Bill Text: MI HB5651 | 2015-2016 | 98th Legislature | Engrossed

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Bill Title: State financing and management; authorities; port authority act; revise, and allow to create certain authority under certain circumstances. Amends secs. 2, 4, 5, 8, 9, 10, 12, 13, 14, 16, 21, 24, 25 & 26 of 1978 PA 639 (MCL 120.102 et seq.); adds sec. 24a & repeals sec. 30 of 1978 PA 639 (MCL 120.130).

Spectrum: Bipartisan Bill

Status: (Introduced - Dead) 2016-10-18 - Referred To Committee On Economic Development And International Investment [HB5651 Detail]

Download: Michigan-2015-HB5651-Engrossed.html

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HB5651, As Passed House, Sep, 22, 2016

 

 

 

 

 

 

 

 

 

 

 

 

SUBSTITUTE FOR

 

HOUSE BILL NO. 5651

 

 

 

 

 

 

 

 

 

 

 

 

     A bill to amend 1978 PA 639, entitled

 

"Hertel-Law-T. Stopczynski port authority act,"

 

by amending sections 2, 4, 5, 8, 9, 10, 12, 13, 14, 16, 21, 24, 25,

 

and 26 (MCL 120.102, 120.104, 120.105, 120.108, 120.109, 120.110,

 

120.112, 120.113, 120.114, 120.116, 120.121, 120.124, 120.125, and

 

120.126), section 5 as amended by 2001 PA 244 and section 14 as

 

amended by 2002 PA 412; and to repeal acts and parts of acts.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 2. As used in this act:

 

     (a) "Authority" means a port authority created under this act

 

and may also include the area within the jurisdiction of an

 

authority.

 

     (b) "Constituent unit" means a city or county requesting the

 

incorporation of an authority.

 

     (c) "Governing body of the city" means the city council or

 

city commission of a city requesting incorporation of an authority

 

created under this act.

 

     (d) "Governing body of the county" means the county board of

 

commissioners of a county participating in an authority created

 

under this act.

 

     (e) "Port facilities" means those facilities owned by the port

 

authority such as: that include, but are not limited to: seawall

 

jetties; piers; wharves; docks; boat landings; marinas; warehouses;

 

storehouses; elevators; grain bins; cold storage plants; terminal

 

icing plants; bunkers; oil tanks; ferries; canals; locks; bridges;

 

tunnels; seaways; conveyors; modern appliances for the economical

 

handling, storage, and transportation of freight and handling of

 

passenger traffic; transfer and terminal facilities required for

 

the efficient operation and development of ports and harbors; other

 

harbor improvements; or improvements, enlargements, remodeling, or

 

extensions of any of these buildings or structures; and other real

 

or personal property necessary to enhance commercial or

 

recreational maritime activities.

 

     (f) "Project" means the acquisition, purchase, construction,

 

reconstruction, rehabilitation, remodeling, improvement,

 

enlargement, repair, condemnation, maintenance, or operation of

 

port facilities, public infrastructure, and other real and personal

 

property necessary to achieve the purpose of this act.

 

     Sec. 4. (1) A city and county, a combination of counties or a

 

combination consisting of at least 1 city and 1 county, by joint

resolution of their respective governing bodies, may request the

 

governor to authorize the incorporation of an authority. Beginning

 

January 1, 2016, a city or county, by a resolution of the governing

 

body of the city or the governing body of the county, may request

 

the governor to authorize the incorporation of an authority. The

 

governor shall consider the recommendations of the state

 

transportation department of state highways and transportation and

 

the department of commerce in authorizing the authority. The

 

initial articles of incorporation shall be approved by the governor

 

and may thereafter be amended by resolution of the authority,

 

subject to approval by the governor. After approval by the

 

governor, the articles of incorporation and any amendments to those

 

articles shall be effective upon filing with the secretary of

 

state.

 

     (2) An authority created under this act shall be a body

 

corporate and politic.

 

     (3) The exercise by an authority of the powers conferred by

 

this act shall be considered and held to be an essential

 

governmental function and a benefit to, and a legitimate public

 

purpose of the state, the authority, and the constituent units.

 

     Sec. 5. (1) Except as provided in subsection (5), an authority

 

shall consist of 5 or 7 members as follows:

 

     (a) One member shall be appointed by the governor.

