HB0321113th GA (Historical)Introduced

Amends TCA Title 4, Chapter 29, Part 2; Section 12-2-112; Title 54 and Title 55.

ON MARCH 20, 2023, THE SENATE ADOPTED AMENDMENT #2 AND PASSED SENATE BILL 273, AS AMENDED. AMENDMENT #2 rewrites this bill to establish the "Transportation Modernization Act of 2023," makes numerous changes to existing law governing "design-build contracts," and adds "performance-based asset maintenance contracts" to authorize the Tennessee department of transportation to solicit proposals and award contracts. DESIGN-BUILD AND PERFORMANCE-BASED ASSET MAINTENANCE CONTRACTS Under present law, selection criteria for a design-build contract must include the cost of the project and may include design-build firm qualifications, time of completion, innovation, design and construction quality, design innovation, or other technical or quality related criteria, as determined by the department. The department is authorized to award a stipulated fee to design-build firms that submit responsive proposals but are not awarded the design-build contract. The department must not be required to award a stipulated fee, but if it elects to award the fee, the amount of the stipend and the terms under which stipends are to be paid must be stated in the request for proposals. The department's authority to use design-build contracting procedures as provided in this section is subject to the following limitations: (1) The department may initiate up to 15 design-build contracts in any one fiscal year, if the contract has a total estimated contract amount of less than $1 million; (2) The department may not initiate more than five design-build contracts in any one fiscal year, if the contract has a total estimated contract amount in excess $1 million; and (3) If the proposed design-build contract has a total estimated contract amount in excess of $70 million, the department must specifically identify the project as a proposed design-build project in the transportation improvement program submitted annually to the general assembly in support of the commissioner's annual funding recommendations. The department is required to prepare a report on the effectiveness of design-build contracts and submit it to the chairs of the transportation and safety committee of the senate and transportation committee of the house of representatives upon the completion of three design-build contracts that have a total contract amount in excess of $1 million. The department may establish agency policy, or the department may promulgate rules in furtherance of these provisions. This amendment authorizes the department to award performance-based asset maintenance contracts in addition to design-build contracts. A performance-based asset maintenance contract is defined as an agreement, typically long-term, that provides for managing and performing the inspection and reconstruction, repair, or maintenance of multiple highway facility components for specific roadway corridors or within a geographic area, where the contract sets specific performance standards, rather than prescriptive work tasks and deadlines, and may include incentive or disincentive provisions to promote achievement of the desired outcomes. Such contracts may also include third-party damage repair and claim management services, and may also provide for design, right-of-way acquisition, regulatory permit review and approvals, or utility relocation activities. Types of projects not suited for performance-based asset maintenance contracts include, but are not limited to, resurfacing and bridge repair projects. This amendment deletes the limitations to the department's authority to use design-build contracting procedures, and instead requires that prior to executing a design-built contract, the commissioner must send written notice to the chair of the transportation and safety committee of the senate and the chair of the transportation committee of the house of representatives. This amendment deletes the requirement that the department prepare a report on the effectiveness of design-build contracts upon the completion of three design-build contracts that have a total contract amount of more than $1,000,000. This amendment requires instead that if a proposed design-build contract has a total estimated contract amount in excess of $100,000,000, then the department must specifically identify the project as a design-build project in the transportation improvement program submitted annually to the general assembly in support of the commissioner's annual funding recommendations. USE OF CONSTRUCTION MANAGER/GENERAL CONTRACTOR AND PROGRESSIVE DESIGN-BUILD SERVICES Under present law, the department of transportation is authorized to use the project delivery method of construction manager/general contractor services (CM/GC). This method allows the department to engage a construction manager during the design process to provide input on the design. During the design phase, the construction manager provides advice, including, but not limited to, constructability review, scheduling, pricing, and phasing to assist the department in designing a more efficient and well-designed project. The construction manager/general contractor may subsequently construct the project if the department and the CM/GC reach agreement on a guaranteed maximum price for construction. The department will select CM/GC projects based upon generally accepted industry criteria that include factors such as fostering innovation, mitigating risk, improving design quality, improving cost control, and optimizing construction schedules. Projects suited for the CM/GC process include instances where the department needs feedback during the design phase due to complex components that require innovation. Other projects that are suited for CM/GC are projects that have public involvement, third-party considerations such as acquisition of right-of-way or utility relocation issues, or other factors that impact the overall schedule. Projects not suited for the CM/GC process include routine maintenance and resurfacing projects or other construction projects that present a low level of technical complexity, a low level of risk management, and simple traffic phasing, and that do not have any compelling need for project acceleration. Before using the CM/GC method of project delivery, the commissioner must send written notice to the chair of the transportation and safety committee of the senate and the chair of the transportation committee of the house of representatives. The written notice must identify the project and the reasons for deciding to use the CM/GC method. This amendment further authorizes the department to use the progressive design-build (PDB) method as a delivery method for procuring transportation project services. Progressive design-build method is defined as a transportation project delivery method in which the department procures a design-builder to provide pre-construction services and may subsequently complete the final design and