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(122nd General Assembly)(Substitute House Bill Number 228)
AN ACT
To amend sections 306.35 and 306.43 of the Revised Code to authorize
regional
transit authorities to use the lease and leaseback financing
technique to
finance their facilities, to remove from the Regional Transit Authority Law a
reference to an obsolete provision of the Internal Revenue
Code of 1954, and
to declare an emergency.
Be it enacted by the General Assembly of the State of Ohio:
SECTION 1 . That sections 306.35 and 306.43 of the Revised Code be amended to
read as
follows:
Sec. 306.35. Upon the creation of a regional transit
authority as provided by section 306.32 of the Revised Code, and
upon the qualifying of its board of trustees and the election of
a president and a vice-president, the authority shall exercise in
its own name all the rights, powers, and duties vested in and
conferred upon it by sections 306.30 to 306.53 of the Revised
Code. Subject to any reservations, limitations, and
qualifications that are set forth in those
sections, the regional transit authority: (A) May sue or be sued in its corporate name; (B) May make contracts in the exercise of the rights,
powers, and duties conferred upon it; (C) May adopt and at will alter a seal and use such seal
by causing it to be impressed, affixed, reproduced, or otherwise
used, but failure to affix the seal shall not affect the validity
of any instrument; (D) May adopt, amend, and repeal bylaws for the
administration of its affairs and rules for the control of the
administration and operation of transit facilities under its
jurisdiction, and for the exercise of all of its rights of
ownership in those transit facilities; (E) May fix, alter, and collect fares, rates, and rentals
and other charges for the use of transit facilities under its
jurisdiction to be determined exclusively by it for the purpose
of providing for the payment of the expenses of the regional
transit authority, the acquisition, construction, improvement,
extension, repair, maintenance, and operation of transit
facilities under its jurisdiction, the payment of principal and
interest on its obligations, and to fulfill the terms of any
agreements made with purchasers or holders of any such
obligations, or with any person or political subdivision; (F) Shall have jurisdiction, control, possession, and
supervision of all property, rights, easements, licenses, moneys,
contracts, accounts, liens, books, records, maps, or other
property rights and interests conveyed, delivered, transferred,
or assigned to it; (G) May acquire, construct, improve, extend, repair,
lease, operate, maintain, or manage transit facilities within or
without its territorial boundaries, considered necessary to
accomplish the purposes of its organization and make charges for
the use of transit facilities; (H) May levy and collect taxes as provided in sections
306.40 and 306.49 of the Revised Code; (I) May issue bonds secured by its general credit as
provided in section 306.40 of the Revised Code; (J) May hold, encumber, control, acquire by donation, by
purchase for cash or by installment payments, by lease-purchase
agreement, by lease with option to purchase, or by condemnation,
and may construct, own, lease as lessee or lessor, use, and sell,
real and personal property, or any interest or right in real
and personal property, within or without its territorial boundaries,
for
the location or
protection of transit facilities and improvements and access
to transit facilities and improvements, the relocation of
buildings, structures, and
improvements situated on lands acquired by the regional transit
authority, or for any other necessary purpose, or for obtaining
or storing materials to be used in constructing, maintaining, and
improving transit facilities under its jurisdiction; (K) May exercise the power of eminent domain to acquire
property or any interest in property, within or without
its territorial boundaries, that is necessary or proper for the
construction or efficient operation of any transit facility or
access to any transit facility under its jurisdiction in
accordance with section
306.36 of the Revised Code; (L) May provide by agreement with any county, including
the counties within its territorial boundaries, or any municipal
corporation or any combination of counties or municipal
corporations for the making of
necessary surveys, appraisals, and examinations preliminary to
the acquisition or construction of any transit facility and the
amount of the expense for the surveys, appraisals, and
examinations to be paid by each such county or municipal corporation; (M) May provide by agreement with any county, including
the counties within its territorial boundaries, or any municipal
corporation or any combination of those counties or
municipal corporations for the acquisition,
construction, improvement, extension, maintenance, or operation
of any transit facility owned or to be owned and operated by it
or owned or to be owned and operated by any such county or
municipal corporation and the terms on which it shall be
acquired, leased, constructed, maintained, or operated, and the
amount of the cost and expense of the acquisition, lease,
construction, maintenance, or operation to be paid by each such county or
municipal corporation; (N) May issue revenue bonds for the purpose of acquiring,
replacing, improving, extending, enlarging, or constructing any
facility or permanent improvement that it is authorized to
acquire, replace, improve, extend, enlarge, or construct,
including all costs in connection with and incidental to
the acquisition, replacement, improvement, extension, enlargement, or
construction, and their financing, as
provided by section
306.37 of the Revised Code; (O) May enter into and supervise franchise agreements for
the operation of a transit system; (P) May accept the assignment of and supervise an
existing franchise agreement for the operation of a transit
system; (Q) May exercise a right to purchase a transit system in
accordance with the acquisition terms of an existing franchise
agreement; and in connection with the purchase the regional
transit authority may issue revenue bonds as provided by section
306.37 of the Revised Code or issue bonds secured by its general
credit as provided in section 306.40 of the Revised Code; (R) May apply for and accept grants or loans from the
