FIRST REGULAR SESSION
SENATE COMMITTEE SUBSTITUTE FOR
HOUSE BILL NO. 596
94TH GENERAL ASSEMBLY
Reported from the Committee on Transportation, April 19, 2007, with recommendation that the Senate Committee Substitute do pass.
TERRY L. SPIELER, Secretary.
1766S.04C
AN ACT
To repeal sections 227.107, 390.071, 390.136, and 622.095, RSMo, and to enact in lieu thereof five new sections relating to transportation, with penalty provisions.
Be it enacted by the General Assembly of the State of Missouri, as follows:
Section A. Sections 227.107, 390.071, 390.136, and 622.095, RSMo, are repealed and five new sections enacted in lieu thereof, to be known as sections 227.103, 227.107, 227.115, 390.021, and 390.136, to read as follows:
227.103. 1. Notwithstanding any other provision of law to the contrary, the commission is authorized to accept an annual bid bond for its construction and maintenance projects. The commission shall prescribe the form and content of an annual bid bond under the provisions set forth in the Missouri standard specifications for highway construction, or its successor.
2. The commission is authorized to promulgate administrative rules to administer the provisions of this section. Any rule or portion of a rule, as that term is defined in section 536.010, RSMo, that is created under the authority delegated in this section shall become effective only if it complies with and is subject to all of the provisions of chapter 536, RSMo, and, if applicable, section 536.028, RSMo. This section and chapter 536, RSMo, are nonseverable and if any of the powers vested with the general assembly pursuant to chapter 536, RSMo, to review, to delay the effective date, or to disapprove and annul a rule are subsequently held unconstitutional, then the grant of rulemaking authority and any rule proposed or adopted after August 28, 2007, shall be invalid and void.
227.107. 1. Notwithstanding any provision of section 227.100 to the contrary, as an alternative to the requirements and procedures specified by sections 227.040 to [227.100] 227.105, the state highways and transportation commission is authorized to enter into highway design-build project contracts. The authority granted to the state highways and transportation commission by this section shall be limited to a total of three design- build project contracts. Two design-build projects authorized by this section shall be selected by the highways and transportation commission from 1992 fifteen year plan projects. Authority to enter into design-build projects granted by this section shall expire on July 1, 2012, unless extended by statute or upon completion of three projects, whichever is first.
2. For the purpose of this section a "design-builder" is defined as an individual, corporation, partnership, joint venture or other entity, including combinations of such entities making a proposal to perform or performing a design-build highway project contract.
3. For the purpose of this section, "design-build highway project contract" is defined as the procurement of all materials and services necessary for the design, construction, reconstruction or improvement of a state highway project in a single contract with a design-builder capable of providing the necessary materials and services.
4. For the purpose of this section, "highway project" is defined as the design, construction, reconstruction or improvement of highways or bridges under contract with the state highways and transportation commission, which is funded by state, federal or local funds or any combination of such funds.
5. In using a design-build highway project contract, the commission shall establish a written procedure by rule for prequalifying design-builders before such design-builders will be allowed to make a proposal on the project.
6. In any design-build highway project contract, whether involving state or federal funds, the commission shall require that each person submitting a request for qualifications provide a detailed disadvantaged business enterprise participation plan. The plan shall provide information describing the experience of the person in meeting disadvantaged business enterprise participation goals, how the person will meet the department of transportation's disadvantaged business enterprise participation goal and such other qualifications that the commission considers to be in the best interest of the state.
7. The commission is authorized to issue a request for proposals to a maximum of five design-builders prequalified in accordance with subsection 5 of this section.
8. The commission may require approval of any person performing subcontract work on the design-build highway project.
9. The bid bond and performance bond requirements of section 227.100 and the payment bond requirements of section 107.170, RSMo, shall apply to the design-build highway project.