 

     (b) The Except as otherwise provided in the subdivision, the

 

remaining members shall be appointed by the governing body of each

 

city and the governing body of each county that requested the

 

incorporation of the authority. The representation on, and the

number of members of, the authority shall be determined by

 

agreement among the incorporating units and included within the

 

joint resolution requesting incorporation of the authority.

 

However, beginning January 1, 2016, if a city or a county is a

 

single constituent unit requesting the incorporation of an

 

authority, then members of the authority shall be approved by the

 

governing body of the city or the governing body of the county as

 

provided in the resolution requesting incorporation of the

 

authority.

 

     (2) The members first appointed shall serve staggered terms.

 

After the first appointment, each member shall serve a term of 4

 

years, except that a person appointed to fill a vacancy shall be

 

appointed for the balance of the unexpired term. A member shall be

 

eligible for reappointment.

 

     (3) The members shall elect 1 of their membership as

 

chairperson and another as vice-chairperson, shall designate the

 

terms of office of those officers, and shall appoint a secretary-

 

treasurer who need not be a member. A majority of the members of

 

the authority shall constitute a quorum. The affirmative vote of a

 

majority of the members shall be necessary for any action taken by

 

the authority.

 

     (4) The members shall serve without compensation but shall be

 

reimbursed for all necessary travel and other expenses incurred in

 

the discharge of their duties.

 

     (5) An authority that is established in a county having a

 

population of 1,500,000 or more shall consist of 5 members as

 

follows:

     (a) One member shall be appointed by the governor.

 

     (b) Two members shall be appointed by a majority of all the

 

members of the county board of commissioners of the county. The

 

members appointed shall be nominated by the commissioners on the

 

board who do not reside within the political boundaries of a city

 

having a population of 750,000 or more.

 

     (c) Two members shall be appointed by the mayor of a city

 

having a population of 750,000 or more that is located in the

 

county.

 

     (6) To the extent not protected by the immunity conferred by

 

1964 PA 170, MCL 691.1401 to 691.1415, 691.1419, a member of the

 

authority appointed under this section who exercises the powers

 

contained in this act in good faith is immune from civil or

 

administrative liability arising from that conduct, unless the

 

conduct was gross negligence or willful and wanton misconduct.

 

     Sec. 8. (1) An authority may:

 

     (a) Adopt, amend, and repeal bylaws for the regulation of its

 

affairs and the conduct of its business.

 

     (b) Sue and be sued on the same basis as the state; and adopt

 

and register with the secretary of state an official seal and alter

 

that seal at its pleasure.

 

     (c) Maintain offices at a place or places, either within or

 

without its jurisdiction as it may determine.

 

     (d) Acquire, construct, reconstruct, rehabilitate, improve,

 

maintain, lease as lessor or as lessee, repair, or operate port

 

facilities and other property it may acquire or hold within its

 

territorial jurisdiction, including, but not limited to, the

dredging of ship channels and turning basins and the filling and

 

grading of land therefor. An authority may operate a leased

 

facility, owned by the authority, if the lessee defaults and a new

 

lease is negotiated or competitively bid.

 

     (e) Designate the location and character of the port

 

facilities which the authority may hold or own or over which it is

 

authorized to act and regulate all matters related to the location

 

and character of those port facilities.

 

     (f) Acquire, hold, and dispose of real and personal property.

 

     (g) Make directly, or through the hiring of expert

 

consultants, investigations and surveys of whatever nature,

 

including studies of business conditions, freight rates, port

 

services, physical surveys of the conditions of channels and

 

structures, and the necessity for additional port facilities for

 

the development and improvement of commerce and recreation and for

 

the more expeditious handling of that commerce and recreation, and

 

make studies, surveys, and estimates, as necessary for the

 

execution of its powers under this act.

 

     (h) Promulgate all necessary rules to fulfill the purposes of

 

this act.

 

     (i) Issue its bonds, notes, or other evidences of indebtedness

 

as provided in this act.

 

     (j) Fix and revise from time to time and charge and collect

 

rates, fees, rentals, or other charges for the use of a facility

 

owned by the authority.

 

     (k) Enter into public-private partnerships with other owners

 

of property or port facilities within the jurisdiction of the

authority.

 

     (2) Nothing in this act shall limit the property rights of any

 

person that owns property or port facilities within the

 

jurisdiction of the authority.

 

     (3) The powers granted under this act are in addition to those

 

powers granted by charter or other statute.

