Bill S.10

SENATE DOCKET, NO. 2049        FILED ON: 2/5/2009

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 10

The Commonwealth of Massachusetts

_______________

PRESENTED BY:

Steven A. Baddour

_______________

To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
              Court assembled:

              The undersigned legislators and/or citizens respectfully petition for the passage of the accompanying bill:

An Act Moderni zing the Transportation Systems of the Commonwealt h.

_______________

PETITION OF:

 

Name:	District/Address:
Steven A. Baddour	First Essex

The Commonwealth of Massachusetts
 

_______________

In the Year Two Thousand and Nine

_______________

 

An Act Moderni zing the Transportation Systems of the Commonwealth.


 

Whereas , The deferred operation of this act would tend to defeat its purpose, which is forthwith to reorganize and restructure transportation agencies in  the Commonwealth to help address anticipated funding deficiencies, therefore it is h ereby declared to be an emergency law, necessary for the immediate preservation of the public convenience.

 

              Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

SECTION 1.   Section 8C of chapter 6A of the General Laws, inserted by chapter 233 of the acts of 2008, is hereby amended by striking out, in the first paragraph, the words “the commissioner of highways,” and inserting in place thereof the following words:- the adminis trator of the division of roads and bridges of the Massachusetts Surface Transportation Authority.

SECTION 2.   Chapter 6A of the General Laws, as amended by chapter 86 of the acts of 2008, is hereby amended by striking out sections 19 and 19A and inserting in place thereof the following 3 sections:-

Section 19. (a) The executive office of transportation shall serve as the principal agency of the executive department for the following purposes: (1) developing, coordinating, administering and managing transpo rtation policies, planning and programs related to design, construction and maintenance; (2) supervising and managing the organization and conduct of the business affairs of the departments, agencies, commissions, offices, boards, divisions, and other enti ties within the executive office to improve administrative efficiency and program effectiveness and to preserve fiscal resources; (3) developing and implementing effective policies and programs to assure the coordination and quality of roadway, transit, ai rport and port infrastructure and security provided by the secretary and all of the departments, agencies, commissions, offices, boards, divisions, authorities and other entities within the executive office.

              (b) The following state agencies shall be withi n the executive office of transportation: the government center commission established by section 1 of chapter 635 of the acts of 1960, the registry of motor vehicles and all other state agencies within the department, except the division of motorboats and the division of waterways; and the Massachusetts aeronautics commission. The Massachusetts Surface Transportation Authority, Massachusetts Bay Transportation Authority, the Massachusetts Port Authority, the Massachusetts Turnpike Authority and any duly es tablished regional transportation authority shall also be within the executive office of transportation.

              (c) The governor shall appoint a secretary of transportation, who shall serve at the pleasure of the governor and shall act as the executive officer i n all matters pertaining to the administration, management, operation, regulation, planning, fiscal and policy development functions and affairs of the departments, agencies, commissions, offices, boards, divisions, and other agencies within the executive office.

              (d) The secretary may: (1) operate and administer the programs of roadway design, capital improvement, development, and planning through the other agencies within the executive office, as appropriate; (2) coordinate and supervise the administratio n of the executive office and its agencies to promote economy and efficiency and to leverage federal funding; (3) develop and administer a long-term state-wide transportation plan for the commonwealth, as provided for in section (f); (4) develop, based on a public hearing process, procedures to be used for transportation project selection; (5) establish criteria for project selection to be used in the procedures developed pursuant to clause (4); (6) enter into agreements with commissions, offices, boards, d ivisions, authorities and other entities within the executive office to improve departments, agencies, administrative efficiency and program effectiveness and to preserve fiscal resources; (7) pursuant to chapter 30A, make, amend and repeal rules and regul ations for the management and administration of the executive office and agencies within the executive office; (8) execute all instruments necessary for carrying out the business of the executive office and its agencies; (9) acquire, own, hold, dispose of, lease and encumber property in the name of the executive office and its agencies; (10) enter into agreements and transactions with federal, state and municipal agencies and other public institutions and private individuals, partnerships, firms, corporatio ns, associations and other entities on behalf of the executive office or its agencies; (11) apply for and accept funds, including grants, on behalf of the commonwealth in accordance with applicable law; (12) conduct research, surveys, experimentation, eval uation, design and development, in cooperation with the Massachusetts Surface Transportation Authority, and other governmental agencies and private organizations when appropriate, with regard to mass transportation facilities, equipment and services. The s ecretary may delegate any of the foregoing powers to an officer having charge of a department, office, division or other administrative unit within the executive office.

              (e) In exercising its powers under this section, the executive office shall have as a primary goal the reduction of greenhouse gas emissions, particulates and other pollutants.   The secretary shall collaborate with the executive office of environmental affairs, the bureau for environmental health within the department of public health and other state or federal agencies to reduce greenhouse gas emissions to the limits established in chapter 21N.

              (f)  (1) Every five calendar years, starting no later than April 30, 2010,   the secretary of the executive office of transportation shall, after co nducting public hearings, prepare and publish in the Massachusetts Register a comprehensive state transportation plan for the five succeeding fiscal years, beginning with the period fiscal year 2011 to 2015, inclusive. The plan shall be consistent with suc h priorities as may be established by legislation. Said plan shall be designed to ensure construction and maintenance of a safe, sound and efficient public highway, road and bridge system, to relieve congestion, to reduce greenhouse gas emissions, particul ates and other pollutants, and to improve the quality of life in the commonwealth by promoting economic development and employment in the commonwealth by meeting, cost effectively, the diverse transportation needs of all residents of the commonwealth, incl uding urban, suburban and rural populations. Said plan shall also include an engineering assessment to anticipate highway, road and bridge needs throughout the commonwealth as determined by objective engineering measurements of condition, safety and servic e. The secretary shall consult with the executive offices of environmental affairs and of economic affairs in the development of said plan.

Said plan shall provide for meeting not less than 5 percent annually of the estimated construction, reconstruction and repair needs of the public highways and bridges of the commonwealth, its counties, cities and towns, estimated as follows. Before the secretary publishes or updates said plan, the Massachusetts Surface Transportation Authority shall determine and certi fy to the secretary its estimate of the total value of all construction, reconstruction and repair needs of the commonwealth’s highway and bridge infrastructure. The total value estimate shall be based on satisfying current safety and maintenance standards of the Federal Highway Administration and the American Association of State Highway and Transportation Officials. The estimate shall be substantiated by documented objective engineering estimates which shall be made available for public review.

The execu tive office and the Massachusetts Surface Transportation Authority shall report annually not later than February 1 to the house and senate committees on ways and means and the joint committee on transportation of the general court on their compliance with the plan and their efforts to satisfy the 5 percent requirement of the preceding paragraph.

(2) The executive office shall establish a program for mass transportation consistent with the provisions of this chapter. The program for mass transportation and a ny revisions thereto shall be submitted for comment and recommendation to the Mass Transit A dvisory board not less than sixty days prior to the adoption thereof .  The executive office shall prepare a written response to reports submitted to it by the advis ory board which response shall state the basis for any substantial divergence between the actions of the executive office and the recommendations contained in such reports of the advisory board. Said program shall be reviewed not less than every five years to evaluate the achievement of its aims and to re-evaluate its conformity with the provisions of this chapter.

Said program for mass transportation and any plans specified therein shall be impl emented by the mass transportation capital investment program, including a rolling five-year plan. The capital investment program and plans of the executive office shall be based on an evaluation of the impact of each proposed capital investment on the eff ectiveness of the commonwealth’s transportation system, service quality standards, the environment, health and safety, operating costs, the prevention or avoidance of deferred maintenance, and debt service costs. Capital investments that result in the grea test benefits with the least cost, transit commitments made in connection with the central artery project, so-called, capital improvements required under the Americans with disabilities act, and capital expenditures for an ongoing schedule of maintaining t he equipment and mass transportation facilities of the Massachusetts Bay Transportation Authority, or any successor agency shall receive the highest priority under said capital investment program and plans.

Said ongoing schedule of maintenance shall be de signed to prevent the deferral of routine and scheduled maintenance, and shall be undertaken prior to investing in new facilities or service expansion, unless the latter required by law or can be demonstrated to be cost-effective, environmentally beneficia l or produce quantifiable savings.

The capital investment program shall be prepared on an annual basis, under the direction, control and supervision of the executive office. The program, including plans for each project funded therein, shall be available for public inspection and submitted to the authority, the joint committee on transportation and the senate and house committees on ways and means not later than 60 days prior to the start of the fiscal year.

Said program for mass transportation, the capital investment program and the plans for each such project funded therein shall be developed in conjunction with other transportation programs and plans proposed by the executive office, including any plans of regional transit authorities established pursuant to chapter 161B. Said programs shall be further developed in consultation and cooperation with the division of public transit, and in consultation with the department of housing and community development, t he metropolitan area planning council, the executive office of environmental affairs, and such other agencies of the commonwealth or of the federal government as may be concerned with said program and plans.

The plans for each project included in the capi tal investment program shall identify the purpose and intended benefits of each project, the total budget and timeline necessary to complete each project, the amount of said total which is budgeted for each project in the next fiscal year, the operating co sts and savings, if any, anticipated to be incorporated in the operating budget of the authority upon completion of each project, the proposed operating costs and costs of routine and scheduled maintenance associated with each project upon its completion, and the expected useful life of each project.

The capital investment program shall be based on a rolling five-year plan, updated annually, that establishes the priorities and cashflow needs of the capital borrowing program of the authority. The five year plan shall be accompanied by a timeline for the implementation of the projects and priorities established therein and comprehensive financial estimates of the capital and operating costs and revenues associated with each project established by the plan.

T he executive office shall conduct a series of public meetings within 30 days of issuance of an initial draft of the capital investment program and shall submit a final capital investment program to the Mass Transit advisory board, for its review, no later than January 15 of each year.

The authority shall be responsible for th e architectural, engineering design, and the construction of mass transportation facilities and for the operation thereof.

(3)  The secretary, in consultation with the authority, shall promulgate such rules, regulations and procedures, including public hearings, as are necessary and appropriate to provide the following parties the timely opportunity to participate in the development of major transportation projects, as defined by the se cretary, and to review and comment thereon: (i) state, regional and local agencies and authorities affected by said projects; (ii) elected officials and riders or potential riders from cities and towns affected by said projects; (iii) other public and priv ate organizations, groups and persons who are affected by, and who have provided the secretary with reasonable notice of their desire to participate in the development of the design of said projects. In this section, the words “timely opportunity” shall me an sufficiently early in the design process so as to permit comments to be considered prior to the final development of or commitment to any specific design for such project.

(4) Prior to the final approval of any transportation infrastructure project, in cluding mass transit expansion or the construction of new roadways with a projected capital cost of more than $25,000,000, or the expending of any funds for the planning, design and construct ion of such projects, the Secretary of Transportation shall reque st that the administrator of the appropriate Division of the Massachusetts Surface Transportation Authority, in consultation with the Chief Executive Officer of the Authority,  prepare a fiscal analysis, including life cycle costs,  demonstrating that suff icient revenues exist, or will be generated to operate and maintain in a state of good repair such a new transportation asset.  This analysis shall be also be submitted to the advisory board s of the respective division s of the Massachusetts Surface Transpo rtation Authority. 

If any such project for the expansion of mass transit has a projected total cost in excess of $200,000,000, the Secretary of Transportation shall submit the analysis to the Secretary of Administration and Finance so that he may determi ne which costs, if any, will become part of the Commonwealth’s plan of capital expenditures.  

              (g) Nothing in this chapter shall be construed to confer any powers or impose any duties upon the secretary with respect to the foregoing agencies and authorit ies except as expressly provided by law.

 

Section 19A.  (a) The executive office shall take such steps as may be necessary to provide for the development, promotion, preservation, and improvement of an adequate, safe, efficient and convenient rail system for the movement of passengers and freight in the commonwealth. In carrying out the purposes of this chapter, the executive office shall seek to encourage and develop rail services which promote and maintain the economic wellbeing of the citizens of the co mmonwealth, and which preserve the environment and the commonwealth’s natural resources.

(b) The executive office or the Massachusetts Surface Transportation Authority acting pursuant to paragraph (6) of subsection (d) is hereby authorized and directed to expend such funds as may be appropriated or otherwise made available for the acquisition, construction, preservation, rehabilitation, reconstruction, or other improvement, whether directly, jointly or under contract with other public or private parties, of land, and rail rights-of-way and related facilities or equipment, including but not limited to spurs, sidings and bridges, and for such other purposes, including, without limitation, planning, engineering and administrative purposes, as are incidental the reto; provided that any preservation, rehabilitation, reconstruction, or other improvement of land or of a rail right-of-way and related facilities or equipment shall not be authorized prior to the acquisition of said land, right-of-way and related facilit ies or equipment.

Subject to any other applicable provisions of law regarding the disposition and use of state property, the executive office may, in the course of exercising its responsibilities of property management of state-owned railroad rights-of-wa y pursuant to this chapter: (a) set fees for the processing of applications to lease, license, or otherwise use said property; and (b) charge rent for same. Said fees shall be based on the administrative costs necessary to process said applications. Said r ents shall be calculated as required under other applicable requirements of state law. Receipts from said applications and rents shall be paid into the treasury of the commonwealth and may be expended, subject to appropriation, for the purpose of property management and maintenance on railroad properties owned by the executive office on behalf of the commonwealth.

              (c) The executive office or the Massachusetts Surface Transportation Authority acting pursuant to paragraph (6) of subsection (d) may enter int o contracts or agreements to provide financial assistance, from such funds as may be provided for the purpose, for all or part of the costs of maintaining rail rights-of-way or related facilities or equipment, or operating rail services in the commonwealth .

Any such contracts or agreements shall be subject to the following limitations: (i) in determining whether such assistance is necessary or appropriate under this chapter with respect to an operating agreement with a private transportation company, and i n determining the terms and conditions under which such assistance shall be given, the secretary shall review the transportation operations of such company and its affiliates and shall make a finding that such assistance will not permit the applicant compa ny to make more than a reasonable return overall; and (ii) any such assistance shall cover only those services which the secretary determines to be in the public interest.

