Rep(s). By Representatives McMillan, Simpson, Shiver, Faust and Baker


HB611

ENROLLED, An Act,

Relating to Baldwin County; pursuant to the authority granted by the Alabama Constitution of 1901, as amended, to provide for the incorporation, organization, powers, and operation of a toll road and bridge authority as a public corporation in Baldwin County; to provide for the certificate of incorporation, board of directors, officers, and powers of the authority; to authorize the authority to acquire, design, construct, equip, operate, improve, and maintain a toll road and bridge project in Baldwin County connecting the present northern terminus of the Baldwin Beach Express to U.S. Interstate Highway 65 and other similar improvements; to authorize the authority to acquire property by eminent domain; to authorize the authority to regulate the use and operation of the project, including providing for penalties and fines for violations of regulations; to authorize the authority to set, revise, and collect tolls, fees, and charges for the use of the project; to authorize the authority to issue revenue bonds for the project; and to provide for the payment of any revenue bonds from the net proceeds of tolls, fees, and charges.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. Definitions. The following words have the following meanings:

(1) ACT. This act.

(2) AUTHORITY. A public body or corporation incorporated for the purpose of acquiring, designing, constructing, regulating, building, improving, equipping, operating, and maintaining the project.

(3) BOARD. The board of directors and of the authority.

(4) BONDS. Bonds, warrants, notes, securities, agreements, financing contracts, or other financial obligations of the authority, including, without limitation, refunding bonds, warrants, notes, securities, agreements, financing contracts, or other financial obligations, payable out of, and secured by a pledge of, all or any part of the net revenues to be derived from the operation of the project, including, without limitation, tolls, charges, and fees imposed or collected by the authority, or out of any other funds or amounts pledged to, on behalf, or by the authority.

(5) CERTIFICATE. The certificate of incorporation of the authority.

(6) CHAIR. The member of the commission serving from time to time as elected or appointed chair.

(7) CODE. The Code of Alabama 1975, as amended.

(8) COMMISSION. The Baldwin County Commission or other governing body of the county.

(9) COST or COSTS. As applied to the project, at any time and from time to time, any cost shall include the costs of the authority, including, without limitation, all of the following: 

a. The costs of acquisition, preparation, and design, including engineering, architectural, environmental, contractor, feasibility, other preliminary work, and administrative costs, related to the acquisition, design, engineering, grading, construction, equipping, operation, regulation, repair, improvement, redesign, reconstruction, use, or maintenance of the project.

b. The cost of the acquisition of all land, rights-of-way, property, rights, easements, and interests acquired by, for, or on behalf of the authority.

c. The cost of demolishing or removing any buildings or structures on land so acquired, including the cost of acquiring any lands to which buildings or structures may be moved.

d. The cost of diverting highways, interchange of highways, waterways, bridges, and access roads to private property, including the cost of land for easements therefor.

e. The cost of all labor, approvals, authorizations, permits of any kind, machinery, service providers, and equipment.

f. The cost of financing charges, including interest prior to and during construction and for two years after completion of construction.

g. The cost of traffic estimates, feasibility studies, engineering studies, architects, contractors, environmental analyses and consultants, design, and other related studies and analyses, and financial and legal counsel fees and expenses.

h. Plans, specifications, surveys, and estimates of cost and of revenues.

i. The cost of other expenses necessary or incident to determining the feasibility or practicability of constructing, operating, or maintaining the project.

j. The cost of any administrative expense, property, facility, or equipment, and any other expense as may be necessary or incident to the construction, operation, repair, redesign, reconstruction, improvement, equipping, or maintenance of the project at any time and from time to time.

k. The cost of issuing bonds at any time and from time to time in order to finance the construction, equipping, operation, regulation, repair, equipment, use, or maintenance of or for the project.

l. The cost of placing the project in operation.

m. Any other cost or expenditure necessary or incidental to the construction, equipping, repair, operation, regulation, use, and maintenance of the project, the financing of the project, or the placing of the project into operation, and the future operation, maintenance, repair, and equipping of the project.

n. Any obligation or expense which may be incurred by the authority for traffic surveys, borings, preparation of plans and specifications, and other engineering services in connection with the planning, construction operation or maintenance of the project shall be regarded as a part of the cost of the project.

(10) COUNTY. Baldwin County, Alabama.

(11) PROJECT. A toll road, street, highway, or bridge, and all other property, construction, equipment, and facilities necessary at any time to extend and connect the present northern terminus of the Baldwin Beach Express to U.S. Interstate Highway 65, together with any real or personal property and other related or ancillary properties, equipment, and facilities, for the use of which by the public tolls, charges, and other fees are to be collected, or for which certain payments are to be made in lieu of tolls, charges, and other fees, including, without limitation, all of the following:

a. Any road, highway, street, or bridge of any kind, construction, composition, or surface, and any facilities for providing access of any kind to, over, under, or around any road, highway, street, or bridge.

b. Any access road, causeway, parkway, access bridge, crossing, underpass, viaduct, approach, connection, or similar property of any description.

c. All other necessary supporting roads, interchanges, properties, construction, components, features, grading, landscaping, persons, facilities, and equipment, including those for maintenance, improvements, landscaping, and repair.

d. Facilities, office buildings, toll plazas, persons, and equipment for collecting tolls, fees, and charges for the use of the toll road, highway, and bridge, and other properties and facilities.

e. Any land, easement, right-of-way, interest in or right to land, and contract right or franchise that the authority shall deem necessary in connection therewith.

f. Lighting, landscaping, signage, communication facilities and other improvements and assets respecting the promotion or enforcement of safe and/or efficient vehicular transportation.

g. Improvements, property, equipment, and facilities necessary to improve, repair, reconstruct, redesign, and continue to improve, repair, reconstruct, and redesign the project after the initial completion and placing into service of the project.

h. All property, facilities, and equipment necessary at any time or from time to time in connection with the project.

