Current Status Introducing Body:Senate Bill Number:374 Primary Sponsor:Wilson Committee Number:15 Type of Legislation:GB Subject:Tollroad Act of 1991 Residing Body:Senate Current Committee:Transportation Computer Document Number:374 Introduced Date:Jan 08, 1991 Last History Body:Senate Last History Date:Jan 08, 1991 Last History Type:Introduced and read first time, referred to Committee Scope of Legislation:Statewide All Sponsors:Wilson Rose Type of Legislation:General Bill
Bill Body Date Action Description CMN
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374 Senate Jan 08, 1991 Introduced and read first 15
time, referred to Committee
374 Senate Dec 10, 1990 Prefiled, referred to 15
Committee
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TO AMEND CHAPTER 5, TITLE 57, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE STATE HIGHWAY SYSTEM, BY ADDING ARTICLE 14 SO AS TO ENACT THE TOLLROAD ACT OF 1991.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. The General Assembly finds that there is a compelling public need for rapid construction of safe and efficient highways for the purpose of travel within the State, and that it is in the public interest to encourage construction of additional, safe, convenient, and economic highway facilities by private parties, provided that adequate safeguards are provided against default in the construction and operation obligations of the operators of roadways. The public interest shall include without limitation the relative speed of the construction of the project and the relative cost efficiency of private construction of the project. Accordingly, the General Assembly finds that this article is necessary for the public convenience, safety, and welfare.
SECTION 2. Chapter 5, Title 57 of the 1976 Code is amended by adding:
Section 57-5-1910. This article may be cited as the Tollroad Act of 1991.
Section 57-5-1915. As used in this article, unless the context requires a different meaning:
(1) 'Certificate' means the certificate of authority awarded pursuant to this article which allows operation of a roadway.
(2) 'Department' means the South Carolina Department of Highways and Public Transportation.
(3) 'Highway' means the entire width between the boundary lines of every way or place of whatever nature open to the use of the public under the provisions of this article for purposes of vehicular travel in this State.
(4) 'Operation' means all functions and pursuits of the operator of any roadway under this article which are directly or indirectly related to acquisition, approval, construction, enlargement, maintenance, patrolling, toll collections, or connections of the roadway or highway with any other highway or with any street, road, or alley. This term also includes, without limitation, operation of the roadway and management of the affairs of the operator.
(5) 'Operator' means the corporation which submits to the department an application for authority to construct, operate, or enlarge a roadway, and which, after issuance of a certificate of authority, is responsible for operation of any roadway under the provisions of this article.
(6) 'Person' includes any natural person, corporation, partnership, joint venture, and any other business entity; however, 'person' does not include the State or any political subdivision or agency thereof, or other corporate body.
(7) 'Roadway' means that portion of a highway improved, designed, or ordinarily used for vehicular travel, exclusive of the shoulder. A highway may include two or more roadways if divided by a physical barrier or barriers or unpaved areas. 'Roadway', as used in this article, includes only privately owned or operated highways for use of which a toll or similar single-use charge is imposed.
(8) 'Toll' means the fee charged by the operator for a single use of all or a portion of the roadway.
Section 57-5-1920. No person may construct, operate, or enlarge any roadway, as defined in Section 57-5-1915(7) within the State without first having obtained a certificate of authority from the department authorizing the construction, operation, or enlargement.
Section 57-5-1925. A person may apply to the department for a certificate of authority to construct or operate a roadway, or to extend or enlarge a roadway for which a certificate has been issued under this article. If the department determines in writing, after notice and opportunity for a hearing that the application is complete, that approval of the application is in the public interest, and that the applicant has complied with the provisions of this article, it shall approve the application, with or without modification, unless it receives an adopted resolution of the governing body of any county or municipality through which the roadway passes, requesting the department to deny the application, in which case the department shall deny it. If the application is approved the operator may construct the roadway. Upon completion of construction and the opening of the roadway to the public, the roadway must be kept at all times open for use by the public and made accessible to the public, upon payment of the toll established by the operator, but the roadway may be partially or completely closed, temporarily, with the concurrence of the department, to protect the public safety or for reasonable construction or maintenance procedures.