 

     Sec. 9. An authority may:

 

     (a) Appear in its own behalf before boards, commissions,

 

departments, or other agencies of the federal government or of any

 

state or international conferences and before committees of the

 

congress of the United States and the state legislature in all

 

matters relating to the design, establishment, construction,

 

extension, operation, improvement, repair, or maintenance of a

 

project operated, and maintained, financed, or supported by the

 

authority under this act, and appear before any federal or state

 

agencies in matters relating to transportation rates, port services

 

and charges, demurrage, switching, wharfage, towage, pilotage,

 

differentials, discriminations, labor relations, trade practices,

 

river and harbor improvements, aids to navigation, permits for

 

structures in navigable waters, and all other matters affecting the

 

physical development of, and the business interest of, the

 

authority and those it serves.

 

     (b) Make application for, receive and accept from any federal,

 

state, or municipal agency, foundation, public or private agency,

 

or individual, a grant or loan for, or in aid of, the planning,

 

construction, operation, or financing of a port facility; project;

 

and receive and accept contributions from any source of money,

property, labor, or other things of value, to be held, used, and

 

applied for the purposes for which the grant or contribution may be

 

made.

 

     (c) Appoint an executive director who shall be the chief

 

administrative executive officer of the authority, and to whom the

 

authority may delegate any of its administrative powers and

 

authorizations. During employment the executive director shall not

 

have a financial interest in port facilities or projects over which

 

the authority has jurisdiction or power or authorization to act.

 

     (d) Employ personnel as is necessary and employ the services

 

of private consultants and engineers, legal counsel, accountants,

 

construction and financial experts, and other agents for rendering

 

professional and technical assistance and advice as may be

 

necessary, and whose compensation, including the executive

 

director, shall be determined by the authority.

 

     Sec. 10. An authority may:

 

     (a) Subject to the authority of the federal government, and

 

the state and with the agreement of the constituent units, and

 

riparian rights owners, provide for the preservation of navigation

 

within its territorial jurisdiction, including the establishment by

 

regulation of lines beyond which piers, bulkheads, wharves,

 

pilings, structures, obstructions, or extensions of any character

 

may not be built, erected, constructed, or extended; provide by

 

regulation for the stationing, anchoring, and movement of vessels

 

or other watercraft; adopt rules to prevent material, refuse, or

 

matter of any kind from being thrown into, deposited, or placed

 

where it may fall, or be washed, into navigable waters under its

jurisdiction; ascertain the depth and course of the channels of

 

those navigable waters; erect and maintain, authorize the erection

 

and maintenance of, and make rules respecting wharves, bulkheads,

 

piers, and piling, and the keeping of the same in repair, to

 

prevent injury to navigation or health; regulate the use of

 

wharves, docks, piers, bulkheads, or pilings owned by it; lease or

 

rent the same, and impose and collect dockage from vessels and

 

watercraft lying at, or using the same; and collect wharfage and

 

other charges upon goods, wares, merchandise or other articles

 

landed at, shipped from, stored on, or passed over the same.

 

     (b) Make and enter into contracts and agreements necessary or

 

incidental to the performance of its duties and the execution of

 

its powers under this act.

 

     (c) Lay out, construct, acquire, operate, lease, sell, and

 

convey planned industrial districts as a part of port facilities

 

within its jurisdiction, subject to the restrictions contained in

 

this act upon operation and ownership of port facilities.

 

     (d) Do all acts and things necessary or convenient to promote

 

and increase commerce and recreation within its territorial

 

jurisdiction and carry out the powers expressly granted and any

 

powers implied or necessary for the exercise of the powers

 

expressly granted in this act.

 

     Sec. 12. (1) An authority may acquire by purchase or lease,

 

when it considers the purchase or lease expedient, lands,

 

structures, property, rights, rights of way, franchises, easements,

 

and other interests in lands as it considers necessary or

 

convenient for the construction or operation of a project, upon

terms and at a price as considered reasonable and agreed upon

 

between the authority and the owner thereof.of that property.

 

     (2) An Except as otherwise provided in this subsection and in

 

subsection (4), an authority may, subject to the uniform

 

condemnation procedures act, 1980 PA 87, MCL 213.51 to 213.75,

 

acquire by condemnation lands, property rights, rights of way,

 

franchises, easements, and other property, or parts thereof of

 

property or rights therein, of property, of a person, partnership,

 

association, or corporation considered by the authority to be

 

necessary for the construction or efficient operation of a project.