(12) STATE. The State of Alabama, including the Department of Transportation, or any one or more of its various departments, agencies, public corporations, commissions, or political subdivisions.

Section 2. Certificate of Incorporation; Filing; form and contents; recordation.

(a) The chair of the commission shall proceed to incorporate the authority by filing the certificate for record in the office of the Judge of Probate of Baldwin County. The certificate shall state all of the following:

(1) That the authority is being incorporated pursuant to this act.

(2) The name of the authority, which shall be "The Baldwin County Toll Road and Bridge Authority – Baldwin Beach Express to Interstate 65 Project."

(3) The period for the duration of the authority.

(4) The location of the principal office of the authority.

(5) The number of directors, which shall be an odd number not less than three, the qualifications of the directors, the duration of their respective terms of office, which shall not be in excess of six years, and the manner of their election or appointment.

(6) Any other matters relating to the authority that the commission may choose to insert and that are not inconsistent with the laws of the state.

(b) The certificate shall be signed and acknowledged by the chair of the commission before an officer authorized by the laws of the state to take acknowledgements to deeds.

(c) When the certificate is filed for record, there shall be attached to it a certificate by the Secretary of State that the name proposed for the authority is not identical to that of any other corporation organized under the laws of the state or so nearly similar thereto as to lead to confusion and uncertainty.

(d) Upon the filing for record of the certificate, the authority shall come into existence and shall constitute a public corporation under the name set forth in its certificate. The judge of probate shall thereupon record the certificate in an appropriate book in his or her office.

Section 3. Certificate of Incorporation; Amendment; application; approving resolution; filing and recordation of certificate.

(a) The certificate, at any time and from time to time, may be amended, but only in the manner provided in this section. The board shall first adopt a resolution proposing an amendment to the certificate of the authority, which amendment shall be set forth in full in the resolution and which may include any matters that might have been included in an original certificate of incorporation.

(b) After the adoption by the board of a resolution proposing an amendment to the certificate, the chair and the secretary of the authority shall sign and file with the commission a written application in the name and on behalf of the authority, under its seal, requesting the commission to adopt a resolution approving the proposed amendment, and accompanied by a certified copy of the resolution adopted by the board proposing the amendment to the certificate, together with the documents in support of the application as the chair may consider appropriate. As promptly as may be practicable after the filing of the application with the commission, the commission shall review the application and shall adopt a resolution either denying the application or approving and authorizing the proposed amendment. The certificate may be amended only after the filing of an application therefor and the adoption by the commission of an approving resolution.

(c) The chair and the secretary of the authority shall sign and file for record in the office of the Judge of Probate of Baldwin County a certificate in the name and on behalf of the authority, under its seal, reciting the adoption of the respective resolutions by the board and by the commission and setting forth the proposed amendment. The judge of probate shall thereupon record the certificate in an appropriate book in his or her office. When the certificate has been filed and recorded, the amendment shall become effective, and the certificate shall thereupon be amended to the extent provided in the amendment.

Section 4. Board of directors; qualifications; election or appointment; terms; vacancies; reimbursement for expenses; quorum; regular, special, and called meetings; waiver of notice; record of proceedings; use as evidence; removal from office.

(a) The authority shall have a board of directors composed of the number of directors provided in the certificate, as most recently amended. All powers of the authority shall be exercised and the authority shall be governed by the board. The board shall consist of directors appointed by the commission having the qualifications and serving for the terms of office, all as shall be specified in the certificate of the authority.

(b) If, at the expiration of any term of office of any director, a successor thereto shall not have been elected or appointed, then the director whose term of office shall have expired shall continue to hold office until his or her successor shall be so elected or appointed. If, at any time there should be a vacancy on the board, whether by death, resignation, incapacity, disqualification or otherwise, a successor director to serve for the unexpired term applicable to the vacancy shall be elected or appointed by the commission. Each election or appointment of a director, whether for a full term or to complete an unexpired term, shall be made not earlier than 30 days prior to the date on which the director is to take office. Any director shall be eligible for reelection or reappointment.

(c) Each director shall serve without compensation, but shall be reimbursed for expenses actually incurred by him or her in and about the performance of his or her duties. A majority of the directors shall constitute a quorum for the transaction of business, but any meeting of the board may be adjourned from time to time by a majority of the directors present or may be so adjourned by a single director if the director is the only director present at the meeting. No vacancy in the membership of the board shall impair the right of a quorum to exercise all the powers and perform all the duties of the board. The board shall hold regular meetings at the times as may be announced by the board from time to time, may hold other meetings at any time and from time to time upon notice as may be required by the bylaws of the authority, and upon call of the chair of the authority or a majority of the total number of directors, shall hold a special meeting, none of which shall be subject to the provisions of Chapter 25A of Title 36 of the Code of Alabama 1975, or other similar law. Whenever any notice is required by the bylaws of the authority or any other law now existing or hereafter enacted to be given of any meeting of the board, the notice shall be deemed to have been conclusively provided for all purposes if it is posted on the authority's website or in a public place at the authority's principal office for not less than 24 hours prior to the time of the meeting. A waiver of notice in writing, signed, whether before or after the meeting, by the person or persons entitled to notice, shall be the equivalent to the giving of notice as provided for by the procedure above. Any matter on which the board is authorized to act may be acted upon at any regular, special, or called meeting. At the request of any director, the vote on any question before the board shall be taken by yeas and nays and entered upon the record. All resolutions adopted by the board shall constitute actions of the authority, and all proceedings of the board shall be reduced to writing and signed by the secretary of the authority and shall be recorded in the permanent records of the authority. Copies of the proceedings, when certified by the secretary of the authority, under the seal of the authority, shall be received in all courts as prima facie evidence of the matters and things therein certified.