United States, the state, or any other public body for the purpose of
providing for the development or improvement of transit
facilities, mass transportation facilities, equipment,
techniques, methods, or services, and grants or loans needed to
exercise a right to purchase a transit system pursuant to
agreement with the owner of those transit facilities, or
for providing lawful financial assistance to existing transit
systems; and may provide any consideration that may be
required in order to obtain those grants or loans from the
United
States, the state, or other public body, either of which grants or loans
may be evidenced by the issuance of revenue bonds as provided by
section 306.37 of the Revised Code or general obligation bonds as
provided by section 306.40 of the Revised Code; (S) May employ and fix the compensation of consulting
engineers, superintendents, managers, and such other engineering,
construction, accounting and financial experts, attorneys, and
other employees and agents necessary for the accomplishment of
its purposes; (T) May procure insurance against loss to it by reason of
damages to its properties resulting from fire, theft, accident,
or other casualties or by reason of its liability for any damages
to persons or property occurring in the construction or operation
of transit facilities under its jurisdiction or the conduct of
its activities; (U) May maintain funds that it considers
necessary for the efficient performance of its duties; (V) May direct its agents or employees, when properly
identified in writing, after at least five days' written notice,
to enter upon lands within or without its territorial boundaries
in order to make surveys and examinations preliminary to the
location and construction of transit facilities, without
liability to it or its agents or employees except for actual
damage done; (W) On its own motion, may request the
appropriate zoning
board, as defined in section 4563.03 of the Revised Code, to
establish and enforce zoning regulations pertaining to any
transit facility under its jurisdiction in the manner prescribed
by sections 4563.01 to 4563.21 of the Revised Code; (X) If it acquires any existing transit system,
shall assume all the employer's obligations under any existing labor
contract between the employees and management of the system. If the
board acquires, constructs, controls, or operates
any such facilities, it shall negotiate arrangements to protect the
interests of employees affected by the acquisition,
construction, control, or operation. The arrangements
shall include, but are not limited to: (1) The preservation of rights, privileges, and benefits
under existing collective bargaining agreements or otherwise, the
preservation of rights and benefits under any existing pension
plans covering prior service, and continued participation in
social security in addition to participation in the public
employees retirement system as required in Chapter 145. of the
Revised Code; (2) The continuation of collective bargaining rights; (3) The protection of individual employees against a
worsening of their positions with respect to their employment; (4) Assurances of employment to employees of those transit
systems and priority reemployment of employees terminated or laid
off; (5) Paid training or retraining programs; (6) Signed written labor agreements. The arrangements may include provisions for the
submission
of labor disputes to final and binding arbitration. (Y) May provide for and maintain security operations, including a transit
police department, subject to section 306.352 of the Revised Code. Regional
transit authority police officers shall have the power and duty to act as
peace officers within transit facilities owned, operated, or leased by
the transit authority to protect the transit authority's property and the
person and property of passengers, to preserve the peace, and to enforce all
laws of the state and ordinances and regulations of political subdivisions in
which the transit authority operates. Regional transit authority police
officers also shall have the power and duty to act as peace
officers when they render emergency assistance outside their jurisdiction to
any other peace officer who is not a regional transit authority police officer
and who has arrest authority under section 2935.03 of the Revised
Code. Regional transit authority police officers may render
emergency assistance if there is a threat of imminent physical danger to the
peace officer, a threat of physical harm to another person,
or any other serious emergency situation and if either the
peace officer
who is assisted requests emergency assistance or it appears that the peace
officer who is assisted is unable
to request emergency assistance and the circumstances observed by the regional
transit authority police officer reasonably indicate that emergency assistance
is appropriate. Before exercising powers of arrest and the other powers
and duties of a peace officer,
each regional transit authority police officer shall
take an oath and give bond to the state in a sum that the
board of trustees prescribes for the proper performance of the officer's
duties. Persons employed as regional transit authority police
officers shall complete training for the position to
which they have been appointed as required by the Ohio peace officer training
commission as authorized in section 109.77 of the
Revised
Code, or be otherwise qualified. The cost of the training
shall be provided by the regional transit authority. (Z) May procure a policy or policies insuring members of
its board of trustees against liability on account of damages or
injury to persons and property resulting from any act or omission
of a member in the member's official capacity as a member of
the board or resulting solely out of the member's membership
on the board; (AA) May enter into any agreement for the sale and
leaseback or lease and leaseback of qualified mass commuting
vehicles for federal income tax purposes under section 168(F)(8) of the
Internal Revenue Code of 1954, as amended transit facilities, which
agreement may contain all necessary covenants for the security and protection
of any lessor or the regional transit authority including, but not limited to,
indemnification of the lessor against the loss of anticipated tax
benefits arising from acts, omissions, or misrepresentations of
the regional transit authority. In connection with
that transaction, the regional transit authority may contract for