construct the project, or part of the project, if the department and the design-builder reach agreement on a guaranteed maximum price. This amendment deletes the requirement that before using the CM/GC method the commissioner must send written notice to the chair of the transportation and safety committee of the senate and the chair of the transportation committee of the house of representatives. Under present law, the department's authority to use the CM/GC method is subject to the following limitations: (1) If a proposed CM/GC contract has a total estimated contract amount in excess of $70 million, then the department must specifically identify the project as a proposed CM/GC project in the transportation improvement program submitted annually to the general assembly in support of the commissioner's annual funding recommendations; and (2) The cumulative cost of the CM/GC projects awarded in any single fiscal year must not exceed 25 percent of the total amount of construction contract awards made in the previous fiscal year, except as the general assembly may otherwise approve in accordance with the annual appropriations act. This amendment deletes these provisions, instead requiring that prior to executing a contract, the commissioner must send written notice to the chair of the transportation and safety committee of the senate and of the chair of the transportation committee of the house of representatives. If a proposed CM/GC or PDB contract has a total estimated contract amount in excess of $100 million, the department must identify the project as a CM/GC or PDB project in the transportation improvement program submitted annually to the general assembly in support of the commissioner's annual funding recommendations. Under present law, if the commissioner determines that the CM/GC method of procurement is appropriate for the project, the commission must establish a multi-phase process to select the CM/GC that is the most responsive and responsible proposer. Phase 1 of the process is the appointment of the selection committee. Phase 2 is the development and issuance of the request for proposals. Phase 3 is the CM/GC "Selection-Design Phase." Phase 4 is the "CM/GC Selection-Construction phase. The selection committee, for Phase 1, must have eight members. The commissioner must appoint five department employees to the selection committee based on their qualifications and experience, including at least one employee who is a licensed professional engineer in this state. The commissioner must also appoint three members who are not employees of the department, all of whom are residents of this state, with one member appointed from and residing in each grand division of the state. At least two of these three must have a minimum of ten years of construction or highway engineering design experience, and at least one of these two members must have a valid professional engineering license. The other one of these three members must have either a minimum of ten years of construction or highway engineering design experience or a minimum of five years of employment experience in a banking, finance, accounting, surety, or insurance position. This amendment renames Phase 3 to the evaluation and selection phase. This amendment also adds "PDB" after any reference to "CM/GC" in the four phases. This amendment also deletes the requirements for the selection committee under Phase 1. Instead, this amendment requires that the selection committee consists of five members to be appointed by the commissioner as follows: (1) Three department employees, including at least one employee who is a licensed professional engineer in this state; and (2) Two members who are not employees of the department, each of whom must be a resident of this state. At least one of the members must have a minimum of ten years of construction or highway engineering design experience, and at least one of the members must be a licensed professional engineer in this state. Under present law, Phase 3 requires that upon completion of the evaluation process, each member of the selection committee must independently review and score the proposals. Each member must score the proposals pursuant to the scoring matrix that the department provides in the RFP and based on the RFP's evaluation criteria. The scores will be tallied and averaged according to the procedure established in the RFP; provided, however, that the scores of the two selection committee members giving the highest and lowest scores on a proposal must be excluded when computing the average score for each proposal. Upon completion of the scoring, the proposals will be ranked in order of the highest aggregate score to the lowest aggregate score. The proposer whose proposal receives the highest aggregate score will be considered the best-evaluated proposer. The proposals must be submitted in rank order to the commissioner. The commissioner may either accept the selection committee's recommendation of the best-evaluated proposer, or the commissioner may reject all proposals and proceed with construction of the project through any lawful method for procuring a construction services contract. The department must send all proposers a written notice of award to the best-evaluated proposer, or a written notice that all proposals have been rejected. If the department issues a written notice of award, the notice must include a copy of the scores from each member of the selection committee for each RFP proposal. This amendment deletes the present law requirements for scoring and ranking the proposals after completion of the evaluation process under Phase 3. Instead, this amendment requires that upon completion of the evaluation process, each member of the selection committee must independently review and score the proposals. Each member must score the proposals pursuant to the scoring matrix that the department provides in the RFP and based on the RFP's evaluation criteria. The scores must be tallied and averaged according to the procedure established in the RFP. Upon completion of the scoring, the proposals must be ranked in order of the highest aggregate score to the lowest aggregate score. The proposer whose proposal receives the highest aggregate score must be identified as a first-tier proposer. In addition, another proposer whose proposal receives an aggregate score within five percent of the proposal with the highest aggregate score, where five percent is measured as a percentage of the highest aggregate score, must also be identified as a first-tier proposer. The proposals of the first-tier proposers must be submitted in alphabetical order to the commissioner without an evaluation ranking. The commissioner may select a first-tier proposer, or the commissioner may reject all proposals and proceed with construction of the project through a lawful method for procuring a construction services contract. The department must send all proposers a written notice of award to the selected proposer, or a written notice that