(d) Any director may be impeached and removed from office in the same manner and on the same grounds provided in Section 175 of the Constitution of Alabama of 1901, as amended, and the general laws of the state for impeachment and removal of the officers referenced in Section 175.

(e) No director or officer of the board shall be subject to any personal, legal, or financial liability with respect to his or her capacity or service as a director or officer of the board. No director, officer, or employee of the board or the authority shall have any personal, official, legal, or financial liability with respect to the project at any time while acting in the scope of his or her employment or office.

(e) Any officer or director of the board shall have the immunity provided in Section 36-1-12, Code of Alabama 1975, while acting in the line and scope of his or her authority and no director or officer shall be personally liable for any damages or judgments related to any costs of the project.

Section 5. Officers; election; terms; duties. The officers of the authority shall consist of a chair, a vice-chair, a secretary, a treasurer, and the other officers as the board shall deem necessary or desirable. The chair and the vice-chair of the authority shall be elected by the board from its membership but neither the secretary, the treasurer, nor any of the other officers of the authority need be a director. The offices of secretary and treasurer may, but need not be, held by the same person. The chair and the vice-chair of the authority shall be elected by the board for terms of not exceeding three years each, and the secretary, the treasurer, and the other officers of the authority shall be elected by the board for the terms as it deems advisable. The duties of the chair, vice-chair, secretary, and treasurer shall be as are customarily performed by the officers and as may be prescribed by the board. The duties of any other officers of the authority shall be as are from time to time prescribed by the board.

Section 6. Powers.

(a) In addition to all other powers granted elsewhere in this act, the authority shall have all of the following powers, together with all other powers incidental or necessary to the discharge of its purpose:

(1) To adopt, alter, amend, and repeal bylaws, regulations, policies, procedures, and rules, not inconsistent with this act or its certificate, for the regulation and conduct of its affairs, personnel, and business.

(2) To acquire by purchase, devise, lease, rent, installment sale, or donation, any equipment or property necessary for the daily operations of the project and the daily business of the authority.

(3) To maintain a principal office for the conduct of its business, and, in its discretion, a website for that purpose.

(4) To sue and be sued in its own name in civil suits and actions, and to defend suits and actions against it; subject, however, to the provisions of Chapter 93 of Title 11 of the Code of Alabama 1975, which chapter is hereby made applicable to the authority.

(5) To adopt and make use of a corporate seal and to alter the same at pleasure.

(6) To participate in public transportation industry associations, groups, and conferences, and cooperate with the state and the federal government on educational, safety, and road-related initiatives, programs, and conferences.

(7) To prepare, initiate, acquire, design, lease, manage, construct, grade, build, equip, furnish, complete, operate, regulate, maintain, repair, alter, improve, equip, expand, and reconstruct the project.

(8) To issue bonds to finance the project and the costs thereof, payable from its tolls, fees, charges, other revenues, and proceeds of the bonds, and to issue refunding bonds.

(9) To receive funds, things of value, real or personal property, or assistance of any kind, including labor, equipment, and materials, from the state, the county, any other county, municipality, public corporation, political subdivision, department, or agency in and of the state, or the federal government or any agency, department, subdivision, or instrumentality thereof, by appropriation, donation, transfer, grant, lease, sale, deed, or other means, for the purpose of paying in whole or in part any bonds, paying the costs of acquiring, designing, equipping, installing, constructing, operating, or maintaining the project in whole or in part, or funding in whole or in part any other costs or expenses of the project.

(10) To fix and revise, from time to time, charge, and collect tolls, fees, and charges for transit over, under, around, or through the project, and to provide for the facilities, personnel, and equipment necessary to accomplish the purpose.

(11) To establish and revise rules for the use of the project, and to impose violations and or fines for violations thereof.

(12) To receive, acquire, take, dispose of, or hold, whether by purchase, sale, gift, transfer, foreclosure, lease, devise, option or otherwise, any real or personal property of every description, or any interest therein, and to lease, manage, improve, and dispose of the same by any form of legal conveyance or transfer.

(13) To exercise the power of eminent domain, and to acquire in the name of the authority, by purchase or otherwise, on the terms and conditions and in a manner as it may deem proper, or by condemnation in accordance with the provisions of Title 18 of the Code of Alabama 1975, and other provisions of law, insofar as the same may be applicable, any land and other property or any easement or interest therein, which it may determine is reasonably necessary for the project or for its protection, operation, maintenance, and preservation, or for the construction, relocation, maintenance, or reconstruction of any access highway, street, or road; and to acquire by purchase or by condemnation, land necessary for drainage ditches, clay, sand, and gravel pits, and lime and stone quarries, together with any other material of every character that may be necessary in the acquisition, construction, operation, and maintenance of the project.

Nothing in this act shall authorize the taking by the power of eminent domain of any right, title, or interest in real or personal property, whether recorded or unrecorded, that is held by any person or entity engaged in the generation, transmission, or distribution of electric power, except as provided by Chapter 1A of Title 19, Code of Alabama 1975.