 

              (d) The secretary, in addition to any other powers and duties conferred or impose d upon him by this chapter or any other general or special law, shall have the following powers and duties:

(1) To serve as the principal source of rail transportation planning for the commonwealth. In doing so, the secretary may conduct research, surveys , demonstration projects or studies in cooperation with federal, state, regional or local agencies, or appropriate private parties; and shall be responsible for the preparation of continuing, comprehensive and coordinated rail transportation proposals, pla ns, programs and projects. The secretary shall submit said proposals, plans, programs and projects for such review or consideration by other governmental agencies as may be required by law or deemed appropriate by the secretary; and shall prepare such plan s and programs in coordination with related land use and other development plans, so far as practicable.

(2) To apply for, accept and expend on behalf of the commonwealth, any gift, loan or grant-in-aid from the federal government, any agency or instrumen tality thereof, or from any foundation, private corporation, group or person, in furtherance of the purposes of this chapter. The secretary is authorized and directed to take all necessary action to secure any federal assistance which is or may become avai lable to the executive office, any administrative unit thereof or authority within the executive office, including without limitation, filing applications for assistance, supervising the expenditure of federal grants or loans and making any determinations and certifications necessary or appropriate to the foregoing. If any federal law, administrative regulation or practice requires any action relating to such federal assistance to be taken by any department, agency or other instrumentality of the commonweal th other than the executive office, such other department, agency or instrumentality is authorized and directed to take all such action. It is the intent of this clause that the provisions of any federal law, administrative regulation or practice governing federal assistance shall, to the extent necessary to enable the commonwealth or its subdivisions to receive such assistance and not constitutionally prohibited, override any inconsistent provisions of this chapter or any general or special law.

(3) To ma ke and enter into any contracts or agreements necessary or incidental to the performance and execution of the powers and duties of the executive office under this chapter or any general or special law. Any party, public or private including, without limita tion, federal, state and local agencies, authorities or political subdivisions of the commonwealth, or private corporations or companies, is hereby granted the power and authority to enter into any such contracts or agreements, subject to such provisions o f law as may be applicable. Any such contract or agreement, if made with the Massachusetts Surface Transportation Authority may include provisions for the transfer to said Authority of appropriations or other funds made available to the executive office un der subsections (b) and (c) for the purpose of carrying out such contract or agreement. Any contract or agreement made under this chapter, including, without limitation, contracts or agreements entered into by the executive office of administration and fin ance pursuant to subsection (c), shall include such provisions, terms or conditions as the secretary may deem necessary or appropriate.

(4) To acquire by eminent domain under chapter seventy-nine, or by purchase, gift, devise, transfer, lease or otherwise , or to hold, lease, pledge, otherwise deal with, transfer, sell or dispose of real and personal property.

(5) To exercise all powers and do all acts or things necessary or convenient to carry out the purposes of this section.

(6) Without limitation of t he foregoing, to delegate to the Massachusetts Surface Transportation Authority on such terms and conditions as the secretary may prescribe, any power or duty conferred or imposed upon him by this section; provided, that any such delegation shall be in wri ting.

              (e) (i) To the extent not inconsistent with federal law, no railroad company which conducts or has conducted operations within the commonwealth shall sell, transfer or otherwise dispose of railroad rights-of-way or related facilities without first offering such rights-of-way or facilities for sale, transfer or disposition to either the executive office, acting on behalf of the commonwealth, or such other department, authority, agency, or political subdivision of the commonwealth as may be designated by the executive office for the purpose of any such sale, transfer or disposition; provided, that such sale, transfer or disposition may be made by the railroad company to a party other than the executive office or its designee, but only if (A) the execut ive office or its designee has notified the railroad company in writing of its rejection of such offer; or (B) ninety calendar days have elapsed from the date on which said offer or a copy of such offer, as provided in the second paragraph, is made to the executive office.

(ii) Said railroad company shall make such offer in writing and shall send such offer by certified mail to the executive office or to its designee. In the event that such offer is made to a designee of the executive office, a notarized copy of such offer shall be sent by certified mail to the executive office. Any such offer shall include the price at which said company proposes to offer such rights-of-way or facilities to the commonwealth, and such other terms or conditions which said company proposed to include as part of such sal e, transfer or disposition. The executive office or its designee shall notify in writing and by certified mail said railroad company of its acceptance or rejection of such offer within ninety calendar days of such offer, and in the event that the designee of the executive office sends such notice, said designee shall also send a notarized copy of such notice to the executive office. The executive office is hereby authorized to notify any person that the conditions provided in clauses (A) and (B) of paragrap h (i) have been satisfied and t hat the commonwealth no longer has the option to acquire the rights-of-way or facilities as provided in said paragraph. Any such notice shall be binding on the commonwealth.

In no event shall said railroad company offer to s ell, transfer, or otherwise dispose of railroad rights-of-way or facilities to any person on terms or conditions more favorable to said person than those offered to the commonwealth.

 

Section 19B. The secretary shall apply for, accept and expend, subject to appropriation, on behalf of the commonwealth, any gift, loan or grant-in-aid from the federal government, or any agency or instrumentality thereof for demonstration projects and programs as may become available to the commonwealth for the purpose of energy conservation for improved transportation management systems or for improved transportation management systems.

 

SECTION 3.  Section 19 of chapter 6A is hereby amended by striking out paragraph (b) and inserting in place thereof the following paragraph:-

              (b) The following state agencies shall be within the executive office of transportation: the government center commission established by section 1 of chapter 635 of the acts of 1960, the registr y of motor vehicles and all other state agencies within the department, except the division of motorboats and the division of waterways; and the Massachusetts aeronautics commission. The Massachusetts Surface Transportation Authority, Massachusetts Bay Tra nsportation Authority, the Massachusetts Port Authority and any duly established regional transportation authority shall also be within the executive office of transportation.

SECTION 4.   Section 19 of chapter 6A is hereby amended by striking out paragraph (b) and inserting in place thereof the following paragraph:-

              (b) The following state agencies shall be within the executive office of transportation: the government center commission established by section 1 of chapter 635 of the acts of 1960, the regist ry of motor vehicles and all other state agencies within the department, except the division of motorboats and the division of waterways; and the Massachusetts aeronautics commission. The Massachusetts Surface Transportation Authority, the Massachusetts Po rt Authority and any duly established regional transportation authority shall also be within the executive office of transportation.

SECTION 5.   Chapter 7 of the General Laws is hereby amended by adding the following 14 sections:-

Section 57.  (a) “Affect ed jurisdiction” means any city or town, or other unit of government within the Commonwealth in which all or part of a transportation facility is located or any other public entity directly affected by the transportation facility.

(b) “Architectural and En gineering Services” means: (1) professional services of an architectural or engineering nature, as defined by applicable state law which are required to be performed or approved by a person licensed, registered, or certified to provide such services as des cribed in this Subsection; (2) professional services of an architectural or engineering nature performed by contract that are associated with research, planning, development, design, construction, alteration, or repair of real property;  and (3) such other professional services of an architectural or engineering nature, or incidental services, which members of the architectural and engineering professions (and individuals in their employ) may logically or justifiably perform, including:  studies, investigat ions, surveying, mapping, tests, evaluations, consultations, comprehensive planning, program management, conceptual designs, plans and specifications, value engineering, construction phase services, soils engineering, drawing reviews, preparation of operat ing and maintenance manuals, and other related services. 

(c) “Authority” means the Massachusetts Surface Transportation Authority;

(d) “Construction” means the process of building, altering, repairing, improving, or demolishing any Transportation Facilit y, including any structure, building, or other improvements of any kind to real property.  It does not include the routine operation, routine repair, or routine maintenance of any existing Transportation Facility, including structures, buildings, or real p roperty.

(e) “Force majeure” means an uncontrollable force or natural disaster not within the power of the operator or the Commonwealth.

(f) “Contract” means all types of agreements, including a “Public-Private Agreement”, regardless of what they may be ca lled, for the procurement, operation, or disposal under sections 57 to 70, inclusive, of a Transportation Facility by the Authority.

(g) “Contract Modification” means any written alteration in specifications, delivery point, rate of delivery, period of pe rformance, price, quantity, or other provisions of any contract accomplished by mutual action of the parties to the contract.

(h) “Contractor” means any person having a contract with the Authority under sections 57 to 70, inclusive.

(i) “Cooperative Purch asing” means procurement conducted by, or on behalf of, one or more Affected Jurisdictions.

(j) “Design-build-finance-operate-maintain” means a project delivery method in which the Authority enters into a single contract for design, construction, finance, maintenance, and operation of a Transportation Facility over a contractually defined period.  No public funds are appropriated to pay for any part of the services provided by the Contractor during the contract period. 

(k) “Design-build-operate-maintain” means a project delivery method in which the Authority enters into a single contract for design, construction, maintenance, and operation of a Transportation Facility over a contractually defined period.  All or a portion of the funds required to pay for the services provided by the Contractor during the contract period are either appropriated by the Commonwealth or by the Authority prior to award of the contract or secured by the Commonwealth or by the Authority through fare, toll, or user charges.

(l) “ Design requirements” means the written description of the Transportation Facility or service to be procured under sections 57 to 70, inclusive, including:  

(1) required features, functions, characteristics, qualities, and properties that are required by the Authority;

(2) the anticipated schedule, including start, duration, and completion; and

(3) estimated budgets (as applicable to the specific procurement) fo r design, construction, operation and maintenance. 

The design requirements may, but need not, include drawings and other documents illustrating the scale and relationship of the features, functions, and characteristics of the project.

(m) “Independent P eer Reviewer Services” are additional Architectural and Engineering services provided to the Authority in design-build-operate-maintain or design-build-finance-operate-maintain procurements.  The function of the independent peer reviewer is to confirm that the key elements of the professional engineering and architectural design provided by the contractor are in conformance with the applicable standard of care.

(n) “Maintenance” includes routine operation, routine maintenance, routine repair, rehabilitation, capital maintenance, maintenance replacement, and any other categories of maintenance that may be designated by the Authority.

(o) “Material default” means any failure of a Contractor to perform any duties under a public-private agreement, which jeopardizes delivery of adequate service to the public and remains unsatisfied after a reasonable period of time and after the operator has received written notice from the Authority of the failure.

(p) “Operate” means any action to operate, maintain , repair, rehabilitate, improve, equip, or modify a Transportation Facility, including the design and construction of repairs, improvements, or modifications to a Transportation Facility.

(q) “Operator” means a private entity that has entered into a public -private agreement to provide Design-build-finance-operate-maintain or Design-build-operate-maintain services under sections 57 to 70, inclusive.

(r) “Private entity” means any natural person, corporation, general partnership, limited liability company, li mited partnership, joint venture, business trust, public benefit corporation, non-profit entity, or other business entity.

(s) “Proposal development documents” means drawings and other design related documents that are sufficient to fix and describe the si ze and character of a Transportation Facility as to architectural, structural, mechanical and electrical systems, materials, and such other elements as may be appropriate to the applicable project delivery method.

(t) “Public-private agreement” means the Contract between a private entity and the Authority that relates to the development, financing, maintenance, or operation of a transportation facility subject to sections 57 to 70, inclusive.

(u) “Request for Proposals” means all documents, whether attache d or incorporated by reference, utilized for soliciting proposals for Transportation Facilities under sections 57 to 70, inclusive.

(v) “Responsible Bidder or Offeror” means a person who has the capability in all respects to perform fully the Contract requ irements, and the integrity and reliability which will assure good faith performance.

(w) “Responsive Bidder” means a person who has submitted a bid which conforms in all material respects to the Invitation for Bids.

(x) “Transportation facility” means an y, including new and existing, highway, road, bridge, tunnel, overpass, ferry, airport, public transportation facility, terminal facility, vehicle parking facility, seaport facility, rail facility, intermodal facility, or similar facility open to the publi c and used for the transportation of persons or goods, and any building; structure; or networks of buildings, structures, pipes, controls, and equipment that provide transportation services, including rolling stock, equipment, and any building, structure, parking area, appurtenances, or other property needed to operate such facility that is subject to a public-private agreement.

(y) “User fees” means the rate, toll, fee, or other charges imposed by an operator or by the Authority for use of all or part of a transportation facility.

(z) “Utility” means a privately, publicly, or cooperatively owned line, facility, or system for producing, transmitting, or distributing communications, cable television, power, electricity, light, heat, gas, oil, crude products, water, steam, waste, storm water not connected with highway drainage, or any other similar commodity, including fire or police signal system or street lighting system, which directly or indirectly serves the public.

 

Section 58.  (a) Notwithstanding any ge neral or special law to the contrary, the board of directors of the Massachusetts surface transportation authority, in conjunction with the special public- private partnership infrastructure oversight commission as established in section 70 , is hereby auth orized to solicit proposals, and to enter into contracts for Design-build-finance-operate-maintain or Design-build-operate-maintain services with that responsible and responsive offeror submitting the proposal that is most advantageous to the Authority thr ough the sale, lease, operation and maintenance of a transportation facility within the commonwealth, such operation to be in full compliance with all applicable requirements of federal, state and local law; provided, however, that any such contract shall not be subject to the competitive bid requirements set forth in sections 38A½ to 38O, inclusive, and section 39M of chapter 30 or sections 44A to 44M, inclusive, of chapter 149 of the General Laws; and provided, further, that each such contract shall be aw arded pursuant to the provisions of chapter 30B of the General Laws, expect for clause (3) of paragraph (b) of section 6, paragraphs (e) and (g) of said section 6, clause (4) of section 13 and section 16 of said chapter 30B. 

(b) In soliciting and selecti ng a private entity with which to enter into a public-private agreement for Design-build-finance-operate-maintain or Design-build-operate-maintain services, the Authority shall utilize the following competitive sealed proposals procurement approach:

(1) Ea ch Request for Proposals for design-build-operate-maintain and design-build-finance-operate-maintain services:

(A) shall include design requirements;

(B) shall solicit proposal development documents; and

(C) may, when the Authority determines that the cost of preparing proposals is high in view of the size, estimated price, and complexity of the procurement:

(i) prequalify offerors by issuing a Request for Qualifications in advance of the Request for Proposals; and

(ii) select a short list of responsible of ferors prior to discussions and evaluations, provided that the number of proposals that will be short-listed is stated in the Request for Proposals and prompt public notice is given to all offerors as to which proposals have been short-listed; or

(iii) pay stipends to unsuccessful offerors, provided that the amount of such stipends and the terms under which stipends will be paid are stated in the Request for Proposals.

(2) Adequate public notice of the Request for Proposals shall be given.

(3) Proposals sha ll be opened so as to avoid disclosure of contents to competing offerors during the process of negotiation.  A Register of Proposals shall be prepared by the Authority and shall be open for public inspection after contract award.

