Bill Text: MI SB0609 | 2009-2010 | 95th Legislature | Introduced
Bill Title: Economic development; other; regional convention facility authority act; clarify leasing authority. Amends secs. 11 & 19 of 2008 PA 554 (MCL 141.1361 & 141.1369).
Spectrum: Moderate Partisan Bill (Democrat 5-1)
Status: (Introduced - Dead) 2009-05-26 - Referred To Committee On Commerce And Tourism [SB0609 Detail]
Download: Michigan-2009-SB0609-Introduced.html
SENATE BILL No. 609
May 26, 2009, Introduced by Senators THOMAS, HUNTER, JACOBS, CHERRY, JANSEN and SWITALSKI and referred to the Committee on Commerce and Tourism.
A bill to amend 2008 PA 554, entitled
"Regional convention facility authority act,"
by amending sections 11 and 19 (MCL 141.1361 and 141.1369).
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 11. (1) Within not more than 30 days following
appointment of the members of a board, the board shall hold its
first meeting at a date and time determined by the individual
appointed under section 9(1)(a). The board members shall elect from
among the board members an individual to serve as chairperson of
the board and may elect other officers as the board considers
necessary. All officers shall be elected annually by the board. All
actions of the board under this act shall require the unanimous
consent of all serving members of the board, excluding any members
prohibited from voting on an action due to a conflict of interest
under section 15.
(2) The business of the board shall be conducted at a public
meeting of the board held in compliance with the open meetings act,
1976 PA 267, MCL 15.261 to 15.275. Public notice of the time, date,
and place of the meeting shall be given in the manner required by
the open meetings act, 1976 PA 267, MCL 15.261 to 15.275. A board
shall adopt bylaws consistent with the open meetings act, 1976 PA
267, MCL 15.261 to 15.275, governing its procedures and the holding
of meetings. After organization, a board shall adopt a schedule of
regular meetings and adopt a regular meeting date, place, and time.
A special meeting of the board may be called by the chairperson of
the board or as provided in bylaws adopted by the board. Notice of
a special meeting shall be given in the manner required by the open
meetings act, 1976 PA 267, MCL 15.261 to 15.275.
(3) A board shall keep a written or printed record of each
meeting, which record and any other document or record prepared,
owned, used, in the possession of, or retained by the authority in
the performance of an official function shall be made available to
the public in compliance with the freedom of information act, 1976
PA 442, MCL 15.231 to 15.246.
(4) A board shall provide for a system of accounts for the
authority to conform to a uniform system required by law and for
the auditing of the accounts of an authority. The board shall
obtain an annual audit of the authority by an independent certified
public accountant and report on the audit and auditing procedures
in the manner provided by sections 6 to 13 of the uniform budgeting
and accounting act, 1968 PA 2, MCL 141.426 to 141.433. The audit
also shall be in accordance with generally accepted government
auditing standards and shall satisfy federal regulations relating
to federal grant compliance audit requirements.
(5) Before the beginning of each fiscal year, a board shall
cause to be prepared a budget for the authority containing an
itemized statement of the estimated current operational expenses
and the expenses for capital outlay including funds for the
operation and development of convention facilities under the
jurisdiction of the board, including the amount necessary to pay
the principal and interest of any outstanding bonds or other
obligations of the authority maturing during the next fiscal year
or that have previously matured and are unpaid, and an estimate of
the estimated revenue of the authority from all sources for the
next fiscal year. The board shall adopt a budget as for the fiscal
year in accordance with the uniform budget and accounting act, 1968
PA 2, MCL 141.421 to 141.440a.