(14) To designate points of ingress to and egress from or to the project and to prohibit entrance to or exit from the project at any point or points not so designated.

(15) To make and enter into arrangements, contracts, and agreements necessary for, or incidental to, the performance of its duties and the execution of its powers under this act, including contracts and agreements for professional services, including construction, financial, legal, accounting, environmental, maintenance, and repair, deemed necessary for the purposes by the authority. In addition to and in conjunction with other authority to enter into contracts as may be provided by law, the authority is given full authority to enter into contracts, agreements, or understandings with, but not limited to, individuals, corporations, partnerships, limited liability companies, or other private parties; public or private partnerships, or both, or other similar joint ventures; or the federal government, any state, agency, governmental or quasi-governmental body, public corporation, instrumentality, or subdivision of the United States, the state, the county, or any other state of the United States, or any agency, governmental or quasi-governmental body, instrumentality, or subdivision thereof for the purpose of developing, designing, operating, maintaining, financing, regulating, equipping, improving, repairing, and constructing the project, or any part thereof, including, but not limited to, all of the following:

a. Design-build contracts, design-build-operate contracts, design-build-own-operate contracts, design-build-own-operate-maintain contracts, or other similar arrangements or agreements pursuant to which the design, right-of-way acquisition, relocation of structures or utilities, construction, financing, ownership, management, and operation, or any part or parts thereof, of a project are accomplished by any of the aforementioned entities by or on behalf of the authority.

b. Leases, licenses, franchises, arrangements, contracts, concessions, or other agreements for the development, operation, management, equipping, servicing, repairing, maintenance, landscaping, repair, or undertaking of all or any part of the project.

c. The operation of toll plazas and collection facilities and the maintenance and repair of the project.

(16) To borrow money by issuing bonds as described herein for the purposes of financing the project and the costs thereof, and providing for the other capital needs of the authority from time to time; provided, however, that the authority shall have no power to mortgage or pledge a foreclosable interest in any of its properties, equipment, or accounts.

(17) Notwithstanding any law to the contrary, including, but not limited to, Section 16, for any entity described in subdivision (15) that owns, leases, manages, or otherwise operates the project pursuant to an agreement with the authority, to determine, set, charge, and collect tolls, shall be subject to the conditions as the authority may establish.

(18) To appoint managers, superintendents, toll-takers, professionals, service providers, and other employees and agents as may be necessary, in its judgment, to the efficient accomplishment of the purposes of this act.

(19) To receive and accept from any federal agency, grants for, or in aid of, the construction, equipping, operation, regulation, use, and maintenance of the project and to receive and accept aid or contributions from any source of either money, property, labor, or other things of value, to be held, used, and applied only for the purposes for which grants and contributions may be made.

(20) To provide for or permit the payment of so-called pass-through tolls, availability payments, or similar payments or financing methods. Pass-through tolls and availability payments mean, generally, any methodology by which the federal government, the state, or other states of the United States, or any agency, governmental or quasi-governmental body, public corporation, subdivision, or instrumentality thereof agrees to reimburse or pay a project owner or operator amounts based upon the cost of the project, actual usage of the project, or other operating standards, as opposed to imposing a toll directly on the users.

(21) To provide for employees and insurance of any kind as the project or the business, operations, or concerns of the authority or state law may require.

(22) To do all acts and things necessary or convenient to carry out the powers granted in this act.

(23) To adopt and implement investment policies for the management of the authority's funds; provided, however, that all the funds of the authority shall be maintained or invested with qualified depositories under the Security for Alabama Funds Enhancement (SAFE) Program, Chapter 14A of Title 14 of the Code of Alabama 1975, or covered by FDIC insurance protection, or guaranteed by the United States of America.

(24) To participate as a shareholder in a corporation, as a joint venturer in a joint venture, as a general or limited partner in a general or limited partnership, as a member of a nonprofit corporation, limited liability company, or public corporation, or as a member, partner, or owner of any other lawful form of business organization, in connection with the acquisition, design, development, construction, equipping, maintenance, leasing, management, administration, regulation, improvement, or operation of the project.

(25) To lend money to, to assume the indebtedness of, or to guarantee the indebtedness of any other authority, governmental entity, public corporation, or nonprofit organization for the activities of any lawful form of business organization of which the authority is a member.

(26) To make and arrange for loans, contributions to capital, and other debt and equity financing for the activities of any lawful form of business organization of which the authority is a member, and to guarantee loans and any other obligations for that purpose.

(27) To enter into any swap agreement, subject to the requirements of Article 3 of Chapter 1 of the Code of Alabama 1975.

(28) To organize, direct, participate in, be a member of, or own an interest in, any other corporation, partnership, limited liability company, joint venture, or other form of business organization, whether for-profit or non-profit, in connection with the design, development, construction, equipping, repair, maintenance, service, or operation of the project.

(29) To enter into any mortgage, security instrument or agreement, or other document securing any indebtedness or other obligation of the authority in favor of the holder or holders of any bonds or other indebtedness of the authority or an entity of which the authority is a member, owner, partner, or possesses another ownership interest in; provided, no mortgage, security instrument, or agreement shall provide a foreclosable interest on any project or portion thereof.

(b) The Legislature hereby declares that all expenditures made by the authority pursuant to the grant of power in subsection (a) are for public purposes and shall not be considered to be a lending of credit or a granting of public money or thing of value to or in aid of any private individual, association, company, partnership, or corporation, within the meaning of any state constitutional or statutory provision.