(4) (a)               The Request for Pr oposals shall state the relative importance of price and other factors and subfactors, if any.

(b) Each Request for Proposals for design-build-operate-maintain and design-build-finance-operate-maintain:

(i) shall state the relative importance of (1) demons trated compliance with the design requirements, (2) offeror qualifications, (3) financial capacity, (4) project schedule, (5) elimination of existing public debt with respect to the Transportation Facility, (6) lowest user charges (or price) over the term of the design-build-operate-maintain and design-build-finance-operate-maintain Contract, and (7) other factors, if any; and

(ii) shall require each offeror , when the contract price is estimated to exceed $10,000,000, when the contract period of operations and maintenance is five years or longer, or in circumstances established by the Authority, to identify an Independent Peer Reviewer whose competence and qu alifications to provide such services shall be an additional evaluation factor in the award of the contract.

(iii) For procurement using design-build-operate-maintain, and design-build-finance-operate-maintain, the amount, if any, paid by a contractor to t he Authority shall not be an evaluation factor in the award of the contract.

(5) As provided in the Request for Proposals, and under regulations issued by the Authority, discussions may be conducted with responsible offerors who submit proposals determined to be reasonably susceptible of being selected for award for the purpose of clarification to assure full understanding of, and responsiveness to, the solicitation requirements.  Offerors shall be accorded fair and equal treatment with respect to any oppor tunity for discussion and revision of proposals, and such revisions may be permitted after submissions and prior to award for the purpose of obtaining best and final offers. In conducting discussions, there shall be no disclosure of any information derived from proposals submitted by competing offerors.

(6) Award shall be made to the responsible offeror whose proposal conforms to the solicitation and is determined in writing to be the most advantageous to the Acquiring Agency taking into consideration price and the evaluation factors set forth in the Request for Proposals.  No other factors or criteria shall be used in the evaluation.  The contract file shall contain the basis on which the award is made.  Written notice of the award of a contract to the succ essful offeror shall be promptly given to all offerors.

(7) The Authority is authorized to provide debriefings that furnish the basis for the source selection decision and contract award.

(c) (1) A private entity may request a review, prior to submission of a solicited proposal, by the Authority of information that the private entity has identified a confidential or proprietary to determine whether such information will be subject to disclo sure under chapter 66  of the General Laws.

(2) The Authority shall take appropriate action to protect confidential or proprietary information that a private entity provides as part of a solicited proposal and that is exempt from disclosure under chapter 6 6 of the General Laws.

 

Section 59. The Request for Proposals shall contain the proposed form of Contract or Public-Private Agreement to be executed between the successful Offeror and the Authority upon Award, and shall have been approved as to content and form by the Special Public-Private Infrastructure Oversight Commission and by the Authority before the Request for Proposals is issued, pursuant to section 58 .  The Inspector General and the Attorney General shall have thirty (30) days from the receipt o f a draft of the proposed form of Contract to notify the Special Public-Private Infrastructure Oversight Commission in writing of any material objections to the draft form of Contract. Before issuing any Request for Proposal, the Authority shall prepare a written response to reports submitted to it by the Special Public-Private Infrastructure Oversight Commission which response shall state the basis for any substantial divergence between the actions of the Authority and the recommendations contained in such reports of said commission.  The Authority and the successful Offeror may only make non-material changes in the content and form of the Public-Private Agreement contained in the Request for Proposals.

(a) (1) After selecting a solicited or unsolicited pro posal for a public-private initiative, the Authority shall enter into the Public-Private Agreement for the subject transportation facility with the selected private entity.

(2) An affected jurisdiction may be a party to a public-private agreement entered i nto by the Authority and a selected private entity or combination of private entities.

(b) A public-private agreement under sections 57 to 70, inclusive, shall provide for the following:

(1) the planning, acquisition, financing, development, design, constr uction, reconstruction, replacement, improvement, maintenance, management, repair, leasing, or operation of a transportation facility;

(2) the term of the public-private agreement, which shall not exceed fifty (50) years without written approval of the gov ernor;

(3) the type of property interest, if any, the private entity will have in the transportation facility;

(4) a description of the actions the Authority may take to ensure proper maintenance of the transportation facility;

(5) whether user fees will be collected on the transportation facility and the basis by which such user fees shall be determined and modified;

(6) compliance with applicable Federal, State, and local laws;

(7) grounds for termination of the public-private agreement by the Authority or operator;

(8) procedures for amendment of the agreement by mutual agreement, and for changes in the agreement by written order from the Authority.

(9) review and approval by the Authority of the operator’s plans for the development and operation of the transportation facility;

(10) inspection by the Authority and the Independent Peer Reviewer of the design and construction of or improvements to the transportation facility;

(11) maintenance by the operator of a policy of liability insurance or self-insur ance reasonably acceptable to the Authority;

(12) filing by the operator, on a periodic basis, of appropriate financial statements in a form acceptable to the Authority;

(13) filing by the operator, on a periodic basis, of traffic reports, service quality standards as defined in section 3 of chapter 81D, ridership reports, on time performance reports, or other reports identified by the Authority, in a form acceptable to the Authority;

(14) financing obligations of the operator and the Authority;

(15) apport ionment of expenses between the operator and the Authority;

(16) the rights and duties of the operator, the Authority, and other State and local governmental entities with respect to use of the transportation facility;

(17) the rights and remedies available in the event of default or delay;

(18) the terms and conditions of indemnification of the operator by the Authority, as required by applicable law;

(19) assignment, subcontracting, or other delegation of responsibilities of t he operator or the Authority under the agreement to third parties, including other private entities and other State agencies;

(20) sale or lease to the operator of private property related to the transportation facility;

(21) if and how the parties will sh are costs of development of the project;

(22) if and how the parties will allocate financial responsibility for cost overruns;

(23) liability for nonperformance;

(24) any incentives for performance;

(25) any accounting and auditing standards to be used to evaluate progress on the project;

(26) traffic enforcement and other policing issues, subject to section 66  including any reimbursement by the private entity for such services; and

(27) other terms and conditions.

 

Section 60.   Upon the end of the term o f the Public-Private Agreement or in the event of termination of the public-private agreement, the authority and duties of the operator cease, except for any duties and obligations that extend beyond the termination as provided in the public-private agreem ent, and the transportation facility reverts to the Authority and shall be dedicated to the Authority for public use.

 

Section 61. (a) Upon the occurrence and during the continuation of material default by an operator not caused by an event of force majeur e, and upon the failure by the Contractor or its financing institutions on the Contractor’s behalf, to cure such material default within thirty (30) days of written notice from the Authority, the Authority may:

(1) elect to take over the transportation fac ility, including the succession of all right, title, and interest in the transportation facility; and

(2) terminate the public-private agreement and exercise any other rights and remedies that may be available.

(b) In the event that the Authority elects to take over a transportation facility under subsection (a), the Authority:

(1) shall make interim payments, on behalf of the Contractor and for the Contractor’s account, of any amounts subject to the mechanics lien laws of the Commonwealth of Massachusetts ;

(2) may develop and operate the transportation facility, impose user fees for the use of the transportation facility, and comply with any service contracts; and

(3) may solicit proposals for the maintenance and operation of the transportation facility un der section 58.

 

Section 62. (a) (1) The Authority may issue and sell bonds or notes of the Authority for the purpose of providing funds to carry out the provisions of sections 57 to 70, inclusive, with respect to the development, financing, or operation o f a transportation facility or the refunding of any bonds or notes, together with any costs associated with the transaction.

(2) Any bond or note issued under this section:

(A) constitutes the corporate obligation of the Authority;

(B) does not constitute the indebtedness of the Commonwealth within the meaning or application of any constitutional provision or limitation; and

(C) is payable solely as to both principal and interest from:

(i) the revenues from a lease to the Authority, if any;

(ii) proceeds of bonds or notes, if any;

(iii) investment earnings on proceeds of bonds or notes; or

(iv) other funds available to the Authority for such purpose.

(b) (1) For the purpose of financing a transportation facility, the Authority and operator ma y apply for, obtain, issue, and use private activity bonds available under any Federal law or program.

(2) Any bonds debt, other securities, or other financing issued for the purpose of sections 57 to 70, inclusive, shall not be considered to be a debt of the Commonwealth or any political subdivision of the State or a pledge of the faith and credit of the State or any political subdivision of the commonwealth .

(c) Nothing in this section shall limit a local government or any authority of the Commonwealth to issue bonds for transportation projects.

 

Section 63.  (a) (1) The Authority may accept from the United States or any of its agencies funds that are available to the commonwealth for carrying out sections 57 to 70, inclusive, whether the funds are made av ailable by grant, loan, or other financial assistance.

              ( 2 ) The Authority may enter into agreements or other arrangements with the United States or any of its agencies as may be necessary for carrying out the purposes of sections 57 to 70, inclusive.

(b) T he Authority may accept from any source any grant, donation, gift, or other form of conveyance of land, money, other real or personal property, or other item of value made to the commonwealth or the Authority for carrying out the purpose of sections 57 to 70, inclusive.

(c) Any transportation facility may be financed in whole or in part by contribution of any funds or property made by any private entity or affected jurisdiction that is party to a public-private agreement under sections 57 to 70, inclusive.

(d) The Authority may combine Federal, State, local, and private funds to finance a transportation facility under sections 57 to 70 inclusive.

 

Section 64.  (a) Section 9  of Chapter 81B shall apply to:

(1) a transportation facility; and

(2) tangible perso nal property used exclusively with a transportation facility that are:

(A) owned by the Authority and leased, licensed, financed, or otherwise conveyed to an operator; or

(B) acquired, constructed, or otherwise provided by an operator on behalf of the Auth ority.

 

Section 65.  The Authority may exercise the power of eminent domain to acquire property, rights of way or other rights in property for transportation projects that are part of a public-private agreement for design-build-finance-operate-maintain or design-build-operate-maintain services.

 

Section 66. (a) All law enforcement officers of the commonwealth and of an affected local jurisdiction shall have the same powers and jurisdiction within the limits of the transportation facility as they have in the ir respective areas of jurisdiction and access to the transportation facility at any time for the purpose of exercising such powers and jurisdiction.

(b) The traffic and motor vehicle laws of the commonwealth or, if applicable, any affected local jurisdict ion shall be the same on the transportation facility as those laws applied to conduct on similar transportation facilities in the commonwealth or local jurisdiction.

(c) Punishment for violations of traffic and motor vehicle laws of the commonwealth or, if applicable, any affected local jurisdiction on the transportation facility shall be as prescribed by law for conduct occurring on similar transportation facilities in the commonwealth or local jurisdiction.

 

Section 67.  An operator under sections 57 to 7 0, inclusive, and any utility whose facility is to be crossed or relocated shall cooperate fully in planning and arranging the manner of the crossing or relocation of the utility facility.

 

Section 68. Nothing in sections 57 to 70, inclusive, shall be cons trued or deemed to limit any waiver of the sovereign immunity of the Commonwealth or any officer or employee of the Commonwealth with respect to the participation in or approval of all or any part of the transportation facility or its operation.

 

Section 69. The Authority may adopt rules and regulations to carry out the provisions of sections 57 to 70, inclusive.

 

Section 70.  There is hereby established a special public-private infrastructure oversight commission to comment and approve on all Requests for Proposals for design-build-finance-operate-maintain or design-build-operate-maintain services, pursuant to section 59. 

              The commission shall have 9 members, none of whom shall be employees of the executive branch, members of the Ge neral Court, n or employees of the Legislature , including the following: 4 members who shall reside in different geographic regions of the commonwealth , to be appointed by the gover nor to service terms of 2 years;   1 member, who shall not be a member of the general court, t o be appointed by the president of the senate to serve a term of 2 years; 1 member, who shall not be a member of the general court, to be appointed by the speaker of the house of representatives to serve a term of 2 years; 1 member who shall not be an empl oyee of the department of the state treasurer, to be appointed by the treasurer, to serve a term of 2 years; the state auditor, or his designee; and 1 representative from the Massachusetts Organization of State Engineers and Scientists, to serve a term of 2 years.    Each of the members of the commission shall be an expert with experience in the fields of transportation law, public policy, public finance, management consulting, transportation, or organizational change.  One of the members appointed by the go vernor shall be an expert in the field of public finance.  One of the members appointed by the governor shall be an expert in the field of management consulting or organizational change. One of the members appointed by the governor shall be an expert in th e field of transportation.  One of the members shall be appointed by the governor to serve as chairperson of the commission. The members appointed by the governor may be eligible for reappointment, provided however that no member appointed by the governor may serve more than three terms.  The members of the commission shall be appointed no later than August 30, 2009. 

              Whenever the Authority notifies the commission of its intent to issue a Request for Proposal for design-build-finance-operate-maintain or d esign-build-operate-maintain services, the Authority shall submit a draft of the Request for Proposal to the commission for its review and approval.  As provided in section 58 , no Request for Proposal shall be issued by the Authority for a public-private agreement for design-build-finance-operate-maintain or design-build-operate-maintain services without the commission’s written approval.  The commission shall provide an initial written response to the Request for Proposal within 15 days.

              For each Request for Proposal for design-build-finance-operate-maintain or design-build-operate-maintain services, the commission shall report on issues surrounding the Request for Proposal, including but not limited to: (1) the status of current employees, (2) the policy and regulatory structure for overseeing a privately operated transportation facility and on-going legislative oversight, (3) issues of taxation, profit-sharing, and resolution of new revenue producing ideas, (4) advertising and marketing, (5) use of new t echnologies, (6) lease terms and termination clauses, (7) additional responsibilities by both the private infrastructure operator and the Commonwealth during the lease period, (8) the financial valuation of the certain commonwealth transportation facility; and (9) the anticipated advantages of entering into the anticipated public-private agreement for design-build-finance-operate-maintain or design-build-operate-maintain services.

              The commission’s written approval of a Request for Proposal for design-build -finance-operate-maintain or design-build-operate-maintain services shall be deemed to satisfy the requirements of sections 52 to 55, inclusive, of chapter 7 of the General Laws.
              The report shall be delivered within 30 days of the commission’s approval of a Request for Proposal for design-build-finance-operate-maintain or design-build-operate-maintain services to the secretary for administration and finance, the house committee on ways and means, the senate committee on ways and means, the chairmen of the joint committee on transportation, and the chairm e n of the joint committee on bonding, capital expenditures, and state assets. 

Any research, analysis or other staff support that the commission reasonably requires shall be provided by the Massachusetts Su rface Transportation Authority.