insurance and letters of credit and pay any premiums or other
charges for the insurance and letters of credit. The
fiscal officer shall not be required to furnish any certificate under section
5705.41 of the Revised Code in connection with the execution of any such
agreement. (BB) In regard to any contract entered into on or after
March 19, 1993, for the rendering of services or the supplying of materials or
for the construction, demolition, alteration, repair, or
reconstruction of transit facilities in which a bond is required
for the faithful performance of the contract, may permit the person
awarded the contract to utilize a letter of credit issued by a
bank or other financial institution in lieu of the bond; (CC) May enter into agreements with municipal corporations
located within the territorial jurisdiction of the regional transit authority
permitting regional transit authority police officers employed under
division (Y) of this section to exercise full arrest powers, as
provided in section 2935.03 of the Revised Code, for the
purpose of preserving the peace and enforcing all laws of the state and
ordinances and regulations of the municipal corporation within
the areas that may be agreed to by the regional
transit authority and the municipal corporation. Sec. 306.43. (A) The board of trustees of a regional
transit authority or any officer or employee designated by such
board may make any contract for the purchase of goods or
services, the cost of which does not exceed twenty-five thousand
dollars. When an expenditure, other than for the acquisition of
real estate, the discharge of claims, or the acquisition of goods
or services under the circumstances described in division (H) of
this section, is expected to exceed twenty-five thousand dollars,
such expenditure shall be made through full and open competition
by the use of competitive procedures. The regional transit
authority shall use the competitive procedure, as set forth in
divisions (B), (C), (D), and (E) of this section, that is most
appropriate under the circumstances of the procurement. (B) Competitive sealed bidding is the preferred method of
procurement and a regional transit authority shall use that
method if all of the following conditions exist: (1) A clear, complete and adequate description of the
goods, services, or work is available; (2) Time permits the solicitation, submission, and
evaluation of sealed bids; (3) The award will be made on the basis of price and other
price-related factors; (4) It is not necessary to conduct discussions with
responding offerors about their bids; (5) There is a reasonable expectation of receiving more
than one sealed bid. A regional transit authority shall publish a notice calling
for bids once a week for no less than two consecutive weeks in at
least one newspaper of general circulation within the territorial
boundaries of the regional transit authority. A regional transit
authority may require that a bidder for any contract other than a
construction contract provide a bid guaranty in the form,
quality, and amount considered appropriate by the regional
transit authority. The board may let the contract to the lowest
responsive and responsible bidder. Where fewer than two
responsive bids are received, a regional transit authority may
negotiate price with the sole responsive bidder or may rescind
the solicitation and procure under division (H)(2) of this
section. (C) A regional transit authority may use two-step
competitive bidding, consisting of a technical proposal and a
separate, subsequent sealed price bid from those submitting
acceptable technical proposals, if both of the following
conditions exist: (1) A clear, complete, and adequate description of the
goods, services, or work is not available, but definite criteria
exist for the evaluation of technical proposals; (2) It is necessary to conduct discussions with responding
offerors. A regional transit authority shall publish a notice calling
for technical proposals once a week for no less than two
consecutive weeks in at least one newspaper of general
circulation within the territorial boundaries of the regional
transit authority. A regional transit authority may require a
bid guaranty in the form, quality, and amount the regional
transit authority considers appropriate. The board may let the
contract to the lowest responsive and responsible bidder. Where
fewer than two responsive and responsible bids are received, a
regional transit authority may negotiate price with the sole
responsive and responsible bidder or may rescind the solicitation
and procure under division (H)(2) of this section. (D) A regional transit authority shall make a procurement
by competitive proposals if competitive sealed bidding or
two-step competitive bidding is not appropriate. A regional transit authority shall publish a notice calling
for proposals once a week for no less than two consecutive weeks
in at least one newspaper of general circulation within the
territorial boundaries of the regional transit authority. A
regional transit authority may require a proposal guaranty in the
form, quality, and amount considered appropriate by the regional
transit authority. The board may let the contract to the
proposer making the offer considered most advantageous to the
authority. Where fewer than two competent proposals are
received, a regional transit authority may negotiate price and
terms with the sole proposer or may rescind the solicitation and
procure under division (H)(2) of this section. (E)(1) A regional transit authority shall procure the
services of an architect or engineer in the manner prescribed by
the "Federal Mass Transportation Act of 1987," Public Law 100-17,
section 316, 101 Stat. 227, 232-234, 49 U.S.C.A. app. 1608 and
the services of a construction manager in the manner prescribed
by sections 9.33 to 9.332 of the Revised Code. (2) A regional transit authority may procure revenue
rolling stock in the manner prescribed by division (B), (C), or
(D) of this section. (3) All contracts for construction in excess of
twenty-five thousand dollars shall be made only after the
regional transit authority has published a notice calling for
bids once a week for two consecutive weeks in at least one
newspaper of general circulation within the territorial
boundaries of the regional transit authority. The board may
award a contract to the lowest responsive and responsible bidder.