(c) The authority shall have no power to tax, and no fee, toll, or charge for use of the project set by the authority shall be considered a tax.

(d) No person who is related to a member of the authority may have any interest, direct or indirect, in any agreement or contract entered into pursuant to this subsection or in any other contract related to the project. No contract or arrangement for services of any kind of the authority, or any contract entered into by the state, the county, or any municipality, county, or other political subdivision or instrumentality in or of the state in order to assist, provide for, or accommodate, the project, shall be considered to confer any special benefit, including the grant of any exclusive franchise on or to any private corporation, company, partnership, association, or person in violation of any provision of Alabama law.

Section 7. Bonds; issuance; forms; procedures, etc.

(a) The authority may, from time to time, provide by resolution for the issuance of its bonds in one or more series by competitive or negotiated sale in order to provide funds for the purposes, needs, and costs of the project, including, without limitation, the acquisition, design, construction, equipping, repair, service, maintaining, facilities, administration, or operation of the project from time to time, and the refunding of any bonds for any purposes at any time. The principal of and the interest on any issue of bonds may be payable from, and be secured by a pledge of, tolls and other revenues of the authority, funds of the authority derived under any agreement or other instrument to which the authority is a party, and other funds or amounts of the authority pledged thereto or on behalf thereof. The proceeds of any bonds may be used or pledged for the payment or security of the principal of or the interest on bonds, including, without limitation, interest during any period of construction of the project and up to two years thereafter, for the establishment of reserves to secure payment of debt service on bonds, or for other corporate purposes as the authority may authorize in the resolution authorizing the issuance of bonds or in the trust agreement securing the same.

(b) The bonds of each issue shall be dated; shall mature at the time or times, not exceeding 75 years from their date or dates, as may be determined by the authority; and may be made redeemable before maturity, at the option of the authority, at the price or prices and under the terms and conditions as may be fixed by the authority prior to the issuance of the bonds.

(c) The authority shall determine the form of the bonds, and shall fix the denomination or denominations of the bonds and the place or places of payment of principal and interest. The bonds shall be signed by the chair of the authority or shall bear a facsimile signature thereof; and the official seal of the authority or a facsimile thereof shall be impressed, imprinted, engraved, or otherwise reproduced thereon. The official seal or a facsimile thereof shall be attested by the secretary of the authority or shall bear his or her facsimile signature. In case any officer whose signature or a facsimile of whose signature shall appear on any bonds shall cease to be an officer before the delivery of the bonds, the signature or facsimile shall nevertheless be valid and sufficient for all purposes the same as if the officer had remained in office until delivery.

(d) All bonds issued under this act shall have and are hereby declared to have all the qualities and incidents of negotiable instruments under the negotiable instruments law of the state. The bonds may be issued in registered form and provision may be made for the registration thereof. The authority may sell the bonds in the manner and for the prices as it may determine to be for the best interest of the authority.

(e) The authority, out of any funds available therefor, may purchase its bonds, which shall thereupon be cancelled.

(f) Neither the directors of the authority nor any person or officer executing the bonds shall be personally liable on the bonds, or be accountable by reason of the issuance thereof in accordance with this act.

(g) The proceeds of the bonds of each issue shall be disbursed in the manner and under the restrictions, if any, as the authority may provide in the resolution authorizing the issuance of the bonds, or in the trust agreement securing the bonds.

(h) All bonds issued pursuant to this act shall be considered valid obligations of the authority notwithstanding any procedural defect relating to the issuance thereof.

Section 8. Refunding bonds; purposes. The authority may provide by resolution for the issuance of refunding bonds for the purpose of refunding or restructuring any bonds then outstanding which shall have been issued under the provisions of this act, including the payment of any redemption premium thereon and any interest accrued or to accrue to the date of redemption of the bonds.

Section 9. Public Assistance of authority; Transfer of Property to authority.

(a) Subject to Sections 10 and 11, the state, the county, and any other county, municipality, or other political subdivision in and of the state are authorized to issue bonds, warrants, notes, agreements, contracts, and obligations in support of and in connection with the authority, the project, and the payment of any bonds of the authority.

(b) The state, the county, and any other county, municipality, agency, department, or other political subdivision in and of the state are hereby authorized to enter into funding and other agreements with the authority, and the authority is hereby authorized to enter into the agreements for the provision of funds to the authority or any affiliate thereof in connection with the design, development, equipping, provision, or operation of any project.

(c) The state, the county, and any and all counties, municipalities, and other political subdivisions in and of the state and all state departments, agencies, and commissions, notwithstanding any contrary provision of law, are hereby authorized and empowered to lease, lend, grant, sell, devise, transfer, or convey to the authority at its request, upon the terms and conditions as the proper authorities of the counties, municipalities, political subdivisions, and state departments, agencies, or commissions may deem reasonable and fair, and without the necessity for any advertisement, order of court, or other action or formality, other than the regular and formal action of the authorities concerned, any personal or real property which may be necessary or convenient to the effectuation of the authorized purposes of the authority, which real property may include public roads and other real property already devoted to public use.

Section 10. Obligations not debt of state, county or any other county, municipality, or political subdivision. All bonds of the authority, and any bonds, warrants, securities, or other contracts, agreements, or obligations of the state, the county, or any other county, municipality, or other political subdivision, agency, or department in and of the state issued or entered into in connection with the project, shall not constitute a debt of the state, the county, or any other county, municipality, political subdivision, agency, or department in and of the state, within the meaning of Sections 213, 224, or 225, or any other provision of the Constitution of Alabama of 1901, as amended.