 

              SECTION 6.   Chapter 10 of the General Laws is hereby amended by striking out section 35 T , as appearing in the 2006 Official Edition, and inserting in place thereof the following section:-

Section 35T. As used in this secti on, the following words shall, unless the context otherwise requires, have the following meanings:-

“Base revenue amount”, for fiscal year 2001 the amount of $645,000,000, and for each fiscal year thereafter the base revenue amount for the prior fiscal ye ar multiplied by the inflation index for the preceding 12 months, as certified by the secretary of administration and finance (the “secretary”), in consultation with the department of revenue, on March 1 of each year, beginning on March 1, 2001 as set fort h in subsection (b); provided, that in no year shall the base revenue amount exceed 103 per cent of the base revenue amount applicable for the prior fiscal year; provided further, that if in any year said inflation index is less than three per cent but gre ater than the per cent increase in gross sales tax revenues received pursuant to chapters 64H and 64I in the preceding 12 months, excluding any portion of such taxes imposed on meals as defined in paragraph (h) of section 6 of said chapter 64H, then the ba se revenue amount shall be adjusted by the same percentage increase in said gross sales tax revenues; provided further, that if in any year the per cent increase in said gross sales tax revenues is zero or less, then the base revenue amount shall not be ad justed for the subsequent fiscal year.

“Dedicated sales tax revenue amount”, all monies received by the commonwealth equal to 1 per cent of the gross receipts of a sale as defined by the provisions of chapter 64H and 1 per cent of the sales price of a pur chase as defined by the provisions of chapter 64I from that portion of the taxes imposed under the provisions of said chapters 64H and 64I as excises upon the sale and use at retail of tangible property or of services, and upon the storage, use or other co nsumption of tangible property or of services, including interest thereon or penalties but not including any portion of such taxes imposed on the sale of meals as defined in paragraph (h) of section 6 of said chapter 64H.

“Inflation index”, the per cent c hange in inflation as measured by the per cent change in the consumer price index for all urban consumers for the Boston metropolitan area as determined by the bureau of labor statistics of the United States department of labor.

(a) There shall be credite d to the Surface Transportation Trust Fund established in section 35LL (hereinafter, the “Fund”)  (i) the dedicated sales tax revenue amount, provided that in any fiscal year the amount shall be not less the base revenue amount as certified pursuant to sub section (b); and (ii) all assessments received by the commonwealth pursuant to section 22 of chapter 81D.

Before the state treasurer disburses funds to the Massachusetts Surface Transportation Authority, the authority must first certify that it has made pr ovision in its annual budget pursuant to section 21 of chapter 81B for sufficient amounts to be available to meet debt service payments or other payments due under financing obligations, including, without limitation, leases, reimbursement obligations, or interest exchange agreements, for which the commonwealth has pledged its credit or contract assistance or is otherwise liable or as to which the authority has covenanted to maintain net cost of service or contract assistance support. Upon such certificatio n, all amounts in the Fund shall be available for expenditure by the authority for any lawful purpose, including without limitation, payment of debt service on debt obligations issued by the authority, and may be pledged to secure debt of the authority in such manner and according to such priority as the authority may determine.

In order to increase the marketability of any bonds or notes of the authority which may be secured by or payable from amounts held in the Fund, the sums to be credited to the Fund as aforesaid are hereby impressed with a trust for the benefit of the authority and the holders from time to time of any such bonds or notes, and, in consideration of the acceptance of payment for any such bonds or notes, the commonwealth covenants with th e purchasers and all subsequent holders and transferees of any such bonds or notes that while any such bond or note shall remain outstanding, and so long as the principal of or interest on any such bond or note shall remain unpaid, the sums to be credited to the Fund as aforesaid shall not be diverted from the purposes identified herein and, so long as such sums are necessary, as determined by the authority in accordance with any applicable trust agreement, bond resolution, or credit enhancement agreement, for the purposes for which they have been pledged, the rates of the excises imposed by said chapters 64H and 64I shall not be reduced below the dedicated sales tax revenue amount or the base revenue amount and the amount to be assessed on cities and towns pursuant to said section 9 of said chapter 161A shall not be reduced below $136,026,868 per fiscal year.

(b) For purposes of determining the amount to be credited to the Fund the secretary shall on March 1 of each year beginning on March 1, 2001 certify t he base revenue amount for the following fiscal year. On March 15 of each year beginning on March 15, 2001, the secretary shall, after consultation with and based on projections of the department of revenue, certify whether the dedicated sales tax revenue amount is projected to exceed the base revenue amount for the upcoming fiscal year. If the secretary certifies that the projected dedicated sales tax revenue amount will be less than the base revenue amount, then the comptroller shall for the following fis cal year credit to the Fund amounts sufficient to meet the base revenue amount. If the secretary certifies that the projected dedicated sales tax revenue amount will exceed the base revenue amount, then the comptroller shall for the following fiscal year c redit to the Fund the sales tax revenue amount. On November 15 of each year beginning on November 15, 2001, the secretary shall certify whether the dedicated sales tax revenue amount as of that date is projected to exceed the base revenue amount for the cu rrent fiscal year. If the secretary certifies that the dedicated sales tax revenue amount is projected to be less than the base revenue amount, then the comptroller shall credit to the Fund amounts sufficient to meet the base revenue amount for that fiscal year. If the secretary certifies that the dedicated sales tax revenue amount is greater than the base revenue amount, then the comptroller shall credit to the Fund the dedicated sales tax revenue amount. On April 1 of each year beginning on April 1, 2002, the secretary shall repeat the certification process required on November 15, and the comptroller shall credit the appropriate amount to the Fund.

 

SECTION 7 . Section 35U of chapter 10 of the General Laws is hereby repealed.

 

SECTION 8 .   Chapter 10 of th e General Laws is hereby amended by adding the following section :-

Section 35LL. There is hereby set up on the books of the commonwealth a separate fund to be known as the Surface Transportation Trust Fund, hereinafter called the Fund.  There shall be cre dited to the Fund all fees received by the registrar of motor vehicles pursuant to chapter 90, all tolls collected pursuant to subsection (j) of section 4 of chapter 81B, all contributions and assessments paid into the treasury of the commonwealth by citie s, towns or counties for maintaining, repairing, improving and constructing ways, whether before or after the work is completed, all refunds and rebates made on account of expenditures on ways by the department, all receipts paid into the treasury of the c ommonwealth and directed to be credited to the Surface Transportation Trust Fund under section 35T, chapter 64A, 64E, 64F, or any other applicable general or special law, all monies received by the commonwealth in satisfaction of claims by the commonwealth for damage to highway safety signs, signals, guardrails, curbing and other highway related facilities, and all receipts received by the state treasurer under the provisions of section eight of chapter ten on behalf of the registrar or for other surface tr ansportation, as defined herein.

Before amounts are credited to the Surface Transportation Trust Fund, all fees received in the issuance of veterans plates, pursuant to section two, in excess of the fees set for the registration of the motor vehicle, shall be paid by the registrar into the General Fund.  Remaining revenues shall then be used, subject to appropriation,

(1) to carry out the provisions of law relative to the use and operation of motor vehicles and trailers and for expenses authorized to administer the law relative to the taxation of the sales of gasoline and certain other motor vehicle fuel; and

(2) $2 from each motorcycle registration fee shall be paid by the registrar or by the person collecting the registration fee into the General Fun d and shall be appropriated solely for the purpose of promoting and advancing motorcycle safety.

                  The balance then remaining shall be transferred to the Surface Transportation Trust Fund.  Annual receipts into the fund on account of any fiscal year shal l be deemed to meet the full obligation of the commonwealth to the Massachusetts Surface Transportation Authority, hereinafter called the authority, for such fiscal year. Amounts in the Fund shall be held by the state treasurer or his designee as trustee a nd not on account of the commonwealth, and the state treasurer is hereby authorized and directed to disburse amounts in the Fund to the authority, without further appropriation, upon the request, from time to time, of the executive director of the authorit y.

The authority shall use the Fund:

              (a) For expenditure, under the direction of said authority, for maintaining, repairing, improving and constructing town and county ways and bridges, sidewalks adjacent to such ways and bridges, bikeways and other projects eligible for funding as a transportation enhancement project as described in the Intermodal Surface Transportation Efficiency Act of 1991, P.L. 102-240, salt storage sheds, bikeways and public use off-street parking facilities related to mass tran sportation, for engineering services and expenses related to highway transportation enhancement and mass transportation purposes, for care, repair, storage, replacement, purchase and long-term leasing of road building machinery, equipment and tools, for th e erection and maintenance of direction signs and warning signs and for necessary or beneficial improvements to unpaved town and county ways together with any money which any town or county may appropriate for such purposes to be used on the same ways, she ds, bikeways, bridges, machinery, equipment, tools and facilities. Such engineering services, including surveying services, shall only be performed by architectural, engineering or surveying firms prequalified by the authority; provided, however, that a mu nicipality may seek a waiver of this requirement from the authority if the municipality demonstrates to the satisfaction of the authority that it is cost prohibitive to use a prequalified firm. Such ways, sheds, bikeways, bridges, machinery, equipment, too ls and facilities shall remain town or county ways, sheds, bikeways, bridges, machinery, equipment, tools and facilities. No revenue credited to the Fund shall be transferred from said Fund to any other fund of the Commonwealth for any other purpose. The a uthority shall withhold or withdraw the unexpended balance of any funds assigned by it under this subdivision if the town fails to comply with the official standards for traffic control established by the authority or with any provision of a traffic contro l agreement negotiated between the authority and the town, as required by the United States Secretary of Commerce under section 109 of Title 23 of the United States Code. In this subdivision the word "town'' shall include city;

              (b) For expenditure, under the direction of the authority, for maintaining, repairing and improving state highways and bridges, including highways and bridges managed until July 1, 2009 by the department of conservation and recreation, the turnpike and the metropolitan highway syste m, all as defined in chapter 81B;

              (c) For expenditure, under the direction of the authority, in addition to federal aid payments received under section 49 of chapter 81C , for construction of state highways;

              (d) For expenditure, under the direction of the authority, for engineering services and expenses, for care, repair, storage, replacement and purchase of road building machinery and tools, for snow removal, for the erection and maintenance of direction signs and warning signs and for the care of shrubs and trees on state highways, and for expenses incidental to the foregoing or incidental to the purposes specified in subdivisions (a), (b) or (c) of this clause;

              (e) To meet interest, sinking fund and serial payments on all debts paid from highway fund re ceipts before July 1, 2009, including those paid in accordance with section 2O of chapter 29.

(g) For contributions to regional transit authorities under section 23 of chapter 161B ;

(h) For expenditure for the operations of the division of public transit of the authority

(i) For expenditure, under the direction of the authority, for infrastructure improvements in mass transportation facilities throughout the commonwealth.

(j) For expenditures to meet any remaining assistance requirements from the Commonwea lth to the Route 3 North Transportation Improvements Association outstanding as of July 1, 2009; provided that no new pledges of additional assistance to the Route 3 North Transportation Improvements Association shall be incurred after July 1, 2009.

Except as provided herein, revenues credited to the Fund shall not be transferred to any other fund of the commonwealth for any purpose. 

SECTION 9 . Section 63 of chapter 10 of the General Laws is hereby repealed.

              SECTION 10.   Sections 1 to 4B, inclusive, 13 and 14 of Chapter 16 of the General Laws are hereby repealed.

              SECTION 11. The fourth paragraph of section 1 of chapter 21 of the General Laws, as appearing in the 2006 Official Edition, is hereby amended by striking out the word “parkways” each time it appears.

              SECTION 12.   Section 11A of chapter 21A of the General Laws is hereby amended by striking out the words “the commissioner of highways or his designee” and inserting in place thereof the following words:- the administrator of the division of roads and bridges or his designee

              SECTION 13.   Section 3I of chapter 23A of the General Laws is hereby amended by inserting after the words “Massachusetts Bay Transportation Authority” the following words:- , or any successor agency,

              SECTION 14. Section 2O of chapter 29 of the General Laws is hereby repealed.

              SECTION 15.   Chapter 64A is hereby amended by striking out section 13 and inserting in place thereof the following section:-

Section 13. All sums received from the excise imposed on aviation fuel, and re lated penalties, forfeitures, interest, costs of suits and fines, less all amounts for reimbursement under sections 7 and 7A, shall be credited to the Surface Transportation Trust Fund and may be used for airport development projects approved and carried o ut at airports and landing facilities under 49 U.S.C. App. s 2210; and all other sums received under the excise imposed in section 4, and relative penalties, forfeitures, interest, costs of suits and fines, less all amounts for reimbursement under said sec tions 7 and 7A, shall be credited to the Surface Transportation Trust Fund to be used for transportation-related purposes.

              SECTION 16.   Chapter 64E is hereby amended by striking out section 13 and inserting in place thereof the following section:-

Sectio n 13. All sums received under this chapter as excises, penalties, forfeitures, interest, costs of suits and fines shall be credited to the Surface Transportation Trust Fund to be used for transportation-related purposes.

SECTION 17.   Chapter 64F is hereby amended by striking out section 14 and inserting in place thereof the following section:-

Section 14. All sums received under this chapter as excises, penalties, forfeitures, interest, costs of suits and fines shall be credited to the Surface Transportatio n Trust Fund to be used for transportation-related purposes. 

              SECTION 18.   Chapter 81 of the General Laws is hereby repealed.

              SECTION 19.   Chapter 81A of the General Laws is hereby repealed.

              SECTION 20.   The General Laws are hereby amended by inserting after chapter 81A the following 2 chapters:-

Chapter 81B

The Massachusetts SURFACE Transportation Authority

Section 1.   There is hereby created a body politic and corporate to be known as the Massachusetts Surface Transportation Authority which, while within the executive office of transportation, shall not be subject to the supervision and regulation of said executive of fice or any other department, commission, board, bureau, or agency, except as specifically provided in any general or special law to the contrary.  The authority is hereby authorized and empowered, subject to the provisions of this chapter, to own, constru ct, maintain, repair, reconstruct, improve, rehabilitate, finance, refinance, use, police, administer, control and operate (a) the state highway system as defined in this chapter and (b) the turnpike as defined in the chapter.

              The authority is hereby cons tituted a public instrumentality.  The exercise by the authority of the powers conferred by this chapter shall be deemed and held to be the performance of an essential governmental function.

