attendance of such witnesses as are appropriate to the subject of said hearing.

SECTION 7. Sections 1 and 5 shall take effect as of July 1, 1998.

Approved August 12, 1999.

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