all proposals have been rejected. If the department issues a written notice of award, then the notice must include a copy of the scores from each member of the selection committee for each RFP proposal. Under present law, Phase 4 requires that once the design has been completed, or has been sufficiently developed to allow the CM/GC to prepare a proposed guaranteed maximum price for the construction of the project, or part of the project, the department must conduct the following steps before proceeding with any construction on the project: (1) Prepare and compile the contract plans, specifications, special provisions, and other requirements which will comprise the contract for construction of the project; (2) Prepare a detailed construction cost estimate to evaluate the appropriate price for construction of the project as designed; and (3) If directed by the commissioner, have an independent third-party estimator prepare a detailed construction cost estimate to confirm the appropriate price for construction of the project as designed. The department's detailed construction cost estimate, and any construction cost estimate prepared by an independent third-party estimator, must not be disclosed to the CM/GC, and must remain confidential and not subject to public disclosure until after award of the contract for construction of the project. The contract must require the CM/GC to self-perform a portion of the construction work comprising at least 30 percent of the total cost for construction, excluding specialty items. The cost for pre-construction services must not be considered part of the 30 percent but may be considered a specialty item. Based on the contract plans, specifications, special provisions, and other contract terms and conditions compiled by the department, the CM/GC must prepare a guaranteed maximum price (GMP), including any authorized contingency, for construction of the project. When completed, the CM/GC's proposed GMP must be submitted to the department for review. The CM/GC's proposed GMP must otherwise remain confidential and not subject to public disclosure until after award of the contract for construction of the project. The department is required to compare the CM/GC's proposed GMP with its own confidential construction estimate, and with any construction estimate prepared by an independent third-party estimator. If the GMP does not exceed the department's estimate, or the independent third-party estimate, by more than 10 percent. the commissioner may, but is not required to, award the contract for construction of the project to the CM/GC. If the commissioner rejects the proposed GMP, the department may continue to conduct contract discussions with the CM/GC to develop an acceptable GMP for the project as designed. Alternatively, the department may direct the CM/GC to provide additional pre-construction services as needed to assist in the further development of contract plans, terms, or specifications for the purpose of repeating the Phase 4 process steps. If the CM/GC and the commissioner are unable to reach agreement on the GMP, the commissioner may proceed with construction of the project through the low bid procurement process. This amendment adds to what occurs if an agreement on the GMP cannot be met, requiring that if an agreement on the GMP is unable to be reached for a PDB, then the PDB must relinquish and assign ownership of its design work product to the department, the department must take ownership of an assume liability for the design work product, and the commissioner may: (1) Employ the PDB's design consultant or another design consultant to complete the final design and proceed with construction of the project through the low bid procurement process; or (2) Use the PDB's design consultant's work product, or a part of it, to proceed with construction of the project through a design-build procurement process and, if another design consultant or design-builder completes the final design, the other design consultant to design-builder must assume responsibility for the final design. TENNESSEE MODERNIZATION ACT FUNDING AND REPORTING This amendment establishes a fund to be known as the "transportation modernization fund" that is a segregated account within the state treasury. Subject to appropriation in the general appropriations act, the fund is to be composed of: (1) A sum of $3 billion to be divided into sums of $750 million for projects within each region of the department; (2) A sum of $300 million to be distributed to local governments as grants, as determined by the commissioner, provided, that a local government must not use grants distributed from the sum to supplant other state or local moneys appropriated or allotted for building, maintaining, or improving county roads or bridges; (3) Other revenues or moneys that the general assembly may appropriate to the fund; and (4) Other moneys received by the department for the purposes of the fund that are not otherwise allocated to the department by law. This amendment requires that the fund be administered by the department of transportation and be kept separate and apart from all other funds, including the state highway fund. Amounts remaining in the fund at the end of each fiscal year do not revert to the general fund. This amendment authorizes that the fund can be used for the following purposes: (1) To fund strategic transportation initiatives, including, but not limited to, congestion mitigation, rural interstate widening, and the accelerated delivery of strategic transportation improvements over and above the transportation improvements program generally supported by the state highway fund; (2) To respond to a transportation system failure, an imminent threat of a failure, or other emergency, which use may be eligible for reimbursement from the federal government; and (3) Another purpose for which the state highway fund may be lawfully used. This amendment requires that prior to January 1, 2024, and prior to each January 1 after, the department of transportation must submit a report to the speakers of the senate and the house of representatives, the chair of the transportation and safety committee of the senate, and the chair of the transportation committee of the house of representatives, on the status of projects funded by the transportation modernization fund. The report must include for each project: (1) The date on which engineering activities began, or are anticipated to begin, if known; (2) The date on which right-of-way acquisition activities began, or are anticipated to begin, if known; (3) The date on which construction activities began, or are anticipated to begin, if known; and (4) The date on which construction was completed, as applicable. REPLACING TOLLWAY ACT WITH USER FEE This amendment replaces the "Tennessee Tollway Act," which authorizes tolling as an additional and alternative method for funding or financing the development and operation of highways and appurtenant facilities or other transportation-related