 

Section 2.  The Authority shall be managed by a board of eleven directors, one of whom shall be the Secretary of Transportation who shall serve as chairman of the board and shall not be additionally compensated for said service and ten of whom shall be appointed by the governor.  Of these ten appointments, one shall be the Secretary for Administration and Finance or his designee, who shall also not be additionally compensated for said service.  None, except for the foregoing appointments, shall be members of the General Court or employees of the Executive Branch or empl oyees of the Legislature.  One director shall be selected by the governor from a list of three candidates proposed by the Massachusetts Association of Regional Transit Authorities; one shall be selected by the governor from a list of three candidates propo sed by the Massachusetts Association of Regional Planning Agencies, who shall represent a metropolitan planning organization; two shall be representatives of the Massachusetts Bay Transportation Authority , or any successor agency, service area but only one of whom shall be from the City of Boston; one shall be an expert in the field of the construction of transportation projects; two shall be experts in the field of public or private finance or accounting; one shall be a representative of an environmental o rganization or environmental public interest group; and one shall be an expert in the field of transportation law or organizational change .  No more than six of the eleven directors shall be memb ers of the same political party . Directors shall reside in d ifferent geographic regions of the Commonwealth such that at least one director shall reside in Berkshire, Franklin, Hampshire or Hampden county, at least one director shall reside in Worcester county, one director shall reside in Middlesex or Essex county provided that the director does not reside in a municipality that is a member of the Metropolitan Area Planning Council, one director shall reside in Plymouth, Barnstable, Dukes or Nantucket county, and one shall reside in either Bristol or Norfolk county   

No director shall have been a registered legislative agent as defined in section 39 of chapter 3 for a period of at least five years prior to his appointment and no director shall have been employed by an organization that has business before the Autho rity , or any predecessor agency or authority, for a period of at least two years prior to his appointment. 

Before entering upon the duties of his office, each member of the Authority shall take an oath before the governor to administer the duties of his office faithfully and impartially and a record of said oath shall be filed in the office of the state secretary. 

Except for the chairperson, directors appointed after January 31, 2009 shall serve until June 30, 2011. After June 30, 2011, six directors sh all serve a term of two years and 5 directors shall serve a term of three years.  Any director, except the chairman, may be removed for cause by the governor.  In the event of a vacancy, a successor shall be named in the same manner as the vacated director and such successor shall serve for the remained of the unexpired term.   A majority of the directors shall constitute a quorum but a majority vote of the entire membership shall be required to take any particular action. The directors shall meet monthly. The directors shall serve without pay however each director shall be reimbursed for his actual expenses necessarily incurred in the performance of his duties.

The provisions of section 3 of chapter 12 shall not apply to said board of directors.  The auth ority may indemnify any member, officer or employee from personal expenses or damages incurred, arising out of any claim, suit, demand or judgment which arose out of any act or omission of such member, officer or employee, including the violation of the ci vil rights of any person under any federal law if, at the time of such act or omission such member, officer or employee was acting within the scope of his official duties or employment. 

Notwithstanding any other provision of this act, as soon as a quorum of the board of directors is appointed, the Authority shall undertake the following:  (i) appointment of a Chief of Executive Officer whose term of employment shall not extend beyond five years at a time (ii) development, in coordination with the Secretar y of Transportation,  of rules and regulations  for implementation of this act; (iii)  implement or enact any powers, rule and regulations to affect the implementation of this act. Until the appointment and qualification of the Board of Directors of the Au thority constituting a quorum of the board is achieved, the Secretary of Transportation, for a period not to exceed 90 days, may assume such rights and powers authorized by the provision of this section, with approval of the Governor. 

 

Section 3.  As use d in this chapter, chapter 81C and 81D, the following words shall, unless the context clearly requires otherwise, have the following meanings:-

“Authority”, the Massachusetts Surface Transportation Authority established by section 1.

“Boston extension”, a ll roadways and tunnels for vehicular traffic that constitute that portion of interstate highway route 90 beginning at and including the interchange of interstate highway route 90 and state highway route 128 in the town of Weston and ending in the city of Boston at the interchange of interstate highway route 90 and interstate highway route 93 and such additional highway and bridge components as the general court may from time to time determine and including such real property and any improvements thereon, p ersonal property, equipment, licenses, appurtenances and interests in land acquired or leased in connection with or incident to the construction, ownership, operation, rehabilitation, reconstruction, improvement, repair, maintenance or administration of su ch roadways and tunnels as are necessary for their safe and efficient operation and maintenance or which are otherwise convenient or desirable to carry out the purposes of this chapter.

“Callahan tunnel”, the tunnel for vehicular traffic constructed under the provisions of chapter five hundred and ninety-eight of the acts of nineteen hundred and fifty-eight between the North End section of the city of Boston and the East Boston section of said city and including such real property and any improvements ther eon, personal property, equipment, licenses, appurtenances and interests in land acquired or leased in connection with or incident to the construction, ownership, operation, rehabilitation, reconstruction, improvement, repair, maintenance or administration of such tunnel as are necessary for its safe and efficient operation and maintenance or which are otherwise convenient or desirable to carry out the purposes of this chapter.

“Central artery”, all roadways and tunnels for vehicular traffic constructed by the highway department that constitute that portion of interstate highway route 93 beginning at a point immediately south of the Southampton street interchange, so-called, and continuing to and including the interchange of interstate highway route 93 and Massachusetts avenue in the South End section of the city of Boston and continuing to and including the interchange of interstate highway route 90 and interstate highway route 93 in the South Bay section of the city of Boston, so-called, and continuing to and including the interchange of state highway route 1 and interstate highway route 93 in the Charlestown section of the city of Boston including, but not limited to, the so-called Charles river crossing portion of interstate highway route 93 and such addi tional highway and bridge components as the general court may from time to time determine, but excluding the central artery north area. “Central artery” shall also include such real property and any improvements thereon, personal property, equipment, licen ses, appurtenances and interests in land acquired or leased in connection with or incident to the construction, ownership, operation, rehabilitation, reconstruction, improvement, repair, maintenance or administration of such roadways and tunnels as are nec essary for their safe and efficient operation and maintenance or which are otherwise convenient or desirable to carry out the purposes of this chapter.

“Central artery north area”, all roadways and tunnels for vehicular traffic constructed by the highway department consisting of a portion of state highway route 1 beginning at, but not including, the southern boundary of the Tobin memorial bridge and continuing to the interchange of interstate highway route 93 and state highway route 1, including such real property and any improvements thereon, personal property, equipment, licenses, appurtenances and interests in land acquired or leased in connection with or incident to the construction, ownership, operation, rehabilitation, reconstruction, improvement, rep air, maintenance or administration of such roadways and tunnels as are necessary for their safe and efficient operation and maintenance or which are otherwise convenient or desirable to carry out the purposes of this chapter.

“Chief executive officer”, the chief executive officer of the Authority, appointed by the board pursuant to section 4.

"Cost", as applied to any project of the Authority any or all costs, whenever incurred, of carrying out and placing such projects in operation, including, without limi ting the generality of the foregoing, amounts for the following: acquisition, construction expansion improvement and rehabilitation of facilities; acquisition of real or personal property; demolitions and relocations; labor, materials, machinery and equipm ent; services of architects, engineers and environmental and financial experts and other consultants; feasibility studies, plans, specifications and surveys; interest prior to and during the carrying out of any project and for a reasonable period thereafte r; reserves for debt service or other capital or current expenses; costs of issuance; and working capital, administrative expenses; legal expenses and other expenses necessary or incidental to the aforesaid, to the financing thereof and to the issuance the refor of bonds u nder the provisions of this act.

"Costs of issuance", any amounts payable or reimbursable directly or indirectly by the Authority and related to the sale and issuance of bonds and the investment of the proceeds thereof and of revenues secur ing the same including, without limiting the generality of the foregoing, printing costs, filing and recording fees, fees and charges of trustees, depositories, authenticating agents and paying agents, legal and auditing fees and charges, financial consult ant fees, costs of credit ratings, premiums for insurance of the payment of bonds and fees payable for letters or lines of credit or other credit facilities securing bonds, underwriting or placement costs, fees and charges for execution, transportation and safekeeping of bonds, costs and expenses of refunding and other costs, fees and charges i n connection with the foregoing.

"Current expenses", the authority's current expenses, whether or not annually recurring, of maintaining, repairing and operating the assets under the possession, custody and control of the Authority and engaging in other activities authorized by this chapter including, without limiting the generality of the foregoing, amounts for administrative expenses of the Authority including costs of salaries and benefits, as provided in this chapter , cost of insurance, payments for engineering, financial, accounting, legal and other services rendered to the Authority, taxes upon the A uthority or its income, operations or property and payments in li eu of such taxes, co sts incurred or payable by the A uthority with respect to the assets under the possession, custody and control of the Authority , costs of issuance not financed in the cost of a project, and other current expenses required or perm itted by law to be paid by the A uthority , including the funding of reasonable reserves for upgrading, maintenance, repair, replacements, insurance, emerge ncy contingencies or operations.

“Division of roads and bridges”, the division of roads and bridges within th e authority established pursuant to chapter 81C.

“Division of public transit”, the division of public transit within the authority established pursuant to chapter 81D.

“Metropolitan highway system”, the integrated system of roadways, bridges, tunnels, overpasses, interchanges, parking facilities, entrance plazas, approaches, connecting highways, service stations, restaurants, tourist information centers and administration, storage, maintenance and other buildings that the authority owns, constructs or o perates and maintains pursuant to the provisions of this chapter which consists of the Boston extension, the Callahan tunnel, the central artery, the central artery north area, the Tobin Memorial Bridge, the Sumner tunnel and the Ted Williams tunnel and an y additional highway, tunnel and bridge components as the general court may from time to time determine.

“Metropolitan highway system revenues”, (i) all rates, fees, tolls, rentals or other charges and other earned income and receipts as derived from or w ith respect to the ownership, operation, lease, rent or other use or disposition of the metropolitan highway system or any part thereof; and (ii) all other funds received by the authority, from whatever source, relating to the metropolitan highway system.

“Notes or bonds”, the notes, bonds or other evidences of indebtedness of the authority issued pursuant to this chapter.

“Massachusetts Port Authority”, the Massachusetts Port Authority established pursuant to chapter four hundred and sixty-five of the ac ts of nineteen hundred and fifty-six.

"Revenues", all charges and other receipts derived by the Authority from operation of the assets under the possession, custody and control of the Authority and all other activities or properties of the Authority inclu ding, without limiting the generality of the foregoing, proceeds of grants, gifts or appropriations to the Authority, investment earnings and proceeds of insurance or condemnation, and the sale or other dispositi on of real or personal property.

“State high way system”, all roadways, bridges, tunnels, overpasses, interchanges, parking facilities, entrance plazas, approaches, connecting highways, service stations, restaurants, tourist information centers and administration, storage, maintenance and other build ings that the authority owns, constructs or operates and maintains pursuant to the provisions of this chapter and any additional highway, tunnel and bridge components as the general court may from time to time determine.  The term “state highway system” sh all include the turnpike.  

“State public transit system”, all publicly funded modes of transportation , but not including roads and bridges. 

“Sumner tunnel”, the vehicular tunnel under Boston harbor, heretofore constructed and financed by the city of Bos ton under the provisions of chapter two hundred and ninety-seven of the acts of nineteen hundred and twenty-nine, including such real property and any improvements thereon, personal property, equipment, licenses, appurtenances and interests in land acquire d or leased in connection with or incident to the construction, ownership, operation, rehabilitation, reconstruction, improvement, repair, maintenance or administration of such tunnel as are necessary for its safe and efficient operation and maintenance or which are otherwise convenient or desirable to carry out the purposes of this chapter.

“Ted Williams tunnel”, all or any segments of the roadways, bridges, viaducts and tunnels for vehicular traffic constructed by the highway department that constitute t he interstate highway route 90 extension and its connecting roadways and tunnels, including (i) the harbor tunnel crossing beneath Boston harbor, beginning at and including the interchanges of state highway route 1A and the Logan airport access and egress roadways with interstate highway route 90 and continuing beneath Boston harbor to and including the interchange of interstate highway route 90 and South Boston Bypass road, but excluding the Logan airport access and egress roadways owned by the port author ity on March first, nineteen hundred and ninety-seven and any additional access and egress roadways acquired by the Massachusetts Port Authority after March first, nineteen hundred and ninety-seven; (ii) the seaport access highway, so-called beginning at t he interchange of interstate highway routes 90 and 93 and continuing to the interchange of interstate highway route 90 and South Boston Bypass road; and (iii) South Boston Bypass road, a portion of which is also known as South Boston Haul road, beginning a t the interchange of interstate highway route 93 and South Boston Bypass road and continuing to the interchange of the seaport access highway, so-called, in the South Boston section of the city of Boston, including such real property and any improvements t hereon, personal property, equipment, licenses, appurtenances and interests in land acquired or leased by the highway department in connection with or incident to the construction, ownership, operation, rehabilitation, reconstruction, improvement, repair, maintenance or administration of such roadways and tunnels as are necessary for their safe and efficient operation and maintenance or which are otherwise convenient or desirable to carry out the purposes of this chapter.

“Tobin memorial bridge”, the bridg e formerly known as the Mystic river bridge in Chelsea.

“Turnpike”, the limited access express toll highway, designated as interstate highway route 90, and all bridges, tunnels, overpasses, underpasses, interchanges, parking facilities, entrance plazas, a pproaches, connecting highways, service stations, restaurants, tourist information centers and administration, storage, maintenance and other buildings that the authority may own, construct or operate and maintain pursuant to the provisions of this chapter and any additional highway, tunnel and bridge components as the general court may from time to time determine, extending from the town of West Stockbridge on the commonwealth’s border with New York state to, but not including, the interchange of interstat e highway route 90 and state highway route 128 in the town of Weston.

“Turnpike corridor”, the cities and towns of the commonwealth from the New York state border to state highway route 128 through which the turnpike runs and municipalities contiguous to such cities and towns.

“Turnpike revenues”, (i) all rates, fees, tolls, rentals or other charges and other earned income and receipts derived from or with respect to the ownership, operation, lease, rent or other use or disposition of the turnpike or any part thereof; and (ii) all other funds received by the authority, from whatever source, relating to the turnpike.