Where only one responsive and responsible bid is received, the
regional transit authority may negotiate price with the sole
responsive bidder or may rescind the solicitation. The regional
transit authority shall award construction contracts in
accordance with sections 153.12 to 153.14 and 153.54 of the
Revised Code. Divisions (B) and (C) of this section shall not
apply to the award of contracts for construction. (F) All contracts involving expenditures in excess of
twenty-five thousand dollars shall be in writing and shall be
accompanied by or shall refer to plans and specifications for the
work to be done. The plans and specifications shall at all times
be made and considered part of the contract. For all contracts
other than construction contracts, a regional transit authority
may require performance, payment, or maintenance guaranties or
any combination of such guaranties in the form, quality, and
amount it considers appropriate. The contract shall be approved
by the board and signed on behalf of the regional transit
authority and by the contractor. (G) In making a contract, a regional transit authority may
give preference to goods produced in the United States in
accordance with the Buy America requirements in the "Surface
Transportation Assistance Act of 1982," Public Law 97-424,
section 165, 96 Stat. 2097, 23 U.S.C.A. 101 note, as amended, and
the rules adopted thereunder. The regional transit authority
also may give preference to providers of goods produced in and
services provided in labor surplus areas as defined by the United
States department of labor in 41 U.S.C.A. 401 note, Executive
Order No. 12073, August 16, 1978, 43 Fed. Reg. 36873, as amended. (H) Competitive procedures under this section are not
required in any of the following circumstances: (1) The board of trustees of a regional transit authority,
by a two-thirds affirmative vote of its members, determines that
a real and present emergency exists under any of the following
conditions, and the board enters its determination and the
reasons for it in its proceedings: (a) Affecting safety, welfare, or the ability to deliver
transportation services; (b) Arising out of an interruption of contracts essential
to the provision of daily transit services; (c) Involving actual physical damage to structures,
supplies, equipment, or property. (2) The purchase consists of goods or services, or any
combination thereof, and after reasonable inquiry the board or
any officer or employee the board designates finds that only one
source of supply is reasonably available. (3) The expenditure is for a renewal or renegotiation of a
lease or license for telecommunications or electronic data
processing equipment, services, or systems, or for the upgrade of
such equipment, services, or systems, or for the maintenance
thereof as supplied by the original source or its successors or
assigns. (4) The purchase of goods or services is made from another
political subdivision, public agency, public transit system,
regional transit authority, the state, or the federal government,
or as a third-party beneficiary under a state or federal
procurement contract, or as a participant in a department of
administrative services contract under division (B) of section
125.04 of the Revised Code. (5) The sale and leaseback or lease and leaseback of qualified mass
commuting vehicles transit facilities is made as provided in
division (AA) of section 306.35
of the Revised Code. (6) The purchase substantially involves services of a
personal, professional, highly technical, or scientific nature,
including but not limited to the services of an attorney,
physician, surveyor, appraiser, investigator, court reporter,
adjuster, advertising consultant, or licensed broker, or involves
the special skills or proprietary knowledge required for the
servicing of specialized equipment owned by the regional transit
authority. (7) Services or supplies are available from a qualified
nonprofit agency pursuant to sections 4115.31 to 4115.35 of the
Revised Code. (8) The purchase consists of the product or services of a
public utility. (9) The purchase is for the services of individuals
with handicaps to work in the authority's
commissaries or cafeterias
and those individuals are supplied by a nonprofit corporation or
association
whose purpose is to assist individuals with handicaps, whether or
not that
organization or association is funded entirely or in part by the
federal
government, or the purchase is for services provided by a nonprofit
corporation or association whose purpose is to assist individuals with
handicaps, whether or not that organization or association is funded entirely
or in part by the federal government. For purposes of division
(G)(9) of this section, "handicap"
has the same meaning as in section 4112.01 of the Revised Code. (I) A regional transit authority may enter into blanket
purchase agreements for purchases of maintenance, operating, or
repair goods or services where the item cost does not exceed five
hundred dollars and the annual expenditure does not exceed