10. The requirements of subsection 9 of this section may be modified by the commission for any design-build highway project contract which is designated by the commission as a "design-build-finance-maintain" project, and for which the contract with the design-builder exceeds twenty-five years. For such projects, the commission shall require the design-builder to provide or cause to be provided such bonds in such terms, durations, and amounts as it may determine to be adequate for its protection and provided by a surety or sureties satisfactory to the commission, including but not limited to:
(1) A bid or proposal bond in an amount of not less than five million dollars;
(2) A performance bond or bonds for the construction period specified in the design-build highway project contract in an amount of not less than the maximum cost of construction work performed or caused to be performed by the design-builder in any calendar year of such period; and
(3) A payment bond or bonds that shall be enforceable under section 522.300, RSMo, for the protection of all persons supplying labor and material in carrying out the work provided for in the design-build highway project contract. The amount of the payment bond or bonds shall equal the total amount payable under the terms of the design-build highway project contract unless the commission determines in writing supported by specific findings that a payment bond or bonds in such amount is impractical, in which case the commission shall establish the amount of the payment bond or bonds; except that, the amount of the payment bond or bonds shall not be less than the amount of the performance bond or bonds.
11. The commission is authorized to prescribe the form of the contracts for the work.
[11.] 12. The commission is empowered to make all final decisions concerning the performance of the work under the design-build highway project contract, including claims for additional time and compensation.
[12.] 13. The provisions of sections 8.285 to 8.291, RSMo, shall not apply to the procurement of architectural, engineering or land surveying services for the design-build highway project, except that any person providing architectural, engineering or land surveying services for the design-builder on the design-build highway project must be licensed in Missouri to provide such services.
[13.] 14. The commission shall pay a reasonable stipend to prequalified responsive design-builders who submit a proposal, but are not awarded the design-build highway project.
[14.] 15. The commission shall comply with the provisions of any act of congress or any regulations of any federal administrative agency which provides and authorizes the use of federal funds for highway projects using the design-build process.
[15.] 16. The commission shall promulgate administrative rules to implement this section or to secure federal funds. Such rules shall be published for comment in the Missouri Register and shall include prequalification criteria, the make-up of the prequalification review team, specifications for the design criteria package, the method of advertising, receiving and evaluating proposals from design-builders, the criteria for awarding the design-build highway project based on the design criteria package and a separate proposal stating the cost of construction, and other methods, procedures and criteria necessary to administer this section.
[16.] 17. The commission shall make a status report to the members of the general assembly and the governor following the award of the design-build project, as an individual component of the annual report submitted by the commission to the joint transportation oversight committee in accordance with the provisions of section 21.795, RSMo. The annual report prior to advertisement of the design-build highway project contracts shall state the goals of the project in reducing costs and/or the time of completion for the project in comparison to the design-bid-build method of construction and objective measurements to be utilized in determining achievement of such goals. Subsequent annual reports shall include: the time estimated for design and construction of different phases or segments of the project and the actual time required to complete such work during the period; the amount of each progress payment to the design-builder during the period and the percentage and a description of the portion of the project completed regarding such payment; the number and a description of design change orders issued during the period and the cost of each such change order; upon substantial and final completion, the total cost of the design-build highway project with a breakdown of costs for design and construction; and such other measurements as specified by rule. The annual report immediately after final completion of the project shall state an assessment of the advantages and disadvantages of the design-build method of contracting for highway and bridge projects in comparison to the design-bid-build method of contracting and an assessment of whether the goals of the project in reducing costs and/or the time of completion of the project were met.
[17.] 18. The commission shall give public notice of a request for qualifications in at least two public newspapers that are distributed wholly or in part in this state and at least one construction industry trade publication that is distributed nationally.
[18.] 19. The commission shall publish its cost estimates of the design-build highway project award and the project completion date along with its public notice of a request for qualifications of the design-build project.
[19.] 20. If the commission fails to receive statements of qualifications from at least two design-builders in response to a request for qualifications under subsection 5 of this section or to receive at least two responsive submissions from design-builders considered qualified[, submissions shall not be opened and it shall] for a design-build highway project contract, the design-build procurement process shall be suspended and the commission may readvertise the project.
21. (1) In the event the commission issues a request for qualifications under subsection 5 of this section at least twice for the same highway project, and it receives a statement of qualifications from only one design-builder for the design-build highway project contract, the commission may negotiate in good faith with the design-builder for such contract based upon the best value to the state.