 

Section 4.   The authority is hereby authorized and empowered:

              (a) to make, and from time to time revise and repeal, by-laws, rules, regulat ions and resolutions for the regulation of its affairs and the conduct of its business;

              (b) to adopt an official seal and alter the same at its pleasure;

              (c) to maintain offices at such places within the commonwealth as it may determine and to conduct meetings of the authority in accordance with the by-laws of the authority and the provisions of the second paragraph of section fifty-nine of chapter one hundred an d fifty-six B;

              (d) to sue and be sued in its own name, plead and be impleaded;

              (e) to own, construct, maintain, repair, reconstruct, improve, rehabilitate, use, police, administer, control and operate the state highway system or any part thereof and, con sistent with agreements entered into with the Authority to the extent applicable, as it may determine; provided, however, that the provisions of chapter ninety-one shall not apply to the authority, except for any parts or areas thereof subject to said chap ter ninety-one on March first, nineteen hundred and ninety-seven;

              (f) to acquire sites abutting the state highway system and to construct or contract for the construction of buildings and appurtenances for gasoline stations, restaurants, parking facilitie s, tourist information centers and other services and to lease such facilities in such manner and under such terms as it may determine;

              (g) to issue notes or bonds for any of its corporate purposes related to the turnpike payable solely from turnpike reve nues or portions thereof pledged for their payment and to refund its notes or bonds pertaining to the turnpike or any part thereof or payable from such revenues, as provided in this chapter;

              (h) to issue notes or bonds for any of its corporate purposes re lated to the metropolitan highway system payable solely from the metropolitan highway system revenues or portions thereof pledged for their payment and to refund its notes or bonds pertaining to the metropolitan highway system or any part thereof or payabl e from such revenues, as provided in this chapter;

              (i) to issue bonds, notes and other evidences of indebtedness as provided in this chapter;

              (j) to fix and revise from time to time and charge and collect tolls for transit over the turnpike; provided, ho wever, that it shall furnish upon request to a user of the turnpike a toll receipt showing the amount of toll paid, the classification of the vehicle, the date of payment and place of exit from said turnpike; provided further, that the authority shall conv ene at least two public hearings, each to be held in a community within the turnpike corridor, at least 30 days prior to the effective date of any proposed change in toll structure on the turnpike and shall allow for a one week comment period, after each s uch hearing, during which written testimony and comments shall be accepted;

              (k) [no section k.]

              (l) to adopt such rules and regulations pursuant to the provisions of chapter thirty A and not repugnant to the provisions of the General Laws made applicable to the authority, as the authority determines necessary or appropriate to provide for or govern the construction or reconstruction, including contractor qualification, operation, maintenance, repair, rehabilitation, improvement, use, policing, control or administration of the state highway system or the authority's business or property. Such regulations may include the authority to grant easements, permits or other forms of authorization for the installation, construction, maintenance, repair, renewal, rel ocation and removal of tracks, pipes, pipelines, mains, conduits, cables, wires, towers, poles and other equipment and appliances of any public utility, private entity or corporation or person owning or operating such facilities in, on, along, over or unde r the state highway system.

              Such regulations may impose penalties for violations thereof which, in the case of civil penalties, may be recovered only after notice and hearing conducted by the authority or its designee and subject to judicial review and en forcement pursuant to the provisions of said chapter thirty A or such other civil proceedings under the laws of the commonwealth or the United States as the law may provide and, in the case of criminal penalties, may be recovered in a proceeding in a trial court of the commonwealth by indictment or complaint. The amount of any such civil or criminal penalty shall not exceed five hundred dollars for each offense, unless the law otherwise provides. The full amount of a civil penalty shall be paid to the autho rity and eighty percent of a penalty recovered in a criminal proceeding shall be accounted for and paid to the authority. The authority may further provide in such regulations for adjudicatory proceedings that it or its designee conducts which are subject to judicial review and enforcement according to the provisions of said chapter thirty A;

              (m) to acquire, lease, hold and dispose of real and personal property or any interest therein in the exercise of its powers and the performance of its duties pursuant to this chapter provided, however, that the authority shall issue semi-annual reports to the secretary of administration and finance, the house and senate committees on ways and means, the joint committee on transportation and the joint committee on bonding, capital expenditures and state assets, detailing the financial transactions and revenu es associated with the sale, concession or lease of real property held in the name of or under the control of the authority, whether by purchase or otherwise, and any transactions relating to real property currently pending; and provided further, that the semi-annual report shall include the current market values of the real properties related to the transactions;

              (n) to place and maintain or grant permission by easement or otherwise to any public utility, corporation or person to place and maintain on or under or within the turnpike or the metropolitan highway system or any part thereof, ducts, pipes, pipelines, mains, conduits, cables, wires, towers, poles or other structures to be so located as not to interfere with the safe and convenient operation and maintenance of the state highway system and to contract with any such public utility, corporation or person for such permission on such terms and conditions as may be fixed by the authority. The construction, maintenance and repair of any such ducts, pipes , pipelines, mains, conduits, cable, wires, towers, poles or other structures shall be subject to such directions and regulations as the authority may impose.

              Whenever the authority shall determine that it is necessary that any such ducts, pipes, pipeline s, mains, conduits, cable, wires, towers, poles or other structures which are now or hereafter may be located in, on, along, over or under the state highway system be relocated or removed, the public utility, corporation or person owning or operating such facilities shall relocate or remove the same in accordance with the order of the authority. In case of any such relocation or removal of facilities, the public utility, corporation or person owning or operating the same, its successors or assigns may maint ain and operate such facilities, with the necessary appurtenances, in the new location for as long a period and upon the same terms and conditions as it had the right to maintain and operate such facilities in their former location.

              Otherwise, the Authori ty shall have the power to grant such easements over any real property held by the Authority as will not in the judgment of the authority unduly interfere with the operation of any of its mass transportation facilities;

              (o) to acquire in the name of the a uthority by purchase or otherwise, on such terms and conditions and in such manner as it may deem proper or by the exercise of the power of eminent domain in accordance with the provisions of chapter seventy-nine or any alternative method now or hereafter provided by law, such public lands and any fee simple absolute or lesser interest in such private property, or part thereof or rights therein as it may deem necessary for carrying out the provisions of this chapter;

              (p) to designate the locations and esta blish, limit and control such points of ingress to and egress from the state highway system as may be necessary, convenient or desirable in the judgment of the authority to insure the proper operation and maintenance of the state highway system and to proh ibit entrance to the state highway system from any point or points not so designated;

              (q) to (i) construct grade separations at locations where the state highway system intersect with or abut public highways or rail lines and to change and adjust the line s and grades of such highways or rail lines so as to accommodate the same to the design of such grade separation; and (ii) change the location of any portion of any public highway or rail line which intersects or abuts the state highway system in order to improve the safety or efficiency of the state highway system; provided, however, that if the authority shall find it necessary to change the location of a public highway, it shall reconstruct the same in as good a condition as the original highway and at s uch location as the authority deems most favorable. All costs incident to construction, realignment or reconstruction conducted pursuant to this clause shall be borne by the authority;

              (r) to enter upon any lands, waters and premises in the commonwealth, after 30 days notice by registered or certified mail and without the necessity of any judicial orders or other legal proceedings, for the purpose of making surveys, soundings, drillings and examinations as the authority may deem necessary, convenient or de sirable for carrying out the purposes of this chapter and such entry shall not be deemed a trespass nor shall an entry for such purposes be deemed an entry under any condemnation proceedings which may be then pending. The authority shall provide reimbursem ent for any actual damage resulting to such lands, waters and premises as a result of such activities. The commonwealth hereby consents to the use of all lands owned by it, including lands lying underwater, which are deemed by the authority to be necessary , convenient or desirable for the construction, operation or maintenance of the state highway system;

              (s) to make and enter into all contracts and agreements necessary, convenient or desirable in the performance of its duties and the execution of its powe rs under this chapter; provided, however, that sections twenty-six to twenty-nine, inclusive, and sections forty-four A to forty-four J, inclusive, of chapter one hundred and forty-nine and sections thirty-nine F to thirty-nine M, inclusive, of chapter thi rty shall apply to contracts of the authority to the same extent and in the same manner as they are applicable to the commonwealth. Notwithstanding the provisions of this clause, the authority may, with the approval of the secretary of the executive office of transportation, without competitive bids and notwithstanding the provisions of any general or special law to the contrary, award a contract, otherwise subject to this section, limited to the performance of emergency repairs necessary to preserve the sa fety of persons or property;

              (t) to appoint and employ officers and employees to serve at the pleasure of the directors, except as may otherwise be provided in collective bargaining agreements, and to fix their compensation and conditions of employment, e mploy personnel as hereinafter provided and to engage architectural, engineering, accounting, management, legal, financial and environmental consulting and other professional services; provided, however, that the Authority shall engage consultants to perfo rm only those services for the Authority which regular employees of the Authority are unable to perform owing to lack of special expertise or other inability to perform such services on the schedule or in the mann er required by the Authority;

              (u) To accep t gifts, grants and loans from agencies of local, state and federal governments, or from private agencies or persons, and to accede to such conditions and obligations as may be imposed as a prerequisite to any such gift, grant or loan;

              (v) to adopt a fisc al year to conform with the fiscal year of the commonwealth;

              (w) to receive and apply its revenues to the purposes of the Authority without appropriation or allotment by the commonwealth or any political subdivision thereof;

              (x) to enter into agreement s with other parties, including, without limiting the generality of the foregoing, government agencies, municipalities, authorities, private transportation companies, railroads, and other concerns, providing (i) for construction, operation and use of any m ass transportation facility and equipment held or later acquired by the authority; provided, that any agreement entered into by the authority for the construction or acquisition of mass transportation facilities or equipment of more than $1,000,000, which is financed in whole or in part from the proceeds of bonds the debt service payments on which are assisted by the commonwealth or made from the dedicated revenue source, shall not become effective until approved by the secretary of transportation; and prov ided further, that said secretary shall notify the secretary of administration and finance of any such approval; (ii) for joint or cooperative operation of any mass transportation facility and equipment with another party; (iii) for operation and use of an y mass transportation facility and equipment for the account of the authority, for the account of another party or for their joint account; or (iv) for the acquisition of any mass transportation facility and equipment of another party where the whole or an y part of the operations of such other party takes place within the area constituting the authority. Any such other party is hereby given power and authority to enter into any such agreements, subject to such provisions of law as may be applicable. Any agr eement with a private company under this chapter which is to be financed from the proceeds of bonds or bond anticipation notes and which provides for the rendering of transportation service by such company and for financial assistance to such company by su bsidy, lease or otherwise shall include such service quality standards for such service as the authority may deem appropriate and shall not bind the authority for a period of longer than one year from its effective date, but this shall not prohibit agreeme nts for longer than one year if the authority’s obligations thereunder are subject to annual renewal or annual cancellation by the board’s authority. Such agreements may provide for cash payments for services rendered, but not more than will permit any pri vate company a reasonable return;

(y) to establish transit facilities and related infrastructure, including terminals, stations, access roads, and parking, pedestrian access facilities and bicycle parking and access facilities as may be deemed necessary a nd desirable. The authority may charge reasonable fees for the use of such facilities as it may deem desirable, or it may allow the use of such facilities free of charge; 

(z)  to employ a private project ombudsman who shall, in consultation with the secr etary of transportation, to serve as a single point of contact to expedite the permitting, design and development of private projects that are under the authority of the division of roads and bridges and division of public transit; and

(aa) to do all acts and things necessary, convenient or desirable to carry out the powers expressly granted in this chapter.

 

Section 5 . Not later than January 1, 2012, the Authority shall develop and implement one integrated asset management system to oversee and coordinate the maintenance, preservation, reconstruction and investment of all of the assets in its possession, custody and control.  The Authority may use programs and services offered by the division of capital asset management and maintenance and the information technology division to aid in its development of an integrated asset management system, as long as, in the judgment of the Authority, such programs and services compare favorably with those available from private vendors, and are offer ed at competitive prices. 

 

Section 6.  The chief executive officer shall establish a performance measurement system for the divisions of the Authority , which shall establish program goals, measure program performance against those goals and report public ly on progress to improve the effectiveness of transportation design and construction, service delivery and policy decision-making. Performance measurements shall include, for at least the then current fiscal year and the previous 5 fiscal years, all modes of transportation. Performance measurements shall include the number of projects completed, the percentage of projects completed early or on time, the percentage of projects completed under budget or on-budget, the number of projects in construction phas e and the percentage of projects advertised early or on time. Performance measurements shall include usage information for all modes of transportation, including measures of throughput, utilization and ridership. This information shall be presented with measurements of congestion, on-time performance, where appropriate, and incidents that have caused delays or closures. Performance measurements shall include assessments of maintenance performance by asset class, mode and region, including a breakdown of highway pavement, bridge and track, for subway, commuter and commonwealth-owned freight rail, by condition level, with an explanation of current year and future year planned maintenance expenditures and their expected result. Reporting on planned maintena nce programming shall include an assessment of the categories of maintenance-related activity as described in the American Association of Highway and Transportation Officials' Maintenance Manual for Roadways and Bridges. The division of roads and bridges shall expand and enhance its project information system and shall develop additional means to establish a centralized system, available on the internet, to document performance measurements and the progress and status of all planning, design, construction and maintenance projects undertaken by the Authority, and all road and bridge projects of any city or town that are funded, in whole or in part, by the commonwealth. A municipality shall have access to the system at no cost, shall enter such information i nto the system as may be required by the division of roads and bridges and shall otherwise fully participate in the system as a condition of receiving financial assistance from the commonwealth. All information in the project information system shall be a public record unless otherwise exempted by law. A report of the project information system and performance measurements shall be published annually and made available to the public not later than December 31. The report shall also be filed annually with the clerks of the senate and house of representatives, the chairs of the house and senate committees on ways and means and the senate and house chairs of the joint committee on transportation. The performance measurement system shall require each divisio n to develop a strategic plan for program activities and performance goals. The system shall require annual program performance reports which shall be submitted to the house and senate committees on ways and means and the joint committee on transportation .

 

Section 7 .   Unless otherwise required under section 6A of chapter 31 or any other general or special law to the contrary, t he chief executive officer shall design and implement a program for performance evaluation of employees. The sole purpose of said program shall be the improvement of the performance of individual employees and the authority and, notwithstanding any general or special law to the contrary, all information compiled by said program shall be confidential. Said authority may consult with individuals and organizations and may contract for technical assistance for the purpose of said program to the extent it deems necessary.