Section 11. No Vote or Election Required. No public vote or election of any kind shall ever be necessary to authorize the issuance of any bonds by the authority, or to authorize the issuance or entering into of any bonds, warrants, securities, agreements, contracts, or other obligations by the state, the county, or any other county, municipality, political subdivision, agency, or department, in and of the state, with respect to the project as provided for herein, Sections 222 or 104(17), or any other provision of the Constitution of Alabama of 1901, as amended, notwithstanding.

Section 12. Notice of issuance of bonds; limitation on actions to contest.

(a) Any resolution authorizing the issuance of bonds by the authority under this act may contain a recital that they are issued pursuant to the provisions of this act, which recital shall be conclusive evidence that the bonds have been duly authorized pursuant to the provisions of this act, notwithstanding the provisions of any other law now in force or hereafter enacted or amended. Upon the adoption by the board of any resolution providing for the issuance of bonds, the authority, in its discretion, may cause to be published, once a week for two consecutive weeks, in a newspaper then published in the county, or, if there is no newspaper, then in a newspaper widely circulated in the county, a notice in substantially the following form, with any appropriate changes, to the extent applicable and with the blanks being properly filled in:

"The Baldwin County Toll Road and Bridge Authority – Baldwin Beach Express to Interstate 65 Project, a public corporation and instrumentality under the laws of the State of Alabama, has authorized the issuance of $__________ principal amount of revenue bonds of the authority to be dated __________, for purposes authorized in Act ________ enacted at the 2019 Regular Session of the Legislature of Alabama. Any action or proceeding questioning the validity of the revenue bonds, the source of payment therefor, or any other matter or contract relative thereto, must be commenced not later than ________, 20___, that date being within 14 days after the first publication of this notice.

The Baldwin County Toll Road and Bridge Authority –

Baldwin Beach Express to Interstate 65 Project

By ____________________________________

Chair"

(b) Any action or proceeding in any court to set aside or question the validity of the proceedings for the issuance of the bonds referred to in the notice or to contest the validity of any bonds, the source of payment therefor, or any other matter or contract relative thereto, must be commenced within 14 days after the first publication of the notice. After the expiration of that period, no right of action or defense questioning or attacking the validity of the proceedings, the bonds, the source of payment therefor, or any other the matter or contract relative thereto, shall be asserted, nor shall the validity of the proceedings, the bonds, the payment source, or relative matters and contracts, be open to question in any court on any ground whatsoever except in an action commenced within that period.

Section 13. Trust agreements securing bond issues; authorized provisions protecting holders; pledge of revenues.

(a) In the discretion of the authority, any bonds issued under this act may be secured by a trust agreement by and between the authority and a corporate trustee, which may be any trust company or bank having the powers of a corporate trust company, with a corporate trust office located within the state. The trust agreement or the resolution providing for the issuance of the bonds, may pledge or assign tolls, fees, charges, or other revenues to which the authority's right then exists or which may thereafter come into existence, and the moneys derived therefrom, and the proceeds of the bonds; provided, however, that the trust agreement or resolution shall not convey or mortgage on a foreclosable basis any part or all of the real property or fixtures on or of the project. The trust agreement or resolution providing for the issuance of bonds may contain provisions for protecting and enforcing the rights and remedies of the bondholders as may be reasonable and proper and not in violation of law; including covenants setting forth the duties of the authority in relation to the acquisition of property and the construction, improvement, maintenance, equipping, repair, operation, and insurance of the project; the rates of tolls, fees, and revenues to be charged; the payment, security, or redemption of bonds and the custody, safeguarding, and application of all moneys; and provisions for the employment of consulting engineers in connection with the construction, equipping, operation, regulation, use, and maintenance of the project. It shall be lawful for any bank or trust company incorporated under the laws of this state which may act as depository of the proceeds of bonds or of revenues to furnish the indemnifying bonds or to pledge the securities as may be required by the authority. Any trust agreement or resolution may set forth the rights and remedies of the bondholders and of the trustee and may restrict the individual rights of action by bondholders. In addition to the foregoing, any trust agreement or resolution may contain other provisions as the authority may deem reasonable and proper for the security of the bondholders. All expenses incurred in carrying out the provisions of any trust agreement may be treated as a part of the cost of the operation of the project.

(b) Any pledge of tolls, other revenues, or moneys made by the authority shall be valid and binding from the time the pledge is made. The tolls, other revenues, or moneys so pledged and thereafter received by the authority, except that part of the tolls, other revenues, or moneys which are necessary to maintain the project or projects in good operating conditions, or to pay the reasonable operating expenses of the authority, or any judgment rendered against it, shall immediately be subject to the lien of the pledge without any physical delivery thereof or further act; and the lien of any pledge shall be valid and binding as against all parties having claims of any kind in tort, contract, or otherwise against the authority, irrespective of whether the parties have notice thereof. Neither the resolution nor any trust agreement by which a pledge is created need be filed or recorded except in the records of the authority. If the trust agreement should be offered for record it shall be filed and recorded without the payment of the mortgage tax required by Chapter 22 of Title 40 of the Code of Alabama 1975. The authority, in its discretion, may enter into any supplement to the trust agreement, which supplement shall be governed, so far as may be, by the same provisions of this act as are applicable to the trust agreement.