(2) In the event the commission issues a request for proposals under subsection 7 of this section at least twice for the same highway project, and it receives only one responsive submission for the design-build highway project contract, the commission may negotiate in good faith with the design-builder for such contract based upon the best value to the state.
(3) At any time prior to the execution of a design-build highway project contract with the design-builder, if the commission is not satisfied with the results of the negotiation with the design-builder, it may terminate the negotiations and reject any and all submissions and proposals by the design-builder.
227.115. With respect to contracts awarded by the department of transportation or the state highways and transportation commission under sections 227.100, 227.107, or 238.260, RSMo, after June 30, 2007, the department or commission shall be authorized to issue an exemption certificate for the purchase of tangible personal property and materials as exempt from sales and use tax as provided for exempt entities in section 144.062, RSMo. The department or commission and any contractor or material supplier operating under such exemption certificate shall comply with section 144.062, RSMo, and any rules promulgated by the department of revenue with respect to such sales.
390.021. 1. The provisions of this section shall supercede any provisions of section 390.030 to the contrary.
2. As used in this section and as used in chapter 622, RSMo, the following words and phrases mean:
(1) "UCR implementing regulations" includes the regulations issued by the United States secretary of transportation under 49 U.S.C.A., section 13908; the rules and regulations issued by the board of directors of the Unified Carrier Registration (UCR) plan under 49 U.S.C.A., section 14504a; and the administrative rules adopted by the state highways and transportation commission under this section;
(2) "Unified Carrier Registration Act", or "UCR Act", means sections 4301 to 4308 of the Unified Carrier Registration Act of 2005, within subtitle C of title IV of the "Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users" or "SAFETEA-LU", Public Law 109-59 (119 Stat. 1761), as those sections have been and periodically may be amended.
3. Except when the context clearly requires otherwise, the definitions of terms in 49 U.S.C., sections 13102, 13908, and 14504a shall apply to and determine the meaning of those terms as used in this section.
4. Notwithstanding any other provision of law, in carrying out and being subject to the provisions of the UCR act, the Unified Carrier Registration (UCR) agreement, the UCR implementing regulations, and this section, the state highways and transportation commission may:
(1) Submit to the proper federal authorities, amend and carry out a state plan to qualify as a base-state and to participate in the UCR plan and administer the UCR agreement, and take other necessary actions as the designated representative of the state of Missouri so that:
(a) Missouri domiciled entities who must register and pay UCR registration fees are not required to register and pay those fees in a base-state other than the state of Missouri;
(b) The state of Missouri does not forfeit UCR registration fee revenues; and
(c) The state of Missouri may maintain its eligibility to receive the maximum allowable allocations of revenues derived under the UCR agreement;
(2) Administer the UCR registration of Missouri-domiciled motor carriers, motor private carriers, brokers, freight forwarders, and leasing companies, and such persons domiciled in nonparticipating states who have designated this state as their base-state under the UCR act;
(3) Receive, collect, process, deposit, transfer, distribute, and refund UCR registration fees relating to any of the persons and activities described in this section. Notwithstanding any law, these UCR registration fees collected by the commission are hereby designated as nonstate funds within the meaning of article IV, section 15 of the Missouri Constitution, and the commission shall transmit these funds to the state department of revenue for deposit to the credit of the state highways and transportation department fund. The commission shall, from time to time, direct the payment of, and the director of revenue shall pay, the fees so deposited, in accordance with the provisions of the UCR act, the UCR agreement, and the UCR implementing regulations. The director of revenue shall credit all income derived from the investment of these funds to the state highways and transportation department fund;
(4) Exercise all other powers, duties, and functions the UCR act requires of or allows a participating state or base-state;
(5) Promulgate administrative rules, and issue specific orders, relating to any of the persons and activities described in this section. Any rule or portion of a rule, as that term is defined in section 536.010, RSMo, that is created under the authority delegated in this section shall become effective only if it complies with and is subject to all of the provisions of chapter 536, RSMo, and, if applicable, section 536.028, RSMo. This section and chapter 536, RSMo, are nonseverable and if any of the powers vested with the general assembly pursuant to chapter 536, RSMo, to review, to delay the effective date, or to disapprove and annul a rule are subsequently held unconstitutional, then the grant of rulemaking authority and any rule proposed or adopted after August 28, 2007, shall be invalid and void;
(6) Enter into agreements with any agencies or officers of the United States, or of any state that participates or intends to enter into the UCR agreement; and
(7) Delegate any or all of the powers, duties, and functions of the commission under this section to any agent or contractor.