(6) A board shall provide for the purchase of, the contracting
for, and the providing of supplies, materials, services, insurance,
utilities, third-party financing, equipment, printing, and all
other items as needed by the authority to efficiently and
effectively meet the needs of the authority using competitive
procurement methods to secure the best value for the authority. The
board shall make all discretionary decisions concerning the
solicitation, award, amendment, cancellation, and appeal of
authority contracts. A board shall provide for the acquisition of
professional services, including, but not limited to, architectural
services, engineering services, surveying services, accounting
services, services related to the issuance of bonds, and legal
services, in accordance with a competitive, qualifications-based
selection process and procedure for the type of professional
service required by the authority. An authority is not required to
use competitive bidding when acquiring proprietary services,
equipment, or information available from a single source, such as a
software license agreement. An authority may enter into a
cooperative purchasing agreement with the federal government, this
state, or other public entities for the purchase of goods or
services necessary for the authority. An authority may enter into
lease purchases or installment purchases for periods not exceeding
the anticipated useful life of the items purchased unless otherwise
prohibited by law. In all purchases made by the authority, all
other things being equal, preference shall be given first to
products manufactured or services offered by firms based in the
authority's qualified metropolitan area, including, but not limited
to, each qualified city and qualified county in the qualified
metropolitan area, and next to firms based in this state, if
consistent with federal law. Except as otherwise provided in this
section, the authority shall utilize competitive solicitation for
all purchases authorized under this act unless 1 or more of the
following apply:
(a) Procurement of goods or services is necessary for the
imminent protection of public health or safety or to mitigate an
imminent threat to public health or safety, as determined by the
authority or its chief executive officer.
(b) Procurement of goods or services is for emergency repair
or construction caused by unforeseen circumstances when the repair
or construction is necessary to protect life or property.
(c) Procurement of goods or services is in response to a
declared state of emergency or state of disaster under the
emergency management act, 1976 PA 390, MCL 30.401 to 30.421.
(d) Procurement of goods or services is in response to a
declared state of emergency under 1945 PA 302, MCL 10.31 to 10.33.
(e) Procurement of goods or services is in response to a
declared state of energy emergency under 1982 PA 191, MCL 10.81 to
10.89.
(f) Procurement of goods or services is under a cooperative
purchasing agreement with the federal government, this state, or
more public entities for the purchase of goods and services
necessary at fair and reasonable prices using a competitive
procurement method for authority operations.
(g) The value of the procurement is less than $5,000.00, and
the board has established policies or procedures to ensure that
goods or services with a value of less than $5,000.00 are purchased
by the board at fair and reasonable prices. Procurement of goods or
services with a value of less than $5,000.00 may be negotiated with
or without using competitive bidding as authorized in a procurement
policy adopted by the board.
(7) A board may not enter into any cost plus construction
contract unless all of the following apply:
(a) The contract cost is less than $50,000.00.
(b) The contract is for emergency repair or construction
caused by unforeseen circumstances.
(c) The repair or construction is necessary to protect life or
property.
(d) The contract complies with requirements of applicable
state or federal law.
(8) The board shall adopt a procurement policy consistent with
the requirements of this act and federal and state laws relating to
procurement. The board shall adopt a policy to govern the control,
supervision, management, and oversight of each contract to which
the authority is a party. The board shall adopt procedures to
monitor the performance of each contract including, but not limited
to, a contract that exists on transfer date, to assure execution of
the contract within the budget and time periods provided under the
contract. The monitoring shall include oversight as to whether the
contract is being performed in compliance with the terms of the
contract, this act, and federal and state law procurement law. The
chief executive officer or other authorized employee of an
authority shall not sign or execute a contract until the contract
is approved by the board. A board for an authority shall establish
policies to ensure that the authority does not enter into a
procurement or employment contract with a person who has been
convicted of a criminal offense incident to the application for or
performance of a contract or subcontract with a governmental entity
in this state. A board for an authority shall establish policies to
ensure that the authority does not enter into a procurement or
employment contract with a person who has been convicted of a
criminal offense, or held liable in a civil proceeding, that
negatively reflects on the person's business integrity, based on a
finding of embezzlement, theft, forgery, bribery, falsification or
destruction of records, receiving stolen property, or violation of
state or federal antitrust statutes, or similar laws. As used in
this subsection, if a person is a business entity, person includes
affiliates, subsidiaries, officers, directors, managerial
employees, and any person who, directly or indirectly, holds a
pecuniary interest in that business entity of 20% or more.