facilities. Instead, this amendment authorizes user fees as an additional and alternative method for funding or financing the development and operation of highways and appurtenant facilities or other transportation-related facilities. The operation of user fee facilities is limited to new facilities opened and to existing facilities where one or more new vehicle lanes is added on the facility, on or after July 1, 2023. To further effectuate this change, this amendment deletes "state tollway fund," wherever it may appear, and replaces it with "state user fund"; deletes "toll revenues," wherever it may appear, and replaces it with "user fee revenues"; deletes "tollway projects and toll facility projects" and replaces it with "user fee facility projects"; and deletes "tollway or toll facility," wherever it may appear, and replaces it with "user fee facilities." DEVELOPMENT AND OPERATION OF USER FEE FACILITY PROJECTS This amendment authorizes the department to develop user fee facility projects and operate such user fee facilities. The department is further authorized to expend funds from the state user fee fund, the transportation modernization fund, and other funds, grants, or loans received from or made available by the federal government or another government agency that may be lawfully applied to a user fee facility project. This amendment requires that the development of a user fee facility project must be in accordance with the department's long-range statewide transportation plan. The development of a project must consider the alternatives to the project; the economic, social, and environmental effects of the user fee facility project; and the findings of the environmental evaluation process and public comments, including comments from a metropolitan planning organization or rural planning organization, or both, in which the project is located, before developing final construction plans for the user fee facility. The department must hold the public meetings at a convenient location during the environmental evaluation of the project and prior to plans for the user fee facility project being finally adopted. If the proposed project involves federal aid funding or constitutes a major federal action, then the department's environmental evaluation process is subject, as applicable, to the federal National Environmental Policy Act of 1969. If the proposed project does not involve federal aid funding and does not otherwise constitute a major federal action, then it is subject to environmental evaluation and documentation in accordance with such policies and procedures as the department may establish. This amendment requires that to establish a new user fee facility or to add a user fee facility on an existing facility, the department must submit a proposal to the board. The proposal must include plans, feasibility analyses, and other such information as may be available to describe the proposed project and the need for such project, including: (1) Projected traffic on the user fee facility; (2) The anticipated amount of the user fee to be charged, or the method for setting variable user fees; (3) Projected user fee revenue; and (4) If applicable, the proposed use of a franchise agreement, concession agreement, or a combination of those agreements, to design, construct, finance, operate, or maintain the user fee facility. Further development of the user fee facility project must not occur until it has been approved by the board, and, if applicable, the general assembly. Prior to the board approving the proposal, the board must provide written notice of the proposed user fee facility project to the speakers of the senate and the house of representatives, the chairs of the finance, ways and means committees of the senate and the house of representatives, the chair of the transportation and safety committee of the senate, and the chair of the transportation committee of the house of representatives. If any state agency proposes to assist in funding the user fee facility project with state or federal-aid funds, then the project is subject to the approval of the general assembly pursuant to the express provisions of the general appropriations act in which the funds must be specifically appropriated by reference to the project. With board approval, the department may designate one or more lanes of a highway, or portion of a highway, within the state as a user fee facility; provided, however, that such designation must not reduce the existing number of general purpose lanes and lanes available for use without payment of a user fee. In making such designations, the department must specify the high occupancy requirement or other conditions for use of the lanes, which may include restricting vehicle types and implementing access controls. New transportation facilities constructed on or after July 1, 2023, are required to include at least one lane for use without payment of a user fee, and at least one lane for use without payment of the user fee must be operational in order to assess a user fee on any use fee lane within the transportation facility. The department is authorized, with board approval, to set user fees or establish the method for setting variable user fees for the use of managed lanes, subject to resolutions or indentures authorizing bonds. Upon or prior to the issuance of any bonds, and until such time as the bonds are no longer outstanding under the resolution or indenture providing for the issuance of the bonds, the department must collect, or cause to be collected, such user fees and must revise the user fees from time to time whenever necessary, to produce revenue, together with other moneys that may be available, sufficient to: (1) Provide for all costs of the development and operation of the user fee facility project, including reasonable reserves; and (2) Pay when due all bonds and interest on the bonds, obligations under hedging agreements and ancillary agreements, and other indebtedness incurred by the state for the payment of which the user fees have been pledged, charged, or otherwise encumbered, and interest thereon, including reasonable reserves. A user fee, allowable increases, or the method for setting variable user fees on managed lanes, imposed or collected on a user fee facility on a state highway that is the subject of a user fee development agreement must be set in the user fee facility development agreement. The board is required to obtain further approval by the board to later modify the user fee conditions set forth in the user fee facility development agreement. The department must then specifically identify a proposed user fee facility or user fee facility project in the transportation improvement program furnished to the general assembly in support of the commissioner's annual funding recommendations. The department is required, by July 1, 2024, and by every July 1 after, to submit a report to the chairs of the finance, ways, and means committees of the house of representatives and the