5. After the commission has entered into the UCR plan on behalf of this state, the requirements in the UCR agreement shall take precedence over any conflicting requirements under chapter 622, RSMo, or this chapter.
6. Notwithstanding any other provision of law, every motor carrier, motor private carrier, broker, freight forwarder, and leasing company that has its principal place of business within this state, and every such person who has designated this state as the person's base-state under the provisions of the UCR act, shall timely complete and file with the state highways and transportation commission all the forms required by the UCR agreement and the UCR implementing regulations, and shall pay the required UCR registration fees to the commission.
7. All powers of the commission under section 226.008, RSMo, are hereby made applicable to the enforcement of this section with reference to any person subject to any provision of this section. The chief counsel shall not be required to exhaust any administrative remedies before commencing any enforcement actions under this section. The provisions of chapter 622, RSMo, shall apply to and govern the practice and procedures before the courts in those actions.
8. Except as required by the UCR act, the UCR agreement, or the UCR implementing regulations, the provisions of this section and the rules adopted by the commission under this section shall not be construed as exempting any motor carrier, or any person controlled by a motor carrier, from any of the requirements of chapter 622, RSMo, or this chapter, relating to the transportation of passengers or property in intrastate commerce.
390.136. 1. No motor carrier, except as provided in section 390.030, shall operate any motor vehicle unless such vehicle shall be accompanied by an annual or seventy-two-hour regulatory license issued by the state highways and transportation commission; provided that when a motor carrier uses a truck-tractor for pulling trailers or semitrailers, such motor carrier may elect to license either the truck-tractor, trailer or semitrailer. The fee for each such regulatory license shall be ten dollars per year and shall be due and payable as provided in this section. Such license shall be issued in such form and shall be used pursuant to such reasonable rules and regulations as may be prescribed by the commission.
2. Any regulatory license issued to a motor carrier for use in driveaway operations, as defined in this section, shall be issued to such motor carrier without reference to any particular vehicle and may be used interchangeably by the holder thereof on any motor vehicle or combinations thereof moving in driveaway operations under such carrier's property carrier registration, certificate, or permit.
3. In case of emergency, temporary, unusual or a peak demand for transportation, additional vehicles as described in subsection 1 of this section may be operated upon issuance of a seventy-two-hour license for each vehicle so operated. The license fee for each such additional vehicle shall be the sum of five dollars for each seventy-two consecutive hours, or any portion thereof. Such licenses shall be issued, renewed, and staggered in such form and shall be used pursuant to such reasonable rules and regulations as the commission may prescribe. No such additional vehicle which has been licensed pursuant to this subsection shall be operated without being accompanied by such license.
4. The commission shall collect the applicable license fee prior to the issuance of such license or licenses provided for in this section, and shall receive the license fee or fees and immediately deposit the same to the credit of the state highways and transportation department fund [except as otherwise provided in section 622.095, RSMo,] or when an agreement has been negotiated with another jurisdiction whereby prepayment is not required. In such cases, [section 622.095, RSMo, if applicable, or] the terms of the agreement shall prevail.
5. Any person operating as a motor carrier who violates or fails to comply with any of the provisions of this section shall be adjudged guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than one hundred dollars.
6. The regulatory license fee provided in this section may be paid at any state weigh station.
7. The commission shall prescribe, for every regulatory license issued pursuant to this section, an effective date and an expiration date. Notwithstanding any provision of law to the contrary, the commission may stagger the issuance of licenses pursuant to this section to begin at quarterly intervals during any calendar year. Not later than the expiration date of the current license, or as otherwise prescribed, each motor carrier shall pay the regulatory license fee for each vehicle that the carrier will operate during the next yearly period. The commission may issue partial or over one-year licenses during the transition from an annual license, to accommodate motor carriers in adding vehicles to their operations during the year, to coordinate the dates for a single carrier's licensing of multiple licenses, or for such other reasons as approved by the commission.