Section 57-5-1930. The department may charge a reasonable application fee to cover the costs of processing and reviewing the application. The application for a certificate of authority must contain the following material and information:
(1) the geographic area to be served by the roadway and a survey indicating the route of the roadway;
(2) a list of the property owners through whose property the roadway or highway will pass or whose property will abut the roadway or highway;
(3) the method by which the operator will secure all rights-of-way required for the roadway, including a description of the nature of the interest in the lands to be acquired, which provides, at a minimum, for permanent dedication so long as the lands are used for transportation purposes;
(4) the comprehensive plan or plans for all counties and municipalities through which the roadway will pass and an analysis which shows that the roadway conforms to these comprehensive plans;
(5) the operator's plan for financing the proposed construction or enlargement of the roadway, including proposed tolls to be charged for use of the roadway, projected amounts to be collected from the tolls and anticipated traffic volume and detailed plans for distribution of funds, including the priority in which necessary expenditures will be made;
(6) the operator's plan for operation of the proposed roadway or roadway enlargement;
(7) a list of all permits and approvals required for construction of the roadway from local, state, or federal agencies and a schedule for securing the approvals;
(8) an overall description of the project, the project design, and all proposed interconnections with the state highway system, including any interstate highway, or secondary system of highways or the streets or roads of any county and municipality not within the state highway system;
(9) a list of public utility facilities to be crossed and plans for the crossings or relocations of the facilities;
(10) a certificate of the operator that the roadway will be designed and constructed to meet department standards, and substantially in accordance with a proposed timetable which is agreeable to the department, and that the operator will provide a design, review, and inspection agreement with the department which must provide that the department shall authorize construction upon review and approval of the plans and specifications for the roadway and its interconnection with other roads, and that it must inspect periodically the progress of the construction work to ensure its compliance with the department standards; and
(11) completion and performance bonds in form and amount satisfactory to the department.
Section 57-5-1935. Eminent domain may not be exercised by the operator for the purpose of acquiring any lands or interests in land, nor any other property used by the operator for the construction or enlargement of a roadway pursuant to this article.
Section 57-5-1940. The department shall:
(1) review and approve or deny the application;
(2) supervise and control the operator in the performance of its duties under this article; and
(3) correct any abuse in the performance of the operator's public duties.
The department shall require from the operator a verified report describing the nature of its contractual and other relationships with individuals or entities contracting with the operator for the provision of significant financial, construction, or maintenance services. The department shall review the report and other materials it considers necessary for the purpose of determining improper or excessive costs, and shall exclude from the operator's costs any amounts which it finds are improper or excessive. The department also shall approve or revise the toll rates charged by the operator. Initial rates must be approved if they appear reasonable to the use in relation to the benefit obtained, not likely to materially discourage use of the roadway and provide the operator no more than a reasonable rate of return as determined by the department. Thereafter, the department, upon application, complaint, or its own initiative and after investigation, may order substituted for any toll being charged by the operator, a toll which is set at a level which is reasonable to the user in relation to the benefit obtained and which will not materially discourage use of the roadway by the public and which will provide the operator no more than a reasonable return as determined by the department.
Section 57-5-1945. (A) The operator shall operate the roadway and charge tolls for its use and shall pledge any revenue net of operational expenses realized from tolls charged for the use of the roadway in order to secure repayment of any obligations incurred for the construction, enlargement, or operation of the roadway. The debts or obligations of the operator are limited to an amount not to exceed the cost of construction plus an amount for issuance cost and other financing expenses, and a reasonable amount for reserve funds. The State must not obligate its full faith and credit on any financing of the operator and assumption of operation of the project does not obligate the State to pay any obligation of the operator whether secured or otherwise, from sources other than toll revenue. Subject to applicable permit requirements, the operator may cross any canal or navigable watercourse if the crossing does not unreasonably interfere with navigation and use of the waterway. In operating the roadway, the operator may:
(1) classify traffic according to reasonable categories for assessment of tolls;
(2) with the consent to the department, make and enforce reasonable regulations, including regulations; which:
(a) set maximum and minimum speeds that must conform to department and state practices;
(b) exclude undesirable vehicles or cargoes or materials from the use of the roadway; or
(c) establish commuter lanes for use during all or any part of a day and limit the use of those lanes to certain traffic.
(3) The enumeration of powers in this subsection does not limit the power of the operator to do anything it considers necessary and appropriate in the operation of the roadway, if the practice is reasonable and nondiscriminatory.
(B) The operator shall:
(1) file and maintain at all times with the department an accurate schedule of rates charged to the public for use of all or any portion of the roadway and it also shall file and maintain a statement that the rates shall apply uniformly to all users within any reasonable classification the operator elects to implement. These rates may be neither applied nor collected in a discriminatory fashion. Free vehicular passage is permitted for public officers and employees and law enforcement and public safety-related personnel whose official duties require use of the roadway.