Section 14. Bondholder's and trustee's rights of enforcement; scope of rights. Any holder of bonds issued under this act, and the trustee under any trust agreement, except to the extent that the rights herein given may be restricted by the trust agreement, by civil action, or proceeding, may protect and enforce any and all rights under the laws of this state, or granted hereunder, or under the trust agreement or the resolution authorizing the issuance of bonds and may enforce and compel the performance of all duties required by this act or by the trust agreement or resolution to be performed by the authority or by any officer thereof, including the fixing, charging, and collecting of tolls.

Section 15. Advertisement for Construction Bids; Award of Contracts; Non-applicability of competitive bid laws.

(a) Before construction is started on the project, the authority may advertise for sealed bids in the manner as it determines is most expedient. Notwithstanding anything contained in this section or in any other provision of state law to the contrary, solicited proposals under this act with respect to the project that the authority determines can be best accomplished on a design-build, design-build-own, design-build-own-operate, or design-build-own-operate-maintain basis may be evaluated and awarded by the authority based on its sole discretion.

(b) The authority, any and all contracts made by it, any entity of which the authority is a member, partner, or owner, and any and all contracts made by it, shall be exempt from the laws of the state requiring competitive bids for any contract to be entered into by municipalities, political subdivisions, or public corporations authorized by them, including, without limitation, the provisions of Articles 2 and 3 of Chapter 16 of Title 41 of the Code of Alabama 1975.

Section 16. Authority to Set and Collect Tolls.

(a) The authority may establish, maintain, fix, revise, charge, and collect tolls for the use of the project and the different parts or sections thereof, and contract with, or to lease to or from, any person, company, partnership, association, agency, department, or corporation, public or private, desiring the use of any part thereof, including the right-of-way adjoining the paved portion of approaches and access highways, streets, or roads for placing thereon telephone, telegraph, electric light or power lines or pipe lines for gas and water or for petroleum products or for any other purpose except for tracks for railroad or railway use and to fix the terms, conditions, rents, and rates of charges for such use. Tolls shall be fixed and adjusted to carry out and perform the terms and provisions of any contract with or for the benefit of bondholders. Tolls shall not be subject to supervision or regulation by any other commission, board, bureau, or agency of the state or any county, municipality, or agency thereof. The use and disposition of tolls and revenues shall be subject to the provisions of the resolution authorizing the issuance of the bonds or of the trust agreement securing the bonds.

(b) Anything to the contrary notwithstanding, the authority shall charge and collect tolls and fees with respect to the project until any bonds financing the project are fully retired.

(c) Nothing in this act shall impair the authority of an electric utility to acquire by condemnation ways, rights-of-way, and easements on, over, under, or across the project in accordance with the procedures of Chapter 1A of Title 19, Code of Alabama 1975.

Section 17. Use; Regulation; Operation; and Maintenance of project; Violations; Penalties; Law Enforcement.

(a) The authority may establish, devise, promulgate, announce, and revise reasonable rules at any time and from time to time with respect to all aspects of the project. The rules may relate to vehicular speeds, loads, weights and sizes, safety devices, rules of the road, and any other matters as may be necessary and proper to regulate traffic in the interest of safety and the maximum convenience of the persons using the project. The rules shall apply according to their terms to all sections of the project under the jurisdiction of the authority, and to its structures and other appurtenances. Insofar as the rules may be inconsistent with the rules of the state or with the laws of the state relating to offenses with respect to highways, the rules promulgated by the authority shall be controlling. The authority may prescribe reasonable rules as it may deem advisable for the protection and preservation of and for the maintenance and preservation of good order within the property under its jurisdiction and control and to prevent unnecessary trespassing upon or injury to or upon any part of the right-of-way or other property of the project. The authority shall not be subject to the provisions of Chapter 22 of Title 41 of the Code of Alabama 1975, the Alabama Administrative Procedure Act.

(b) Any rules shall provide that law enforcement officers and other emergency vehicles shall be afforded ready access while in the performance of their official duty to all property under the jurisdiction of the authority without the payment of tolls. The rules shall not take effect until published on the authority's website or posted in a conspicuous place at the authority's principal office.

(c) The authority may utilize any state, county, or municipal law enforcement officers to secure the project as it deems necessary. The police officers shall have power to prefer charges against and make arrests of any person or persons violating any law of the state, the county, or any of the bylaws or rules of the authority, as authorized herein on property owned or controlled by the authority.

(d) The authority shall have the power to set, collect, and enforce the payment of the tolls, fees, and charges authorized by this act by any lawful means. The authority, in its discretion, may determine and revise such lawful means at any time and from time to time, which may include the setting, collection, and enforcement of the tolls, fees, and charges under the authority, in the manner, and as provided, of and by Article 6 of Chapter 2 of Title 23 of the Code of Alabama 1975, the Electronic Toll Collection Act, as amended. In the event that a court of law having proper jurisdiction determines that the authority does not have any authority to set, collect, or enforce the payment of the tolls, fees, and charges, then the commission, or other lawfully elected body or other body prescribed or authorized by law, shall set, collect, or enforce the payment of tolls, fees, and charges on behalf of, and remit the same to, the authority.

(e) Anything herein to the contrary notwithstanding, the authority shall have no power to charge penalties and fines for violations in excess of any maximum amount otherwise provided for by law.