(9) A board may employ personnel as the board considers
necessary to assist the board in performing the power, duties, and
jurisdictions of the authority, including, but not limited to,
employment of a chief executive officer as authorized under section
13.
(10) A board shall establish policies to assure that the board
and the authority shall not do either of the following:
(a) Fail or refuse to hire, recruit, or promote; demote;
discharge; or otherwise discriminate against a person with respect
to employment, compensation, or a term, condition, or privilege of
employment, or a contract with the authority because of religion,
race, color, national origin, age, sex, sexual orientation, height,
weight, marital status, partisan considerations, or a disability or
genetic information that is unrelated to the person's ability to
perform the duties of a particular job, position, or contract.
(b) Limit, segregate, or classify an employee, a contractor,
or applicant for employment or a contract in a way that deprives or
tends to deprive the employee, contractor, or applicant of an
employment opportunity or otherwise adversely affects the status of
an employee, contractor, or applicant because of religion, race,
color, national origin, age, sex, sexual orientation, height,
weight, marital status, partisan considerations, or a disability or
genetic information that is unrelated to the person's ability to
perform the duties of a particular job or position.
(11) A board shall establish policies to assure that, if the
unemployment rate in the city, village, or township in which the
convention facility is located is 25% or more greater than the
unemployment rate in this state, the board and the authority, when
hiring, shall make a good faith effort to hire residents who reside
in the city, village, or township in which the convention facility
is located.
Sec.
19. (1) Within 45 days of the effective date of this act
January 20, 2009 or the date on which a metropolitan area becomes a
qualified metropolitan area and prior to a transfer date, the
legislative body of the qualified city in which a qualified
convention facility is located may disapprove the transfer of the
qualified convention facility to the authority by adopting a
resolution disapproving the transfer. If the transfer is not
disapproved, the qualified convention facility is transferred to
the
authority on the ninetieth day after the effective date of this
act
January 20, 2009 or
the date on which a convention facility
becomes a qualified convention facility. All of the following shall
occur on a transfer date:
(a) All right, title, and interest of a local government in
and to a qualified convention facility located in a qualified
metropolitan area shall by operation of this act be conveyed and
transferred from the local government to the authority for the
qualified metropolitan area, and the authority shall receive,
succeed to, and assume the exclusive right, responsibility, and
authority to own, occupy, operate, control, develop, and use the
qualified convention facility from and after the transfer date,
including, but not limited to, all real property, buildings,
improvements, structures, easements, rights of access, and all
other privileges and appurtenances pertaining to the qualified
convention facility, subject only to those restrictions imposed by
this act.
(b) All right, title, and interest in and to the fixtures,
equipment, materials, furnishings, and other personal property of a
local government owned or controlled and used for purposes of the
qualified convention facility by the local government shall by
operation of this act be conveyed and transferred from the local
government to the authority for the qualified metropolitan area,
and the authority shall receive, succeed to, and assume the
exclusive right, responsibility, and authority to possess and
control the property from and after the transfer date.
(c) All licenses, permits, approvals, or awards of a local
government related to the ownership, occupancy, operation, control,
development, or use of a qualified convention facility by the local
government shall by operation of this act be conveyed and
transferred from the local government to the authority for the
qualified metropolitan area and be assumed by the authority.
(d) All grant agreements, grant preapplications, grant
applications, rights to receive the balance of any funds payable
under the agreements or applications, the right to receive any
amounts payable from and after the transfer date, and the benefits
of contracts or agreements of a local government related to the
ownership, occupancy, operation, control, development, or use of a
qualified convention facility by the local government shall by
operation of this act be conveyed and transferred from the local
government to the authority for the qualified metropolitan area and
be assumed by the authority.
(e) All of the duties, liabilities, responsibilities, and
obligations of a local government related to the ownership,
occupancy, operation, control, development, or use of a qualified
convention facility by the local government shall by operation of
this act be conveyed and transferred from the local government to
the authority for the qualified metropolitan area and assumed by
the authority, except for any liabilities, responsibilities, or
obligations that are contested in good faith by, or, as of the
transfer date, unknown to, the authority or as otherwise provided
in this act.