 

However, a facility currently operated as a port facility by a

 

terminal operator or a facility owned or operated by and for the

 

exclusive use of the owner or operator and a facility owned or

 

operated by a common carrier or public utility shall be exempt from

 

this subsection. The condemnation shall be made in the manner

 

provided by Act No. 295 of the Public Acts of 1966, as amended,

 

being sections 213.361 to 213.391 of the Michigan Compiled Laws,

 

except where that procedure may be inconsistent with this act.

 

     (3) An authority may sell or remove the buildings or other

 

structures upon lands taken by the authority, and may sell or lease

 

lands or rights or interest in lands or other property taken or

 

purchased for the purposes of this act.

 

     (4) A port authority established on or after January 1, 2016

 

shall not condemn property under this act.

 

     Sec. 13. (1) An authority and 1 or more constituent units may

 

enter into a contract or contracts for the acquisition,

 

improvement, enlargement, or extension of port facilities and for

the payment of the cost thereof of those improvements by the

 

contracting constituent units, with interest, over a period of not

 

more than 40 years.

 

     (2) Each contracting constituent unit shall pledge its full

 

faith and credit for the payment of its obligations under the

 

contract. If the constituent unit has taxing power, each year it

 

shall may levy a tax upon all real and personal property within the

 

constituent unit, which may be imposed without limitation as to

 

rate or amount, to the extent necessary for the prompt payment of

 

that part of the contract obligations as shall fall due before the

 

following year's tax collection. The tax shall may be in addition

 

to any tax which the contracting constituent unit may otherwise be

 

authorized to levy and may be imposed without limitation as to rate

 

or amount, but shall not be in excess of the rate or amount

 

necessary to pay the contract obligation. If any contracting

 

constituent unit at the time of its annual tax levy has on hand in

 

cash any amount pledged to the payment of the current obligations

 

for which the tax levy is to be made, then the annual tax levy may

 

be reduced by that amount. For the purpose of obtaining the credit,

 

funds may be raised by a contracting constituent unit in 1 or more

 

of the following methods:

 

     (a) By service charge to users of the facilities owned by the

 

port authority.

 

     (b) By setting aside state collected funds disbursed to the

 

contracting constituent unit.

 

     (c) By special assessment upon lands benefited.

 

     (d) By setting aside any other available money.

     (3) A contracting constituent unit may agree to raise all or

 

any part of its contract obligation by 1 or more of the methods

 

enumerated in subsection (2) which may be available. The various

 

powers granted in this act to a constituent unit shall be exercised

 

by its governing body.

 

     (4) If a constituent unit, other than a county, operating

 

under this act elects to raise money to pay all or a portion of its

 

share of the cost of a project by assessing the costs upon

 

benefited lands, its governing body shall so determine by

 

resolution and fix the district therefor. The governing body shall

 

then cause a special assessment roll to be prepared and thereafter

 

the proceedings in respect to the special assessment roll and the

 

making and collection of the special assessments on the roll, shall

 

be in accordance with the provisions of the statute or charter

 

governing special assessments in the constituent unit, except that

 

the total assessment may be divided into any number of installments

 

not exceeding 30, and any person assessed shall have the right at

 

the hearing upon the special assessment roll to object to the

 

special assessment district previously established.

 

     Sec. 14. (1) An authority may provide by resolution for the

 

issuance of revenue bonds of the authority for the purpose of

 

providing funds for paying the cost of port facilities, projects,

 

or for paying the cost of an extension, enlargement, or improvement

 

of a project then under the control of the authority. The bonds

 

issued under this section shall mature at a time or times, not

 

exceeding 40 years after their date of issuance, as the authority

 

may provide.

     (2) Revenue bonds issued under this section are subject to the

 

revenue bond act of 1933, 1933 PA 94, MCL 141.101 to 141.140.

 

     (3) Revenue bonds issued pursuant to this section shall not be

 

considered to constitute a debt of this state, a political

 

subdivision of this state, the authority, or any constituent unit,

 

or a pledge of the faith and credit of this state or a political

 

subdivision of this state or of the authority or any constituent

 

unit, but shall be payable solely from the revenues or income to be

 

derived from the projects. The revenue bonds shall contain on their

 

face a statement to the effect that the bonds and attached coupons

 

are payable solely from revenues and are not a general obligation

 

of this state, a political subdivision of this state, the

 

authority, or a constituent unit, and neither the faith and credit

 

nor the taxing power of this state, a political subdivision of this

 

state, the authority, or a constituent unit, is pledged to the

 

payment of the principal of or the interest on the bonds.