senate and the chairs of the transportation and safety committee of the senate and transportation committee of the house of representatives on the activities of the department involving any of the above. DEPARTMENT CONTRACTING AUTHORITY This amendment authorizes the department to enter into user fee facility development agreements with private entities, the federal government, or other government agencies for the purpose of developing or operating a user fee facility, or any part of, including, but not limited to: (1) Contracts with private entities using a project delivery method available to the department by law, pursuant to which all or part of the design, right-of-way acquisition, relocation of utilities, and construction of a user fee facility is accomplished by a private entity or entities on behalf of the department; (2) Service agreements for the operation, or the operation and maintenance, of a user fee facility, or appurtenant facility, which may be procured on the basis of competitive sealed bids or the competitive selection of proposals, including the evaluation of qualifications and cost; (3) Franchise agreements, concession agreements, or a combination of, in accordance with the following conditions: (A) The department may procure such agreements in a manner consistent with law, except, that the department may, but is not required to, accept or evaluate unsolicited proposals for projects; (B) The confidentiality provisions provided by this amendment apply to both solicited and unsolicited proposals received by the department for such agreements; provided, however, that a proposer submitting an unsolicited proposal must include an executive summary covering the major elements of the proposal and must exclude information from the executive summary that the proposer intends to be kept confidential as proprietary information, as the executive summary is a public record under, that may be used to solicit competing proposals; and (4) Agreements with the federal government or other governmental agencies for the purpose of undertaking all or part of a user fee facility project. This amendment prohibits a contract or agreement being entered into with a person or entity appearing on a sanctions list published by the United States department of the treasury, office of foreign assets control. This amendment authorizes a user facility development agreement entered into by the department and a private entity to allow the private entity to lease a lane or lanes on the state highway system; provided, that, the private entity is not allowed to own a lane or lanes on the state highway system. USER FEES AND RESTRICTIONS This amendment authorizes the commissioner, subject to approval of the board, to establish user fees, vehicle restrictions, and other fees or restrictions applicable to the operation of the user fee facilities. The commissioner may also enforce these fees and restrictions. This amendment requires that the operator of a vehicle that is driven through a user fee facility must pay the established user fee. The following vehicles are exempt from payment of the user fee: (1) Law enforcement or other authorized emergency vehicles, regardless of whether the vehicle is responding to an emergency or displaying a flashing light; (2) Multiple-passenger vehicles operated by a public transit authority; and (3) On a high occupancy user fee lane, vehicles that have been authorized to use an HOV lane free of charge during the time period specified for HOV use. This amendment authorizes the department, with approval of the board, to prohibit certain classes of vehicles from operating in a user fee facility through the posting of appropriate signage, wherever the department determines, on the basis of an engineering and traffic investigation that the presence of those vehicles impair the safe or efficient operation of the user fee facility. A person who operates a prohibited vehicle on a user fee facility, commits an offense, classified as a Class C misdemeanor. The punishment for a violation is a fine not to exceed $50. TRANSPORTATION MODERNIZATION BOARD This amendment establishes the transportation modernization board to consist of five voting members as follows: (1) One member to be appointed by the governor, whose initial term will be six years; (2) One member to be appointed by the speaker of the house of representatives, whose initial term will be five years; (3) One member to be appointed by the speaker of the senate, whose initial term will be three years; (4) The governor, ex officio, or the governor's designee; and (5) The commissioner of transportation, ex officio, or the commissioner's designee. Following the initial terms, the term for a board member who does not serve ex officio is four years. A board member who does not serve ex officio is eligible for reappointment and may serve a maximum of two full terms; provided, however, that an appointment to fill an unexpired term as a result of a vacancy does not count toward the term limit. At the expiration of a board member's term, the member may continue to serve until a successor is appointed or until the member is reappointed. This amendment provides that three board members constitute a quorum for the transaction of business. If a quorum is present, a vacancy on the board does not prevent the board from transacting business or otherwise taking an action authorized. The commissioner of transportation or the commissioner's designee must serve as chair. The board must meet at the call of the chair. The board may elect other officers as the board deems appropriate. The department is required to provide administrative support to the board. The board may exercise the powers and duties necessary to implement the Act. ENFORCEMENT OF NONPAYMENT This amendment provides that the operator of a vehicle that is driven through a user fee facility without payment of the user fee commits a violation, classified as a Class C misdemeanor, punishable by a fine not to exceed $50. Each event of nonpayment is a separate violation. This amendment authorizes the department, or its contractor, to use an open road user fee system to monitor use of a user fee facility and collect payment. The state is authorized to enter into reciprocity agreements with other government entities or toll authorities for the purpose of collecting user fees and any applicable administrative fees form non-Tennessee residents for violation. The department, or department's contractor, is required to place signs on, or in advance of, a user fee facility that provide drivers with the following information: (1) Notice that the driver is approaching a facility for which a user fee is required, with signs providing this information placed in advance of the location where the user fee is required; (2) The methods by which the user fee may be paid; and (3) If applicable, directions to the nearby user fee collection facility that accepts cash payment of the user fee. This amendment requires the department to establish