(f) An authority for a qualified metropolitan area shall
assume all of the outstanding securities of the local government
that are special limited obligations payable from and secured by a
lien on distributions received under the state convention facility
development act, 1985 PA 106, MCL 207.621 to 207.640, and were
originally issued to finance the acquisition or construction of,
development of, or improvements to the qualified convention
facility conveyed and transferred to the authority for the
qualified metropolitan area under this section, and the authority
may refund or defease the securities. If the authority refunds the
outstanding securities assumed under this subsection, that
refunding shall be considered, as a matter of law, to be necessary
to eliminate requirements of covenants applicable to the existing
outstanding securities.
(2) An authority shall assume, accept, or become liable for
lawful agreements, obligations, promises, covenants, commitments,
and other requirements of a local government relating to operating
a qualified convention facility conveyed and transferred under this
section, except as provided in subsection (4). An authority shall
perform all of the duties and obligations and shall be entitled to
all of the rights of a local government and under any agreements
expressly assumed and accepted by the authority related to the
transfer of a qualified convention facility from the local
government to the authority under this section.
(3) The local chief executive officer of a local government
from which the rights, responsibility, and authority to own,
occupy, operate, control, develop, and use a qualified convention
facility are conveyed and transferred from the local government to
an authority for a qualified metropolitan area under this section
shall execute the instruments of conveyance, assignment, and
transfer or other documents as may, in the authority's and the
officer's reasonable judgment, as necessary or appropriate to
recognize, facilitate, or accomplish the transfer of the qualified
convention facility from the local government to the authority
under this section.
(4) An authority for a qualified metropolitan area shall not
assume any unfunded obligations of a local government transferring
a qualified convention facility under this section to provide
pensions or retiree health insurance. Upon request by the
authority, the local government shall provide the authority with a
statement of the amount of the unfunded obligations, determined by
a professional actuary acceptable to the authority.
(5) All lawful actions, commitments, and proceedings of a
local government made, given, or undertaken before the transfer
date and assumed by an authority under this section are ratified,
confirmed, and validated upon assumption. All actions, commitments,
or proceedings of the local government relating to a qualified
convention facility in the process of being undertaken by, but not
yet a commitment or obligation of, the local government regarding
the qualified convention facility may, from and after the date of
assumption by the authority under this section, be undertaken and
completed by the authority in the manner and at the times provided
in this act or other applicable law and in any lawful agreements
made by the local government before the date of assumption by the
authority under this section.
(6) The exclusive right and authorization to own, occupy,
operate, control, develop, and use a qualified convention facility
transferred under this section shall include, but not be limited
to:
(a) Ownership and operational jurisdiction over all real
property of the qualified convention facility, subject to any liens
of record and legal restrictions and limitations on the use of the
property.
(b) The local government's right, title, and interest in, and
all of the local government's responsibilities arising under,
operating leases and concessions relating to a qualified convention
facility.
(7) The transfers described under this section shall include,
but need not be limited to, all of the following:
(a) All contracts with licensees, franchisees, tenants,
concessionaires, and leaseholders.
(b) All operating financial obligations secured by revenues
and fees generated from the operations of the qualified convention
facility.
(c) All cash balances and investments relating to or resulting
from operations of the qualified convention facility, all funds
held under an ordinance, resolution, or indenture related to or
securing obligations of the local government assumed by the
authority, and all of the accounts receivable or choses in action
arising from operations of the qualified convention facility. Fund
transfers under this subdivision are limited to funds received
after the transfer date and funds necessary to pay obligations
related to the operation of the qualified convention facility
accrued before the transfer date and not paid by the local
government.
(d) All office equipment, including, but not limited to,
computers, records and files, software, and software licenses
required for financial management, personnel management, accounting
and inventory systems, and general administration.
(8) The transfer of the real and personal property and
operational jurisdiction over a qualified convention facility to an
authority may not in any way impair any contracts with licensees,
franchisees, vendors, tenants, bondholders, or other parties in
privity with the local government that owned a qualified convention
facility transferred to an authority under this section, if the
contracts were not entered into or modified in violation of this
act.