Section 18. Tax Exemption. The exercise of the powers granted by this act shall be, in all respects, for the benefit of the people of the county and the state, for the increase of their commerce and prosperity and for the improvement of their safety. Since the operation and maintenance of the project by the authority will constitute the performance of the essential functions of the county, the authority shall not be required to pay any taxes or assessments upon the project or any property acquired or used by the authority under this act or upon the income therefrom. The project, any property acquired or used by the authority under this act and the income therefrom, and the bonds issued under this act, their transfer and the income therefrom, including any profit made on the sale thereof, shall be exempt from taxation. All documents recorded by the authority of any kind shall be exempt from all mortgage, document, and recording fees, charges, and taxes of the office of the Judge of Probate of Baldwin County and the Secretary of State.

Section 18. Tax Exemption.

(a) The exercise of the powers granted by this act shall be, in all respects, for the benefit of the people of the county and the state, for the increase of their commerce and prosperity and for the improvement of their safety. Since the operation and maintenance of the project by the authority will constitute the performance of the essential functions of the county, the project, authority, and its contractors and subcontractors shall not be required to pay the taxes or assessments as specifically authorized in this section.

(b) An income, excise, or license tax or assessment may not be levied upon or collected in the state with respect to any corporate activities of the authority or any of their revenues, income, or profit. The exemptions provided in this section do not extend to the taxes or fees levied under Division 1 of Article 5 of Chapter 17 of Title 8, Code of Alabama 1975; Chapter 17 of Title 40, Code of Alabama 1975; or the Rebuild Alabama Act, Act 2019-2 of the 2019 Regular Session.

(c) No ad valorem tax or assessment for any public improvement shall be levied upon or collected in the state with respect to the project during any time that title to the project is held by the authority.

(d) No privilege or license taxes or assessments payable with respect to the recording or filing for record of any mortgage, deed, or other instrument, including, but not limited to, the privilege taxes under Chapter 22 of Title 40, Code of Alabama 1975, shall be levied, charged, or collected in connection with the recording or filing for record of any mortgage, deed, or other instrument evidencing a conveyance to or the creation of any property interest in the authority, any agreement or instrument to which the authority is a party, or any mortgage, deed, or other instrument evidencing a conveyance from the authority to another party or the creation by the authority of any property interest in another party.

(e) Any tangible personal property which becomes a permanent part of the project shall be exempt from taxation and assessment, including sales or use taxes.

(f) The project, authority, and its contractors and subcontractors shall be exempt from any tax imposed by Section 40-23-50, Code of Alabama 1975, for the gross proceeds of the sale of materials or the gross receipts of services that are related to the construction of the project.

(g) The interest paid or accrued on all bonds, notes, or other obligations issued by the authority shall be free from taxation by the state or a county, municipality, or other political subdivision or instrumentality thereof.

(h)(1) The Department of Revenue shall issue a certificate of exemption to the authority and each contractor and subcontractor for each project for the purchase of building materials, construction materials and supplies, and other tangible personal property that becomes part of the project. Any use of the certificate issued under the authority of this subsection and subsection (e) shall be subject to the reporting and penalty provisions of Section 40-9-14.1, Code of Alabama 1975. Any holder or user of the certificate shall maintain an accurate accounting of the purchase and use of the property and shall file, in a manner prescribed by the Department of Revenue, reports of all of the purchases.

(2) It is the intent of the Legislature for this subsection to lower the administrative cost for the project and authority and its contractors and subcontractors.

(i) Nothing in this section exempts any contractor or subcontractor from state income taxes.

(j) The Department of Revenue may adopt rules to implement, administer, and provide for accurate accounting and enforcement of this section.

Section 19. Legal Investments. Bonds issued under this act are hereby made legal investments for all banks and insurance companies organized under the laws of the state. Unless otherwise directed by the court having jurisdiction thereof or the document that is the source of authority, a trustee, executor, administrator, guardian, or one acting in any other fiduciary capacity, in addition to any other investment powers conferred by law and with the exercise of reasonable business prudence, may invest trust funds in bonds of the authority.

Section 20. Audit; Expenses. The authority shall pay and provide for a fiscal year audit of its books and records by any private firm of certified public accountants selected by the board.

Section 21. Non-profit corporation. The authority shall be a non-profit public corporation and political subdivision. None of the earnings of the authority shall inure to the benefit of any private party or person.

Section 22. Dissolution of authority. At any time when the authority does not have any bonds outstanding, the board may adopt a written resolution, which shall first be approved in writing by resolution of the commission, duly entered upon its minutes, declaring that the authority shall be dissolved. Upon the filing for record of a certified copy of the resolution in the office of the Judge of Probate of Baldwin County, the authority shall thereupon stand dissolved, and in the event that it owned any assets or property at the time of its dissolution, the title to all its assets and property, subject to any constitutional provision or inhibition to the contrary, shall thereupon vest in the county.

Section 23. Construction of act. Insofar as the provisions of this act may be in conflict or inconsistent with any provisions of any other law concerning actions authorized by this act, the provisions of this act shall control and govern, any other provision of law to the contrary notwithstanding. Subject to the foregoing, this act does and shall be construed to provide an additional and alternative method for the doing of the things authorized thereby and shall be regarded as supplemental and additional to other laws.

Section 24. The provisions of this act are severable. If any part of this act is declared invalid or unconstitutional, that declaration shall not affect the part which remains.

Section 25. This act shall become effective immediately upon the ratification of a constitutional amendment proposed in SB__ or HB__ of the 2019 Regular Session of the Legislature authorizing the Legislature to provide by local law for the incorporation in Baldwin County of the toll road and bridge authority provided by this act.


Baldwin County
Highways, Roads, and Bridges
Toll Roads and Bridges
Bonds
Authorities