administrative fees for the collection of unpaid user fees as well as procedures for the collection of these fees. In the event of nonpayment of the user fee required, and of the issuance of a written notice of nonpayment by the department or its contractor, the registered owner of the vehicle is liable for the payment of the required user fee and any applicable administrative fee established. This amendment establishes an exception to the violation of driving through a user fee facility without payment of the fees if the registered owner of the vehicle was a lessor of the vehicle at the time the user fee was incurred or if the registered owner of the vehicle transferred ownership of the vehicle to another person before the event of nonpayment. Within 30 days of the department or contractor mailing notice of nonpayment to the registered owner, the registered owner provides to the department or its contractor a copy of the rental, lease, or other contract, with the name and address of the lessee at the time the user fee was incurred clearly legible; or the name and address of the person to whom the vehicle was transferred. If the lessor or former owner provides the required information, the department or the department's contractor may send a notice of nonpayment to the lessee or new owner at the address provided within 30 days of receipt of the required information from the lessor and must follow the procedures established for collection of unpaid fees and administrative fees. A lessee or subsequent owner who is mailed a written notice of nonpayment is liable for payment of the user fee and any applicable administrative fee. This amendment provides that the department has sufficient proof of nonpayment upon: (1) Proof that a vehicle was driven through a user fee collection facility without payment of the user fee, which may include, but is not limited to, testimony of a law enforcement officer, or evidence obtained through the use of an open road user fee system installed by the department or its contractor; and (2) Proof that the person was the registered owner, lessee, or subsequent owner, which may include, but is not limited to, records of the department of revenue or the analogous department of another state or country, or information provided by a lessor or previous owner. It is also an exception to a violation if the vehicle was stolen before the event of nonpayment occurred; provided, however, that the theft was reported to the appropriate law enforcement authority before the earlier of the occurrence of nonpayment, or eight hours after the discovery of the theft. This amendment authorizes a registered owner who commits three or more violations within the same 12-month period to be determined to be a habitual violator and to be subject to suspension or non-renewal of the register owner's vehicle registration. It is required that no later than January 1, 2025, the department must establish: (1) The criteria for a determination by the department or the department's contractor that a registered owner is a habitual violator; and (2) The process for the department or the department's contractor to notify the department of revenue of the determination that a registered owner is a habitual violator. The department must then notify the department of revenue upon establishment of the criteria and process. No later than 18 months following this notification, the department of revenue is required to promulgate rules to establish a process for suspending or non-renewing a habitual violator's vehicle registration. The rules must include, but are not limited to, a process for providing at least 60 days' written notice to the registered owner of the department of revenue's intention to suspend or non-renew the registered owner's vehicle registration, which notice must include the reason for the proposed suspension or non-renewal, an explanation of the process for a registered owner to challenge the suspension or non-renewal, which must include an opportunity for a hearing, the process by which the registered owner can avoid the suspension or non-renewal of the registered owner's vehicle registration through the payment of unpaid user fees and any applicable administrative fee, and the imposition of any administrative fees necessary to cover the department of revenue's cost in administering enforcement of nonpayment. PROPRIETARY RECORDS This amendment establishes that personal information or highly restricted personal information obtained in connection with a motor vehicle record, and thereafter obtained by the department or the department's contractor in connection with the collection of and enforcement of user fees on a user fee facility, is subject to disclosure limitations established in the federal Driver's Privacy Protection Act and the Uniform Motor Vehicle Records Disclosure Act and must remain confidential as required by such federal and state laws and not be open for public inspection under state law, nor discoverable in legal proceedings. However, financial information, transaction history, and information generated by an open road user fee system on a user fee facility related to the collection of a user fee from a person, and which has been obtained by the department or the department's contractor for the purposes of collecting and enforcing user fees on a user fee facility must remain confidential and not be open for public inspection or another law. The department or the department's contractor may use the account information only for purposes of collecting and enforcing user fees. Notwithstanding another law to the contrary, this information is not open to public inspection or another law; provided, however, that the user fee facility account holder may examine the account holder's own account information, and a third party by authority of a proper court order may inspect and examine confidential account information. This amendment establishes that proposals received by the department for franchise agreements, concession agreements, or some combination of those agreements, related to the design, construction, financing, operation, or maintenance of user fee facilities, and documents used by the department to evaluate and accept or reject such proposals, must remain confidential, not be subject to disclosure to another proposer, and not be open for public inspection or another law until after the department has selected a proposal and awarded a contract. Proprietary information contained in a proposal for such an agreement, whether a solicited or unsolicited proposal, must remain confidential, not be subject to disclosure to another proposer, and not be open for public inspection pursuant to or another law. ALTERNATE DELIVERY CONTRACTS AND LIMITATIONS This amendment prohibits the department from procuring more than 28 alternative delivery contracts per fiscal year. An alternative delivery contract is defined a design-build contract, contracts using the construction manager/general contractor method, and contracts