(9) From and after the transfer date, a local government from
which a qualified convention facility has been transferred shall be
relieved from all further costs, responsibility, and liability
arising from, or associated with, control, operation, development,
and maintenance of the qualified convention facility. The local
government shall continue to be responsible for all costs
associated with local municipal services, including, but not
limited to, police, fire, and emergency medical services, without
any additional compensation from the authority. The authority shall
provide for the payment of compensation not exceeding
$20,000,000.00 to the qualified city for any revenue otherwise
payable to the qualified city from parking facilities operated by
the qualified city at the qualified convention facility and for
other costs incurred by the qualified city associated with the
transfer of the qualified convention facility to the authority
under this section.
(10) A local government that owns a qualified convention
facility subject to transfer under this section or that owned a
qualified convention facility transferred to an authority under
this section shall comply with all of the following, before and
after the transfer:
(a) Refrain from any action to sell, transfer, or otherwise
dispose of a qualified convention facility other than to the
authority or incur new or expanded obligations related to qualified
convention facility, without the consent of the authority.
(b) Refrain from any approval of or material modification to
any collective bargaining agreement applicable to local government
employees employed at or assigned to the qualified convention
facility or to terms of employment for employees at or assigned to
the qualified convention facility. Any approval or modification
subject to this subsection shall be null and void.
(c) Refrain from any action that, in the authority's judgment,
would impair the authority's exercise of the powers granted to the
authority under this act or that would impair the efficient
operation and management of the qualified convention facility by
the authority.
(d) Take all actions reasonably necessary to cure any defects
in title to the qualified convention facility and related property
transferred under this section, including, but not limited to,
providing documents, records, and proceedings in respect of title.
(e) At the request of an authority, grant any license,
easement, or right-of-way in connection with the qualified
convention facility to the extent the authority has not been
empowered to take these actions.
(f) Upon creation, an authority for the qualified metropolitan
area in which the local government is located and before the
transfer date may conduct operations, maintenance, and repair of
the convention facility in the ordinary and usual course of
business.
(11) Any contract, agreement, lease, sale, disposition,
transfer, or other conveyance, easement, license, right,
obligation, debt, or liability assumed, approved, entered into,
amended, or modified in violation of this section shall be voidable
as a matter of law to the extent that the authority would otherwise
assume, become party to or transferee of, or otherwise be obligated
under the contract, agreement, lease, sale, disposition, transfer,
conveyance, easement, license, right, obligation, debt, or
liability.
(12) Unless otherwise provided in this act, the local chief
executive officer of a local government that owns a qualified
convention facility subject to transfer under this section is
authorized and shall take all reasonable steps to cancel or
terminate any agreement to which the local government is a party
that relates to the qualified convention facility and meets all the
following criteria:
(a) The agreement relates to the qualified convention facility
and the authority has not expressly assumed or accepted the
agreement under subsection (2).
(b) The agreement provides for cancellation or termination.
(c) In the absence of cancellation or termination, the
authority would become a party to the agreement by succession,
assignment, operation of law, or any other involuntary means.
(13) If real property transferred from a qualified city to an
authority under this section is no longer used by the authority for
the purpose of maintaining or operating a convention facility as
determined by a vote of the board, all right, title, and interest
of the authority in the real property shall revert from the
authority to the qualified city with the consent of the qualified
city and upon payment by the qualified city to the authority of an
amount equal to the compensation paid to the qualified city under
section 19(9).
(14) If the legislative body of a qualified city in which a
qualified convention facility is located disapproves the transfer
of the qualified convention facility as provided in subsections (1)
through (13), the legislative body of the qualified city in which
the qualified convention facility is located may, with the approval
of the mayor of the qualified city, authorize the lease of the
qualified convention facility to the authority. The lease agreement
shall be for a term of 30 years with the rental fee of
$20,000,000.00 payable when the lease agreement is entered into.
The lease agreement may be renewed.