(2) construct and maintain the roadway for anticipated use according to appropriate standards of the department for public highways operated and maintained by the department, and enlarge or expand the road when unsatisfied demand for use of the roadway makes it economically feasible to do so. The operator shall agree with the department for inspection of construction work by the department at appropriate times during any construction or enlargement. In addition, it shall cooperate fully with the department in establishing any interconnection with the roadway that the department may make.
(3) contract with the State for enforcement of the traffic and public safety laws by state authorities, and may similarly contract with appropriate political subdivisions for those portions of the roadway within counties and municipalities.
Section 57-5-1950. If the department approves of the project, project design, and connections of the roadway, before granting the certificate of authority, it shall enter into a comprehensive agreement with the applicant which provides, inter alia, that the department shall review and approve plans and specifications for the roadway to determine if they conform to state practices; that the department shall inspect and approve construction of the roadway to determine if it conforms to the plans and specifications or state construction and engineering standards; that the department, through the life of the roadway project, shall monitor the maintenance practices of the operator and take appropriate actions to ensure the performance of maintenance obligations; and that the department is reimbursed its direct project costs, by the operator, for the services performed by the department. The agreement also must provide, inter alia, that the operator shall establish and fund accounts which must ensure that funds are available to meet the obligations of the operator, including reasonable reserves for contingencies and maintenance replacement activities. The approval of plans and specifications, and construction may be undertaken in phases, but no construction may commence until approval of plans including that phase of construction. The services for which the department must be reimbursed include project development costs, such as those attendant to preparation of environmental impact statements, which are necessary for the construction of the roadway by a private operator but have been performed by the department. The agreement may include a provision that the department shall perform services necessary for project development on behalf of the operator, and in such a case, the department must be reimbursed fully by the operator for its direct costs.
Section 57-5-1955. An operator who constructs, operates, or enlarges a roadway pursuant to this article shall secure and maintain policies of public liability insurance in a form and amount satisfactory to the department and sufficient to insure coverage of tort liability to the public and employees, and to enable the continued operation of the roadway. Proofs of coverage and copies of policies must be filed with the department.
Section 57-5-1960. (A) Before the issuance of a certificate of authority by the department and contemporaneously with the filing of any application materials with the department, the applicant shall provide the governing body of each county and municipality through which any part of the roadway passes with the application information and materials required by Section 57-5-1930 and an overall description of the project and its benefits. The governing body may participate in procedures conducted by the department concerning the application.
(B) When the operator wishes to occupy lands owned by any county or municipality, including the streets or roads of any county or municipality it first shall obtain a franchise allowing the occupancy or it may obtain the necessary interests through grant or other appropriate conveyance to the operator for a period of time not to exceed the term of the certificate.
(C) Where the applicant wishes to interconnect with the streets or roads of a county or municipality, and the locality is willing to allow its interconnection, it shall submit appropriate plans for the connection to the governing body, which shall approve the connection if it determines that the connection meets all appropriate engineering requirements.
(D) The operator and the county or municipality also may agree on any supplemental or related matters according to terms and conditions as are reasonable, appropriate, and in the public interest, and a county or municipality may enter into such an agreement.
Section 57-5-1965. The applicant shall include in the application a list of public utility facilities and rights-of-way to be crossed or otherwise affected in the construction of the roadway and a plan and schedule for the crossings. The operator and each public utility whose works are to be crossed or affected shall cooperate fully with the other in planning and arranging of the manner of the crossing or relocation of the facilities. A public utility possessing the powers of eminent domain expressly is granted these powers in connection with the moving or relocation of facilities to be crossed by the roadway or which must be relocated to the extent that the moving or relocation is made necessary by construction of the roadway, which includes construction of temporary facilities for the purpose of providing service during the period of construction. If the applicant or operator and the public utility whose facilities are to be crossed or relocated is not able to agree upon a plan for the crossing or any necessary relocation, either party may request the department to inquire into the need for the crossing or relocation and to decide whether the crossing or relocation should be compelled, and if so, the manner in which the crossing or relocation is to be accomplished and any damages due either party arising out of the crossing or relocation. The department may employ expert engineers to examine the location and plans for the crossing or relocation, hear any objections and consider modifications, and make a recommendation to the commission. In such a case, the cost of the experts must be borne equally by the applicant and the public utility, unless the department determines that it would be unjust, in which case the cost must be borne as the department decides. Railroads are included within the scope of the term 'public utility' for purposes of this section.