 

Section 8.  (a) The chief executive officer of the Authority   shall, notwithstanding any general or special law to the contrary, identify administrative activities and functions common to the separate offices, divisions, and commissions within the Authority and may designate such functions "core administrative functions" in order to improve administrative efficiency and p reserve fiscal resources.   Common functions that may be designated core administrative functions include, but shall not be limited to, human resources, financial management, information technology, legal, procurement   and asset management.   All employees pe rforming functions so designated shall be employed directly by the chief executive officer.   The Authority may make such services available to the agencies, offices, divisions and commissions within the executive office of transportation through a written   interagency service agreement, provided that a copy of such agreement shall be provided to the house and senate committees on ways and means and the joint committee on transportation before services are provided.   The Authority shall charge the agencies, d epartments, offices, divisions, and commissions of the executive office of transportation for such services, subject to appropriation. 

(b) The Authority may enter into agreements under section 22A and 22B of chapter 7 of the General Laws and in all respects not governed by general or special laws expressly made applicable to the Authority shall adhere to good business practices to be determined by the Authority in its procurement of equipment, materials, property, supplies and services.

(c) The Autho rity shall use the state accounting system, the state payroll system and the state-supported internet application for procurement.  The Authority shall, to the maximum feasible extent, prioritize the elimination of redundant systems for asset management an d information technology. 

(d) Starting on December 15, 2009 and at six-month intervals thereafter, the chief executive officer of the Authority shall report to the joint committee on transportation, the joint committee on bonding, capital expenditures an d state assets and the house and senate committees on ways and means on the Authority’s progress in implementing the requirements of this section, the capital expenditures made by the Authority in implementing the requirements of this section and on the ad ministrative savings that have been achieved through the implementation of the requirements of this section.

 

Section 9.  The exercise of the powers granted by this chapter shall be in all respects for the benefit of the people of the commonwealth, for the increase of their commerce and prosperity and for the improvement of their health and living conditions and as the operation and maintenance of the state highway system or state public transit system by the authority shall constitute the performance of e ssential governmental functions, the authority shall not be required to pay any taxes or assessments upon the state highway system or state public transit system or any property acquired or used by the authority under the provisions of this chapter or upo n the income therefrom, except as may be otherwise provided by this chapter and the notes or bonds issued under the provisions of this chapter, their transfer and the income therefrom, including any profit made on the sale thereof, shall at all times be fr ee from taxation by and within the commonwealth.

 

Section 10.  (a) The authority is hereby authorized to charge and collect and from time to time fix and revise tolls for transit over the turnpike and the different parts or sections thereof, subject to suc h classifications of vehicles and manners of collection as the authority determines desirable and subject to provisions of clause ( j ) of section 4.  Such tolls shall be so fixed and adjusted as to provide, at a minimum, a fund sufficient with other revenue s, if any, to pay (a) costs incurred in furtherance of this chapter related to the turnpike including, but not limited to, the cost of owning, maintaining, repairing, reconstructing, improving, rehabilitating, policing, using, administering, controlling an d operating the turnpike; and (b) the principal of, redemption premium, if any, and the interest on notes or bonds relating to the turnpike as the same shall become due and payable and to create and maintain reserves established for any of the authority’s corporate purposes. Such tolls shall not be subject to supervision, regulation, approval or disapproval by any department, division, commission, board, bureau or agency of the commonwealth or any political subdivision thereof. The authority shall maintain the confidentiality of all information including, but not limited to, photographs or other recorded images and credit and account data, relative to account holders who participate in its electronic toll collection system. Such information shall not be a pu blic record and shall be used for enforcement purposes only with respect to toll collection regulations. An account holder may, upon written request to the authority, have access to all information pertaining solely to the account holder. For each violatio n of applicable authority regulations related to electronic toll collection, a violation notice shall be sent to the registered owner of the vehicle in violation. The notice shall include the registration number of the vehicle, the state of issuance of suc h registration and the date, time and place of the violation. The notice may be based in whole or in part upon inspection of any photographic or other recorded image of a vehicle and the written certification by a state police officer or other person emplo yed by or under contract with the authority or its electronic toll collection system contractor that it is so based shall be prima facie evidence of the facts contained therein and shall be admissible in any administrative or judicial proceeding to adjudic ate the liability for such violation.

 

Section 11.  The authority may take by eminent domain in accordance with the provisions of chapter seventy-nine or any alternative method now or hereafter provided by general law, any public land and any fee simple a bsolute or lesser interest in private property or part thereof or rights therein as it may deem necessary for carrying out the provisions of this chapter.

Whenever a parcel of private property so taken is used in whole or in part for residential purposes, the owner of such parcel may, within thirty days of the date of the authority’s notice to vacate such parcel, appeal to the authority for a postponement of the date set for such vacating, whereupon the authority shall grant to the owner a postponement of three months from the date of such appeal; provided, however, that the appeal for such postponement shall be in the form of a written request to the authority sent by registered mail, return receipt requested; and provided, further, that the provisions of section forty of said chapter seventy-nine shall govern the rights of the authority and of any person whose property shall be so taken.

The authority shall have power, in the process of constructing, reconstructing, repairing, rehabilitating, improving, p olicing, using or administering all or any part of the turnpike or metropolitan highway system to take by eminent domain pursuant to chapter seventy-nine, such land abutting the turnpike or metropolitan highway system as it may deem necessary or desirable for the purposes of removing or relocating all or any part of the facilities of any public utility, including rail lines, and may thereafter lease the same or convey an easement or any other interest therein to such utility company upon such terms as it, i n its sole discretion, may determine. Notwithstanding the provisions of any general or special law to the contrary, the relocation of the facilities of any public utility, including rail lines, in accordance with the provisions of this section shall be val id upon the filing of the plans thereof with the department of telecommunications and energy, if applicable.

Except as otherwise provided by law, any sale of real property shall be awarded, after advertisement for bids, to the bidder who is the highest re sponsible bidder. The authority shall have the right to reject all bids and to readvertise for bids. Before any real property shall be so sold or conveyed, notice that such real property is for sale shall be publicly advertised in two daily newspapers of g eneral circulation published in the city of Boston, and, if such real property is located in any other city or town, in a newspaper of general circulation published in such other city or town, once a week for three successive weeks. Such advertisements sha ll state the time and place where all pertinent information relative to the real property to be sold or conveyed may be obtained and the time and place of opening the bids in answer to such advertisements and that the authority reserves the right to reject any or all such bids. All bids in response to advertisements shall be sealed and shall be publicly opened by the authority. Said authority may require, as evidence of good faith, that a deposit of a reasonable sum, to be fixed by the authority, accompany the proposals. The provisions of this paragraph shall not be applicable to any sale of real property by the authority to the commonwealth or any city, town or public instrumentality nor to a sale of real property which is determined by the authority to hav e a fair market value of five thousand dollars or less.

The authority may sell the buildings or other structures upon any lands taken by it or may remove the same and shall sell, if a sale be practicable or, if not, shall lease, if a lease be practicable, any lands or rights or interest in lands or other property taken or purchased for the purposes of this chapter, whenever the same shall, in the opinion of the authority, cease to be needed for such purpose.

Notwithstanding the provisions of any general o r special law to the contrary, all counties, cities, towns and other political subdivisions and all public agencies, authorities and commissions of the commonwealth are hereby authorized and empowered to lease, lend, grant or convey to the authority at its request upon such terms and conditions as the proper authorities of such counties, cities, towns, political subdivisions, agencies, authorities and 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 real property, improvements or personal property which may be necessary or convenient to the effectuation of the authorized purposes of the authority, in cluding public roads, bridges and other real property, improvements or personal property already devoted to public use.

 

Section 12.  Notwithstanding the provisions of chapters one hundred and thirty-four and one hundred and forty-seven, if money, goods o r other property which has been abandoned, mislaid or lost on the premises of the authority comes into the possession of said authority and remains unclaimed for a period of one hundred and twenty days, the authority may sell the same, excepting money so u nclaimed, at public auction after notice of such sale has been published for three successive weeks in a newspaper published in the city or town wherein such sale shall occur. The net proceeds of such sale, after deducting the cost of storage and the expen ses of the sale, and all money so unclaimed, shall be paid into and become the property of the authority and may be applied by the authority to any of its corporate purposes. If such property is in the possession of the authority and remains unclaimed for a period of one hundred and twenty days and is of the value of three dollars or less, the authority may donate the same to a charitable organization.

 

Section 13.  The Authority and its employees shall be subject to the provisions of chapter one hundred a nd fifty E of the General Laws, and for purposes of said chapter, the Authority shall be deemed to be an employer or public employer and a legislative body. The Authority may designate a representative to act in its interest in labor relations matters wit h its employees. Rights and obligations under collective bargaining agreements with respect to employees transferred to the Authority , except to the extent expressly inconsistent with this act, shall be assumed by and imposed upon the Authority, and employ ees transferred to the Authority who are subject to such agreements shall continue to be represented by the employee organizations that are parties to such agreements until such time as they elect to be otherwise represented in accordance with the provisio ns of chapter one hundred and fifty E. Existing bargaining units as determined by the state labor relations commission shall remain in full force and effect for those employees transferred to the Authority until the expiration date of collective bargaining agreements covering such employees. No collective bargaining agreement entered into by the Authority, however, shall limit inherent management rights which shall include, without limiting the generality of the foregoing, the following: (i) employment, ass ignment, and promotion of employees and the determination of standards therefor, (ii) termination and discharge of employees, provided that any collective bargaining agreement may protect employees against such actions on arbitrary, capricious or unreasona ble grounds, (iii) determination of the Authority's levels of service, levels of staffing, and the methods, means and personnel for performing operations, (iv) supervision, control, and evaluation and establishment of productivity standards for employees, and (v) use of part-time regular employees and of independent contractors or vendors.

T he provisions of section 5 of chapter 150A shall so far as apt apply to the authority and its employees, excepting directors, executives and those confidential employee s representing the authority and dealing with employee organizations. Nothing in this section shall be construed as conferring upon the employees of the authority the right to strike, nor as detracting from the obligations of the authority and the employee s to submit all grievances and other disputes to arbitration.

 

Section 14 .  Whenever any employee or former employee of the authority dies, and the authority owes his estate any sum or sums by reason of services rendered by him for wages vacation allowance s, and neither a duly appointed executor or administrator nor a administrator has made written demand for payment upon the treasurer of the authority and treasurer shall not otherwise have actual notice that proceedings relative to the formal or settlement of such estate have been commenced in any probate court, such sum or sums may, in the discretion of the authority, be paid after the expiration of 30 days from the death of such employee to such person as may have been nominated as beneficiary, on a form approved by the directors and filed with the treasurer by such employee during his lifetime or, if there is no such beneficiary then to the surviving spouse or next of kin of such employee. Payments made as provided in this section shall discharge all liab ility of the authority to all persons with respect to such sum or sums.

 

Section 15 .  Notwithstanding the provisions of section 13 , the authority or any organizations representing employees of the authority shall not be permitted to submit any dispute over the terms of a collective bargaining agreement to arbitration except in accordance with sections 15 through 19 , inclusive; provid ed, however, that this section shall not limit the rights of organizations representing employees of the authority to submit grievances to arbitration in accordance with the collective bargaining agreement between the parties.

 

Section 16.   In the event the directors and any organizations representing employees of the authority have not reached an agreement within 90 days from the date of the expiration of the agreement, either party may notify the other that it desires mediation. The parti es may agree upon a person to serve as a mediator or, if unable to agree on said mediator, either party or the parties acting jointly may petition the board of conciliation and arbitration to appoint a mediator from a list of qualified persons maintained b y the board.

After a reasonable period of mediation, not to exceed 45 days from the date of appointment, said mediator shall issue a report indicating the results of his services in resolving the impasse. If at the conclusion of mediation the impasse stil l exists, the mediator shall so certify. In the event, the mediator shall certify in his report the last best offer of each party on each unresolved issue which has been submitted to mediation and shall also certify the agreement of the parties on each iss ue on which agreement has been reached and shall submit such certifications to the arbitrator selected by the parties. In such event, so long as the mediator shall also certify that the parties have bargained in good faith, either party may notify the othe r that it desires arbitration of the dispute. Within 10 days of said notice, the parties shall meet to select a single neutral arbitrator. If, within 15 days, the parties fail to select such single arbitrator, either party may forthwith petition the board of conciliation and arbitration to request a list of five arbitrators from the American Arbitration Association and said Association shall certify to the board that such arbitrators on the list it provides possess the qualifications as provided in section 30. The parties shall thereupon meet to select such arbitrator by striking one name each until one name remains and that person shall serve as the neutral arbitrator. If, after 10 days, one of the parties declines to strike their names, the other party sha ll strike two names and the board shall forthwith select the arbitrator from the remaining three names.

 

Section 17 .  The single arbitrator, whether agreed upon by the parties or selected by the board of conciliation and arbitration, shall be a legal resi dent of the commonwealth and shall be experienced in state and local finance.

 

Section 18.  The arbitrator shall rely primarily on the following factors in determining the basis for an award:

(a) The financial ability of the authority to meet additional c osts, which shall include but not be limited to: (i) the statutory requirement that the authority produce revenues in excess of expenses; (ii) the financial ability of the individual communities and the commonwealth to meet additional costs; (iii) the aver age per capita tax burden, average annual income and sources of revenue within the commonwealth, and the effect of any arbitration award on the respective property tax rates of the cities and towns within the authority’s district.

(b) The overall compensa tion presently received by the employees, having regard not only for wages for time actually worked but also for wages for time not worked, including vacations, holidays and other excused time.

(c) All benefits received by the employees, including insuran ce, pension, as well as the continuity and stability of employment.

(d) The hazards of employment, physical, educational and mental qualifications, job training and skills involved.

(e) A comparison of wages, hours, and conditions of employment of the em ployees involved in the arbitration proceedings with the wages, hours and conditions of employment of other employees performing similar services within the commonwealth and with other employees generally in public and private employment within the commonw ealth.

(f) The average consumer price for goods and services, commonly known as the cost of living.

(g) Changes in any of the foregoing circumstances during the pendency of the arbitration proceedings.

(h) Such other factors, not confined to the foregoi ng, which are normally or traditionally taken into consideration in the determination of wages, hours and conditions of employment through voluntary collective bargaining, mediation, fact-finding, arbitration or otherwise between parties, in the public ser vice of the commonwealth, and which are not precluded from bargaining under section 13.

(i) The stipulation of the parties.