[390.071. 1. No person shall engage in the business of a motor carrier in interstate commerce on any public highway in this state unless there is in force with respect to such carrier a permit issued by the division of motor carrier and railroad safety authorizing such operations.
2. Upon application to the division in writing, containing such information as the division may by rule require, accompanied by a copy of applicant's certificate of public convenience and necessity or permit issued by the Interstate Commerce Commission, the filing of such liability insurance policy or bond and other formal documents as the division shall by rule require, the division, if it finds applicant qualified, shall, with or without hearing, issue a permit authorizing the proposed interstate operations.]
[622.095. 1. In addition to its other powers, the state highways and transportation commission may negotiate and enter into fair and equitable cooperative agreements or contracts with other states, the District of Columbia, territories and possessions of the United States, foreign countries, and any of their officials, agents or instrumentalities, to promote cooperative action and mutual assistance between the participating jurisdictions with regard to the uniform administration and registration, through a single base jurisdiction for each registrant, of Federal Motor Carrier Safety Administration operating authority and exempt operations by motor vehicles operated in interstate commerce. Notwithstanding any other provision of law to the contrary, and in accordance with the provisions of such agreements or contracts between participating jurisdictions, the commission may:
(1) Delegate to other participating jurisdictions the authority and responsibility to collect and pay over statutory registration, administration or license fees; to receive, approve and maintain the required proof of public liability insurance coverage; to receive, process, maintain and transmit registration information and documentation; to issue evidence of proper registration in lieu of certificates, licenses, or permits which the commission may issue motor vehicle licenses or identifiers in lieu of regulatory licenses under section 390.136, RSMo; and to suspend or revoke any credential, approval, registration, certificate, permit, license, or identifier referred to in this section, as agents on behalf of the commission with regard to motor vehicle operations by persons having a base jurisdiction other than this state;
(2) Assume the authority and responsibility on behalf of other jurisdictions participating in such agreements or contracts to collect and direct the department of revenue to pay over to the appropriate jurisdictions statutory registration, administration or license fees, and to perform all other activities described in subdivision (1) of this subsection, on its own behalf or as an agent on behalf of other participating jurisdictions, with regard to motor vehicle operations in interstate commerce by persons having this state as their base jurisdiction;
(3) Establish or modify dates for the payment of fees and the issuance of annual motor vehicle licenses or identifiers in conformity with such agreements or contracts, notwithstanding any provisions of section 390.136, RSMo, to the contrary; and
(4) Modify, cancel or terminate any of the agreements or contracts.
2. Notwithstanding the provisions of section 390.136, RSMo, statutory registration, administration or license fees collected by the commission on behalf of other jurisdictions under such agreements or contracts are hereby designated as "nonstate funds" within the meaning of section 15, article IV, Constitution of Missouri, and shall be immediately transmitted to the department of revenue of the state for deposit to the credit of a special fund which is hereby created and designated as the "Base State Registration Fund". The commission shall direct the payment of, and the director of revenue shall pay, the fees so collected to the appropriate other jurisdictions. All income derived from the investment of the base state registration fund by the director of revenue shall be credited to the state highways and transportation department fund.
3. "Base jurisdiction", as used in this section, means the jurisdiction participating in such agreements or contracts where the registrant has its principal place of business.
4. Every person who has properly registered his or her interstate operating authority or exempt operations with his or her base jurisdiction and maintains such registration in force in accordance with such agreements or contracts is authorized to operate in interstate commerce within this state any motor vehicle which is accompanied by a valid annual license or identifier issued by his base jurisdiction in accordance with such agreements or contracts, notwithstanding any provision of section 390.071, 390.126 or 390.136, RSMo, or rules of the commission to the contrary.
5. Notwithstanding any provision of law to the contrary, the commission may stagger and prorate the payment and collection of license fees pursuant to this section for the purposes of:
(1) Coordinating the issuance of regulatory licenses under this section with the issuance of other motor carrier credentials; and
(2) Complying with any federal law or regulation.]
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