 

     Sec. 16. Revenue bonds issued pursuant to this act shall be

 

secured by a trust agreement by and between the authority and a

 

corporate trustee, which may be any trust company or bank having

 

the powers of a trust company, within or without the state. The

 

trust agreement may pledge or assign the rentals and other revenues

 

of the authority, but shall not convey or mortgage part or all of a

 

project. The trust agreement shall contain provisions for

 

protecting and enforcing the rights and remedies of the bondholders

 

as may be reasonable and proper and not in violation of law,

 

including convenants setting forth the duties of the authority in

 

relation to the acquisition or construction of a project and the

extension, enlargement, improvement, maintenance, operation,

 

repair, and insurance of a project and the custody, safeguarding,

 

and application of all money and may contain provisions for the

 

employment of consulting engineers and other professionals in

 

connection with the construction and operation of a project. The

 

trust agreement shall set forth the rights and remedies of the

 

bondholders and of the trustee and may restrict the individual

 

right of action by the bondholders and may contain any other

 

provisions the authority may consider reasonable and proper for the

 

security of the bondholders.

 

     Sec. 21. (1) The governing bodies of constituent units may, by

 

majority vote, and with or without consideration, transfer or cause

 

to be transferred to the authority or may place in its possession

 

and control, by lease, or other contract or agreement, either for a

 

limited period or in fee, any dock, waterfront, or riparian

 

property owned or controlled by a constituent unit.

 

     (2) Subsection (1) does not apply to an owner of private

 

property that enters into a public-private partnership with an

 

authority unless the public-private partnership agreement

 

specifically provides for that transfer of possession or control of

 

property or rights in property.

 

     Sec. 24. (1) The authority shall submit in writing a detailed

 

estimate of the budget required for the business and conduct of an

 

authority's affairs, initially, for a 2-year period, and annually

 

thereafter to the governing bodies of its constituent units , the

 

department of commerce, and the state transportation department of

 

state highways and transportation for approval. The state shall

provide 50% of the operating budget of the any authority created

 

before January 1, 2016, to which shall be included in the state

 

transportation department of state highways and transportation

 

budget which shall be subject to legislative approval. Fifty

 

percent of the operating budget of an authority in which not more

 

than 1 county and not more than 1 city participate shall be funded

 

equally by the participating county and city.

 

     (2) A city or county creating or participating in an authority

 

may appropriate for the use of the authority, and include in its

 

levy for general fund purposes, an amount considered proper.

 

However, the total amount permitted by law to be levied by a city

 

or county for general fund purposes shall not be considered

 

increased by this section.

 

     (3) As used in this section, "operating budget" means solely

 

operation and maintenance expenses of an authority not included in

 

the cost of a specific project, and interest on notes, but excludes

 

amounts for debt service on bonds and amounts for acquisition,

 

construction, enlargement, improvement, or extension of port

 

facilities.

 

     Sec. 25. If at the end of a fiscal year a surplus of

 

unencumbered funds remains after providing for the operating

 

expenses of an authority, the authority may pay that surplus into

 

the general funds of the state and of its constituent units in the

 

same proportion which the appropriations made by each to the

 

authority bear to each other.funds shall not lapse back to this

 

state or its constituent units but shall be carried forward for the

 

next fiscal year of the authority.

     Sec. 26. For the purpose of making surveys, soundings,

 

drillings, examinations, and investigations as it considers

 

necessary or convenient for the purposes of this act, an authority

 

and its authorized agents and employees may enter upon the lands,

 

waters, and premises in the authority, subject to permission of the

 

property owner, and that entry shall not be considered a trespass;

 

nor shall an entry for these purposes be considered an entry under

 

any condemnation proceedings which may be then pending. The

 

authority shall make reimbursement for actual damages resulting to

 

the lands, waters, or premises as a result of these activities.

 

     Enacting section 1. Section 30 of the Hertel-Law-T.

 

Stopczynski port authority act, 1978 PA 639, MCL 120.130, is

 

repealed.