Section 57-5-1970. No crossing of a railway, highway, street, road, or alley may be at grade. Crossings must pass above or below the railway, highway, street, road, or alley, and those crossings are permitted, subject to the provisions of this article.
Section 57-5-1975. In the event of material and continuing default in the performance of the operator's construction or operation duties or failure of the operator to comply with the terms of its agreement with the department, or if construction has not begun within two years of the issuance of a certificate, the department, after a hearing before the Highways and Public Transportation Commission in which the applicant or operator has notice and opportunity to participate, may revoke the certificate of authority for the roadway, declare a default in the construction or operation of the roadway, and make or cause to be made the appropriate claim or claims under any completion or performance bonds, or take such other action as it considers appropriate, under the circumstances. In case of revocation of a certificate, the applicant or operator shall thereafter be without any authority to construct or operate the roadway, and the department may take over construction and operation of the roadway, and may proceed to take any steps which are in the public interest, including completion of construction or additions to the roadway, closing the roadway, or any intermediate step. The department shall receive the full proceeds of any payments due to claims against bonding companies or sureties for this purpose. In addition, in such event the operator shall grant to the department all of his right, title, and interest in the assets of the corporation. Nothing in this article may be construed to limit the department's exercise of the power of eminent domain. In either case, the operator may obtain compensation from the department for the assets, except that the department first shall deduct from the value of the assets all of its costs incurred in connection with completion or fulfillment of the unperformed obligations of the operator, and any other costs associated with the events contemplated in this section. The department shall take into account monies received from the proceeds of any payment or completion bond in calculating the amount due the operator.
Section 57-5-1980. (A) The roadways and highways constructed or operated under this article may be policed by officers of the State Highway Patrol, even though all or some portion of any such projects lie within the limits of a municipality or county, and just as if the roadway and highway were a part of the state highway system. The operator and the State Highway Patrol shall agree upon reasonable terms and conditions pursuant to which the activities contemplated in this section may take place. The officers must be under the exclusive control and direction of the State Highway Patrol and are responsible for the preservation of public peace, prevention of crime, apprehension of criminals, protection of the rights of persons and property, and enforcement of the laws of the State, within the limits of any highway and roadway. All other law enforcement officers of the State and of each county and municipality through which any roadway extends have the same powers and jurisdiction within the limits of the roadways and highways as they have beyond the limits and shall have access to the highway and roadway at any time for the purpose of exercising such powers and jurisdiction. This authority does not extend to the private offices, buildings, garages, and other improvements of the operator to any greater degree than the police power extends to any other private buildings and improvements.
(B) The traffic and motor vehicle laws of the State apply to persons and motor vehicles on the roadway or highway, and the powers of arrest of law enforcement officers are the same as those applying to conduct on the state highway system. Punishment for offenses is as prescribed by law for conduct occurring on the state highway system.
Section 57-5-1985. Within ninety days of the completion and closing of the original permanent financing, the operator shall provide full details of the financing, including the terms of all bonds, to the department, and shall certify the date on which all debt will be retired. The department may require that the operator provide copies of any relevant documents, and shall review the financing and determine the date on which all bonds or other debt constituting the original permanent financing must be retired. After establishing this date, the department shall enter an order terminating the operator's authority pursuant to the certificate of authority on a date which is ten years from the date on which all of the original permanent financing is retired completely. At the request of the operator or the department, or on its own initiative, the department may revise its order to modify the date for termination of the certificate of authority in order to take into account any refinancing of the original permanent financing, where the refinancing or modification is in the public interest, or any refinancing for the purpose of expansion, or early retirement of the debt. Upon the termination of the certificate of authority, the authority and duties of the operator under this article shall cease, and the highway assets and improvements of the operator must be dedicated to the State for highway purposes.
Section 57-5-1990. There is a fund established by the department from the toll revenues described in this section, for the purpose of funding transportation improvements which are related to or affected by the toll road. Toll rates must be set in multiples of five cents; however, the department shall order that that percentage of each toll by which the toll established exceeds that necessary to provide the operator with an amount necessary to meet the operator's obligations under Section 57-5-1945 and earn a reasonable return must be committed to the fund. In addition the operator, the department, and the counties and municipalities through which the road passes jointly may petition the department to establish an additional toll amount to be committed to this fund."
SECTION 3. This act takes effect upon approval by the Governor.