using the progressive design-build method. This limit only applies to projects funded by the state highway fund and does not apply to projects funded by the transportation modernization fund, discretionary funds, or federal grant program funds. ELECTRIC VEHICLES Under present law, in addition to all other motor vehicle registration fees, for an electric vehicle, it is required that an additional registration fee of $100 be paid to the department at the time the vehicle is registered or renewed. This amendment deletes this provision. Instead, it requires that beginning January 1, 2024, in addition to all other vehicle registration fees, there must be paid to the department at the time the vehicle registration is renewed an additional fee according to the following schedule: (1) For all-electric vehicles: (A) On or after January 1, 2024, and prior to January 1, 2027, $200; (B) On or after January 1, 2027, and prior to January 1, 2028, $274; and (C) On or after January 1, 2028, and each subsequent year, the fee described in (B) adjusted by an amount each year to reflect the effect of annual inflation or deflation; (2) For hybrid electric vehicles and plug-in hybrid electric vehicles: (A) On or after January 1, 2024, and prior to January 1, 2028, $100; and (B) On or after January 1, 2028, and each subsequent year, $100, adjusted by an amount to reflect the annual inflation or deflation. The department is required, on January 1, 2028, and every January 1 after, for the registration fees assessed to adjust the amount of the fee to reflect the effect of annual inflation or deflation for the cost of living that consumers in this state experienced on average during the immediately preceding fiscal year, as follows: (1) If, based upon the chained consumer price index for all urban consumers rate published by the United States department of labor, bureau of labor statistics or another similar index established by the federal government for June of the previous year, the department determines that this federal index reflects the effect of inflation and deflation for the cost of living that consumers in this state experienced on average during the preceding fiscal year, and if the rate is less than three percent, then the department must adjust the amount of the fee by that rate; and (2) If, based upon the chained consumer price index for all urban consumers rate published by the United States department of labor, bureau of labor statistics or another similar index established by the federal government for June of the previous year, the department determines that this federal index reflects the effect of inflation and deflation for the cost of living that consumers in this state experienced on average during the preceding fiscal year, and the rate is equal to or more than 3 percent, then the department must adjust the amount of the fee by 3 percent. The adjustment made must be rounded to the nearest whole dollar figure and the department is required to publish each adjusted registration fee on its website. This amendment requires that the proceeds of these additional fees established must be appropriated as follows: (1) 63.4 percent to the state highway fund; (2) 11.8 percent to municipalities, in proportion as the population of each municipality bears on the aggregate population of all municipalities according the federal census; (3) 22 percent to counties, on the basis of the distribution of the county aid funds which is distributed equally among the 95 counties of the state, with 50 percent of the balance being distributed among the 95 counties based on area, and 50 percent distributed among the 95 counties based on population; and (4) 2.8 percent to the general fund. This amendment requires that, beginning January 1, 2027, if the federal government implements any taxes or fees on all-electric vehicles and allocates those taxes or fees to the federal highway trust fund, then the additional registration fee for all-electric vehicles must be adjusted so as to account for the tax or fee assessed by the federal government. The department must adjust the additional registration fee on all-electric vehicles by subtracting the sum of federal tax or fee from the sum of the additional registration fee at the time of the adjustment. An adjustment in the additional registration fee will become effective beginning January 1 of the calendar year following the implementation of the federal tax or fee on all-electric vehicle. Notwithstanding the sum of the taxes or fees imposed by the federal government, the department's adjustment of the additional registration fee must not result in an additional registration fee for all-electric vehicles of less than $200, adjusted for inflation, on or after January 1, 2028. If the federal government subsequently elects to decrease any or all taxes or fees on all-electric vehicles after implementation, then the additional registration fee must be increased by an amount equal to the amount of the decrease by the federal government. HOV This amendment rewrites the present law on high occupancy vehicles and lanes. This amendment requires drivers to obey the directions of every official traffic control device that is erected or placed to restrict usage of a lane designed for high-occupancy vehicles. Operation of a vehicle other than a high occupancy vehicle in an HOV lane is an offense. A violation of this section is a Class C misdemeanor, subject only to imposition of a fine, not to exceed $50.00, and court costs, not to exceed $10 including, but not limited to, any statutory fees of officers. State or local litigation taxes are not applicable to a case prosecuted for a violation. Drivers of emergency vehicles are exempt from the HOV provisions. ADMINISTRATION AND DISPOSITION OF STATE PROPERTY Under present law, the commissioner of general services, with the approval of the governor and attorney general and reporter, may sell, lease or otherwise convey any interest in surplus state real property according to the following provisions: (1) If the property was acquired by or for the use of the department of transportation for right-of-way, if its fair market value does not exceed $75,000 or such amounts in excess of $75,000 as may be approved by the state building commission, and if any adjoining property owner or the former owner of that property wishes to purchase the property, or if a legal governmental body wishes to acquire the property for a public use purpose, or if a legal governmental body wishes to acquire the property for fair market value,, then this subdivision must apply, notwithstanding any other provision of this section. Instead, the commissioner of transportation is authorized to declare the property surplus if the commissioner determines that the purpose of its acquisition has been completed and that the property is no longer needed by the department of transportation or another state agency, and may sell it to any adjoining property owner or the former owner of that property, for an amount