twenty-five thousand dollars. (J) Nothing contained in this section prohibits a regional
transit authority from participating in intergovernmental
cooperative purchasing arrangements. (K) Except as otherwise provided in this chapter, a
regional transit authority shall make a sale or other disposition
of property through full and open competition. Except as
provided in division (L) of this section, all dispositions of
personal property and all grants of real property for terms
exceeding five years shall be made by public auction or
competitive procedure. (L) The competitive procedures required by division (K) of
this section are not required in any of the following
circumstances: (1) The grant is a component of a joint development
between public and private entities and is intended to enhance or
benefit public transit. (2) The grant of a limited use or of a license affecting
land is made to an owner of abutting real property. (3) The grant of a limited use is made to a public
utility. (4) The grant or disposition is to a department of the
federal or state government, to a political subdivision of the
state, or to any other governmental entity. (5) Used equipment is traded on the purchase of equipment
and the value of the used equipment is a price-related factor in
the basis for award for the purchase. (6) The value of the personal property is such that
competitive procedures are not appropriate and the property
either is sold at its fair market value or is disposed of by gift
to a nonprofit entity having the general welfare or education of
the public as one of its principal objects. (M) The board of trustees of a regional transit authority,
when making a contract funded exclusively by state or local
moneys or any combination thereof, shall make a good faith effort
to use disadvantaged business enterprise participation to the
same extent required under Section 105(f) of the "Surface
Transportation Assistance Act of 1982," Public Law 97-424, 96
Stat. 2100, and Section 106(c) of the "Surface Transportation and
Uniform Relocation Assistance Act of 1987," Public Law 100-17,
101 Stat. 145, and the rules adopted thereunder. (N) As used in this section: (1) "Goods" means all things, including specially
manufactured goods, that are movable at the time of
identification to the contract for sale other than the money in
which the price is to be paid, investment securities, and things
in action. "Goods" also includes other identified things
attached to realty as described in section 1302.03 of the Revised
Code. (2) "Services" means the furnishing of labor, time, or
effort by a contractor, not involving the delivery of goods or
reports other than goods or reports that are merely incidental to
the required performance, including but not limited to insurance,
bonding, or routine operation, routine repair, or routine
maintenance of existing structures, buildings, real property or
equipment, but does not include employment agreements, collective
bargaining agreements, or personal services. (3) "Construction" means the process of building,
altering, repairing, improving, painting, decorating, or
demolishing any structure or building, or other improvements of
any kind to any real property owned or leased by a regional
transit authority. (4) "Full and open competition" has the same meaning as in
the "Office of Federal Procurement Policy Act," Public Law
98-369, section 2731, 98 Stat. 1195 (1984), 41 U.S.C.A. 403. (5) A bidder is "responsive" if, applying the criteria of
division (A) of section 9.312 of the Revised Code, the bidder is
"responsive" as described in that section. (6) A bidder is "responsible" if, applying the criteria of
division (A) of section 9.312 of the Revised Code and of the
"Office of Federal Procurement Policy Act," Public Law 98-369,
section 2731, 98 Stat. 1195 (1984), 41 U.S.C.A. 403, the bidder
is "responsible" as described in those sections. SECTION 2 . That existing sections 306.35 and 306.43 of the Revised Code are
hereby
repealed.
SECTION 3 . This act is hereby declared to be an emergency measure necessary
for the immediate preservation of the public peace, health, and safety. The
reason for such necessity lies in the fact that the Federal Transit Authority,
because of reductions made by the Congress in the amount of federal funds
available to public transit agencies, is encouraging and providing regulatory
authority for such agencies to employ innovative financing techniques in order
to make the best possible use of the federal funds that are available. Among
these techniques is that of lease and leaseback, which cannot be utilized by
Ohio regional transit authorities under current law. However, granting the
authorities the authority to use the lease and leaseback financing technique
at the earliest possible time can save them many hundreds of thousands of
dollars, which then will become available for other transit needs such as
additional equipment and route maintenance. Therefore, this act shall go into
immediate effect.
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