representing not less than the fair market value, together with costs; provided, however, that the department of transportation may convey the property or any interest in the property by negotiated sale or disposal to any legal governmental body for a public use purpose, subject to reversion to the department of transportation for failure to continue public ownership and use. If approved by the department of transportation, and the federal highway administration where required by federal law, the department of transportation may accept real property in exchange for the surplus real property conveyed if the replacement property is at least equal in fair market value to the surplus property being replaced. The fair market value of the replacement property must be determined in accordance with the procedures for determining the fair market value of the surplus property. The commissioner of general services must concur in the fair market value amount or in the negotiated sale or disposal of the property to a legal governmental body for a public use purpose. If in the judgment of the department of transportation a survey of the property is required, the prospective purchaser must pay the department of transportation in advance for the cost of the survey; (2) The former property owner's right terminates 10 years after the date of acquisition by the department of transportation by conveyance or date of taking in condemnation of the subject property by the department. The former property owner's right must not transfer to the owner's heirs. The former property owner must have first right of refusal to purchase the right-of-way; provided, however, that the department may convey the property or any interest in the property to a legal governmental body for a public use purpose, subject to reversion to the department of transportation for failure to continue public ownership and use, without offering the former owner a first right of refusal to purchase the property. If the former property owner relinquishes the owner's right or the right has expired, the property may be conveyed to a legal governmental body or to an adjoining property owner. If more than one adjoining property owner is interested in purchasing the right-of-way, the interested adjoining property owners must submit sealed bids to the department of transportation, with the minimum bid price being the fair market value determined by appraisal, and the property may be conveyed to the adjoining property owner offering the highest responsive bid. The successful bidder must reimburse any unsuccessful prospective purchaser for survey and appraisal costs incurred; (3) The fair market value of surplus right-of-way property must be determined in accordance with the following procedures: (A) The department of transportation must make a preliminary planning estimate of the fair market value of the property in accordance with procedures that the department may establish; (B) If the department of transportation's preliminary planning estimate of the fair market value of the property is $10,000 or less, the property must be appraised by an appraiser on staff with the department of transportation at no cost to the prospective purchaser; (C) If the department of transportation's preliminary planning estimate or subsequent staff appraisal of the fair market value of the property is greater than $10,000, the property must be appraised by an independent appraiser whose services must be procured by the department of transportation in accordance with state law. The independent appraiser must be licensed and certified by the Tennessee real estate appraiser commission and must be selected from a list of prequalified appraisers approved by the department of transportation. The prospective purchaser must pay the department of transportation in advance for the cost of the independent appraisal; (D) The initial appraisal must be subject to review and approval by the department of transportation in accordance with procedures that the department of transportation may establish. The appraisal review must be conducted, at the department of transportation's expense, by a review appraiser who is licensed and certified by the Tennessee real estate appraiser commission and who is either employed by or under contract with the department of transportation. The review appraiser must either approve the initial appraisal or reject the initial appraisal and reappraise the property to determine the fair market value of the property, subject to the approval of the director of the right-of-way division of the department of transportation or the director's designee. If approved by the director or the director's designee, the review appraiser's determination must be presented to a prospective purchaser as the fair market value of the property; (E) If a prospective purchaser does not accept the appraised fair market value of the property as determined by the review appraiser, the prospective purchaser may request a final review and reconsideration by the commissioner of transportation or the commissioner's designee. The commissioner or the commissioner's designee must obtain a final review of the appraisal by a review appraiser who is licensed and certified by the Tennessee real estate appraiser commission and who is either employed by or under contract with the department of transportation; provided, however, that the final review appraiser must not be the same person who previously reviewed the initial appraisal. The prospective purchaser must be given the opportunity to present information concerning the value of the property for the consideration of the final review appraiser. The final review appraiser must consider all relevant information, including any appraisal previously performed by or for the department of transportation, and must have the authority to reappraise or make adjustments in the appraised fair market value, in accordance with generally accepted professional standards and guidelines. The final review appraiser's determination of the fair market value of the property must be subject to the approval of the commissioner or the commissioner's designee; and (F) The department's final determination of the fair market value of the property is subject to the concurrence of the commissioner of general services. This amendment replaces "$75,000," wherever it may appear, with "$250,000," and "$10,000," wherever it may appear, with "$25,000."

Track This Bill

Overview

Track Tennessee Legislation Like a Pro

Join hundreds of professionals using LegisGo to stay ahead of legislative changes.

Instant Alerts

Get notified when bills you track move through the legislature

AI Summaries

Understand complex legislation in seconds with AI-powered analysis

Full Access

All 132 legislators, committee schedules, and voting records

Sponsor

Unknown

Details

Session

113th General Assembly

Introduced

January 20, 2023

Subjects

48952235

Want to track this bill? Get instant alerts and AI-powered insights.