 

Section 19.  The arbitrator shall be limited in making his award to choosing between the last best offers of the parties on each issue as certified in the mediator’s report or any award in the range between the last best offers of the parties. The arbitrator shall make no award on any issue found by him to be not authorized by law to be submitted to arbitration, but shall state such finding in his written opinion. Within 30 calendar days of an award, the arbitrator shall issue a written opinion inclusive of an analysis of all statutory factors applicable to the proceedings. Any determination by the arbitrator, if supported by materia l and substantial evidence on the record, shall be binding upon the parties and upon the appropriate legislative or appropriating body and may be enforced at the insistence of either party or by the arbitrator in the superior court. The scope of arbitratio n shall be limited to wages, hours, and conditions of employment and shall not include any provisions for any cost of living adjustment which are based on changes in the consumer price index after the expiration of the contract period covered by the award. In addition, any wage or salary adjustments shall be expressed in percent or dollar amounts, and in no case shall there be any provision for salary adjustments to occur after the expiration of the contract period covered by the award.

The cost, if any, o f the mediation and of arbitration proceedings exclusive of the expenses of the individual parties provided for under sections 15 to 19, inclusive, shall be divided equally by the parties and shall be in accordance with a schedule of payments established b y the American Arbitration Association.

Section 20.  All sums of money payable under the provisions of sections 31, 34, 34A, 35 and 35A of chapter 152 directly to a retired member of the Massachusetts Bay Transportation Authority retirement system or to the legal representative or dependents of a deceased member on account of his death, including so much of the amount of any lump sum settlement payable under the provisions of such sections directly to any such persons as is allocable to the period follow ing the retirement or death of such member, but excluding any payments for or amounts allocable to any period to the date his retirement allowance became effective, shall be offset against and payable in lieu of any pension payable on his account by reason of the same injury, but not against his accumulated total deductions or any annuity derived therefrom. If any such pension exceeds the compensation payable on account of such member under such provisions of chapter 152 when both are reduced to the same pe riodical basis, the excess only shall be paid as a pension so long as such compensation continues. If any such pension is less than or equal to such compensation, no pension shall be paid so long as such compensation continues to be equal to or greater tha n such pension.

In all cases where a member or a beneficiary receives delayed compensation payments or an amount of any lump sum settlement payable directly to him under the provisions of sections 31, 34, 34A, 35 or 35A of chapter 152 subsequent to his re ceipt of payments under any pension granted under the provisions of the Massachusetts Bay Transportation Authority retirement system by reason of the same injury, no further pension payments shall be made unless and until such time as the total amounts whi ch by then would have been payable as compensation and pension together, if there had been no delay in making such compensation payments, shall exceed the total amounts of compensation and pension actually paid by them after due allowance in either case fo r the allocation of any such lump sum settlement.

If a member or a beneficiary entitled to a pension under the provisions of the Massachusetts Bay Transportation Authority retirement system, and also having a right to compensation under the provisions of chapter 152 by reason of the same injury or death of such member, as the case may be, neglects or fails to prosecute fully such right or to cooperate with the Massachusetts Bay Transportation Authority retirement system in its prosecution thereof, as provi ded for by the provisions of section 73 of such chapter, said board may, during the period of such neglect or failure, suspend such member’s or beneficiary’s right to further payment. Under the circumstances set forth in the said section 73, the duty of th e board to prosecute shall be mandatory.

 

Section 21.  The Authority shall adopt an annual budget for its current expenses which budget the Authority shall have submitted for comment and recommendation to the advisory board for each division not less than sixty days prior to the adoption thereof. Except in case of an emergency, no current expenses may be incurred in excess of those shown in the annual current expense budget. The Authority may from time to time adopt amendments to current expense budgets w hich the Authority shall have submitted for comment and recommendation to the advisory board for each division not less than 30 days prior to the adoption thereof. The Authority periodically shall also adopt and revise capital expenditure budgets for the c apital facility programs developed by the executive office of transportation. The current expense and capital expenditure budgets of the Authority shall be deemed not to be regulations or adjudications for purposes of chapter thirty A of the General Laws. Proposed capital expenditure budgets shall be submitted to the advisory board for each division for such consultation no less than 60 days prior to adoption or revision by the Authority. The Authority shall prepare a written response to reports respecting its finances submitted to it by the advisory board for each division which response shall state the basis for any substantial divergence between the actions of the Authority and the recommendations contained in such reports of the advisory board. The Autho rity shall be deemed to be a public agency subject to the recordkeeping and reporting requirements of paragraph (4) of section forty A of chapter seven of the General Laws.

The authority shall establish a Stabilization Fund into which it shall deposit rev enues in excess of expenses pursuant to section 30 until the fund balance is equal to or greater than 5 per cent of total revenues of the fiscal year most recently ended. The authority may draw funds from the Stabilization Fund only in the event that, afte r implementing all efficiencies and savings possible, annual revenues are projected to be less than annual expenses, or if it has insufficient funds on-hand to pay current expenses. The authority may not assume draws from the Stabilization Fund in preparin g its budget pursuant to this section. In the event the authority draws funds from the Stabilization Fund, it shall file with the secretary of administration and finance, the secretary of transportation and construction, the joint committee on transportati on and the house and senate committees on ways and means a financial plan that projects to produce in the following fiscal year an excess of revenues over expenses.

The authority shall also establish a Toll and Fare Stability Fund, into which it shall dep osit revenues in excess of expenses pursuant to section 30. The authority may assume draws from the Fare Stability Fund in preparing its budget pursuant to this section. Funds in said Fare Stability Fund shall be utilized within five fiscal years after bei ng deposited.

 

Section 22.  (a) The Authority may provide, by resolution of the board of directors, for the issuance from time to time of bonds of the Authority for any of its corporate purposes or for the borrowing of money in anticipation of the issuance of such bonds. Bonds issued by the Authority may be issued as general obligations of the Authority or as special obligations payable solely for particular revenues or funds as may be provided for in any bond resolution, trust agreement or other agreement securing bonds. The Authority may also provide by resolution of the board of directors for the issuance from time to time of temporary notes in anticipation of the revenues to be collected or received by the Authority, or in anticipation of the receipt' of other grants or aid. The issue of such notes shall be governed by the provisions of this act relating to the issue of bonds of the Authority other than such temporary notes as the same may be applicable; provided, however, that notes issued in anticipatio n of revenues shall mature no later than one year from their respective dates and notes issued in anticipation of grants, or other aid and renewals thereof, shall mature no later than six months after the expected date of receipt of such grant or aid. The aggregate principal amount of all bonds issued under this act shall not exceed $10,000,000,000 outstanding at any 1 time; provided, however, that bonds for the payment of redemption of which, either at or prior to maturity, refunding bonds shall have been issued shall be excluded in the computation of outstanding bonds.

(b) Bonds of each issue shall be dated, may bear interest at such rate or rates, including rates variable from time to time as determined by an index, banker's loan rate or other method dete rmined by the Authority, and shall mature or otherwise be payable at such time or times, as may be determined by the Authority, and may be made redeemable before maturity at the option of the Authority or the holder thereof at such price or prices and unde r such terms and conditions as may be fixed by the Authority. Prior to the initial issuance of each series of bonds the Authority shall advise the advisory boards created by chapter 81C and 81D, the finance advisory board established in section 97 of chapt er 6 and the executive office for administration and finance of the timing and terms thereof. The Authority shall determine the form of bonds, including interest coupons, if any, to be attached thereto, and the manner of execution of such bonds, and shall fix the denomination or denominations of such bonds and the place or places of payment of principal, redemption premium, if any, and interest, which may be at any bank or trust company within or without the commonwealth. In case any officer whose signature or a facsimile of whose signature shall appear on any bonds or coupons shall cease to be such officer before the delivery thereof, such signature or facsimile shall nevertheless be valid and sufficient for all purposes as if such officer had remained in o ffice until delivery. The Authority may provide for authentication of bonds by a trustee, fiscal agent, registrar or transfer agent. Bonds may be issued in bearer or in registered form, or both, and, if notes, may be made payable to bearer or to order, as the Authority may determine, and provision may be made for the registration of any coupon bonds as to principal alone and also as to both principal and interest, for the reconversion into coupon bonds of bonds registered as to both principal and interest a nd for the interchange of bonds registered as to both principal and interest and for the interchange of registered and coupon bonds. The Authority may also establish and maintain a system of registration for any bonds whereby the name of the registered own er, the rights evidenced by the bonds, the transfer of the bonds and such rights and other similar matters are recorded in books or other records maintained by or on behalf of the Authority, and no instrument evidencing such bond or rights need be delivere d to the registered owner by the Authority. A copy of the books or other records of the Authority pertaining to any bond registered under such registration system certified by an authorized officer of the Authority or by the agent of the Authority maintain ing such system shall be admissible in any proceeding without further authentication. The Authority may adopt regulations with respect to the operation of such system. The board of directors may by resolution delegate to any director or directors or office r or officers of the Authority or any combination thereof the power to determine any of the matters set forth in this section. In the discretion of the Authority, bonds of the Authority may be issued with such terms as will cause the interest thereon to be subject to federal income taxation. The Authority may sell its bonds in the manner, either at public or private sale, for the price, at the rate or rates of interest, or at discount in lieu of interest, as it may determine will best effect the purposes of this act.

(c) Said Authority may issue interim receipts or temporary bonds, with or without coupons, exchangeable for definitive bonds when the bonds shall have been executed and are available for delivery. The Authority may also provide for replacement of any bonds which shall have become mutilated or shall have been destroyed or lost. The Authority, by itself or through such agent as it may select, may purchase and invite offers to tender for purchase any bonds of the Authority at any time outstanding, provided, however, that no such purchase by the Authority shall be made at a price, exclusive of accrued interest, if any, exceeding the principal amount thereof or, if greater, the redemption price of such bonds when next redeemable at the option of the A uthority, and may resell any bonds it determines will best effect the purposes of this act.

(d) In the discretion of the board of directors, any bonds issued hereunder may be secured by a bond resolution or trust agreement or other agreement in such form and executed in such manner as may be determined by the board of directors between the Authority and the purchasers or holders of such bonds or between the Authority and a corporate trustee which may be any trust company or bank having the powers of a trus t company within or without the commonwealth. A trust agreement may pledge or assign, in whole or in part, any receipts, fees, revenues or other payments received or to be received by the authority, including without limitation amounts provided to the trus t in accordance with section 35LL of chapter 10, grants, appropriations or other assistance from the commonwealth or the United States or any political subdivision or instrumentality of either, investment earnings on its funds and accounts and any other fe es, charges or other income received or receivable by the authority and any contract or other rights to receive the same, whether then existing or thereafter coming into existence, and whether then held or thereafter acquired by the trust, and the proceeds thereof. A trust agreement may contain, without limitation, provisions for protecting and enforcing the rights, security and remedies of the bondholders, provisions defining defaults and establishing remedies, which may include acceleration and may also c ontain restrictions on remedies by individual bondholders. A trust agreement may also contain covenants of the trust concerning the custody, investment and application of moneys, the issuance of additional or refunding bonds, the use of any surplus bond pr oceeds, the establishment of reserves and the regulation of other matters customarily treated in trust agreements. At the request of the authority, the state treasurer shall join in any trust agreement or to otherwise agree with the authority, any lender o r any trustee for bondholders to hold the Surface Transportation Trust Fund, establish ed pursuant to said section 35LL of said chapter 10, in compliance with any covenants and provisions relating thereto in any trust agreement.  In no circumstances shall t he Authority mortgage its real property or fixed assets to secure its bonds.

(e) (1) Bonds may be issued by the authority in the form of lines of credit or other banking arrangements under terms and conditions determined by the authority. In addition to o ther lawful security, bonds may be secured, in whole or in part, by financial guaranties, by insurance, by letters or lines of credit or by other credit enhancement issued to the authority or to a trustee or other person, by any bank, trust company, insura nce or surety company or other financial institution, within or without the commonwealth. The authority may pledge or assign, in whole or in part, revenues, funds or other assets or property held or to be received by the authority, and any contract or othe r rights to receive the same, whether then existing or thereafter coming into existence and whether then held or thereafter acquired by the authority, and the proceeds thereof, as security for any such guaranties or insurance or for the reimbursement to an y issuer of a line or letter of credit.

(2) The Authority shall comply with all regulations and guidelines promulgated by the finance advisory board established in section 97 of chapter 6.  At least 10 business days before entering into any security tran saction involving a derivative financial product, the Authority shall notify the finance advisory board of its intent to enter into such a transaction. For purposes of the preceding sentence, “derivative financial product” shall mean financial instruments with values derived from or based upon the value of other assets or on the level of an interest rate index including, but not limited to, a call option on a bond, an interest rate swaptions, caps, floors, collars, inverse floaters, auction rate securities or any other financial transaction other than fixed-rate, long-term borrowing.

(f) It shall be lawful for any bank or trust company to act as a depository or trustee of the proceeds of bonds, revenues or other moneys under a bond resolution, trust agreemen t or other agreement of the Authority and to furnish indemnification and to provide security as may be required by the Authority. Any pledge of revenues and other funds made by the Authority under the provisions of this act shall be valid and binding and s hall be deemed continuously perfected for the purposes of the uniform commercial code and other laws when such pledge is made. The revenues and funds, rights therein and thereto and proceeds so pledged and then held or thereafter acquired or received by th e Authority shall immediately be subject to the lien of such pledge without any physical delivery or segregation thereof or further act, and the lien of any such pledge shall be valid and binding against all parties having claims of any kind in tort, contr act or otherwise against the Authority, whether or not such parties have notice thereof. The bond resolution, trust agreement or any other agreement by which a pledge is created need not be filed or recorded to perfect such pledge except in the records of the Authority and no filing need be made under the uniform commercial code. It is hereby declared that any pledge or assignment made under the Authority of this act is an exercise of the political and governmental powers of the Authority, and revenues or f unds, contract or other rights to receive the same and the proceeds thereof which are subject to the lien of a pledge or assignment created under this act shall not be applied to any purposes not permitted by such pledge or assignment.

(g) Any holder of a bond issued by the Authority under the provisions of the act or of any of the coupons appertaining thereto and any trustee or other representative under a bond resolution, trust agreement or other agreement securing the same, except to the extent the righ ts herein given may be restricted by the resolution, trust agreement or other agreement, may bring suit upon the bonds or coupons and may, either at law or in equity, by suit, action, mandamus, or other proceeding for legal or equitable relief, including p roceedings for the appointment of a receiver to take possession and control of the business and properties of the Authority, to operate and maintain the same, to make any necessary repairs, renewals and replacements in respect thereof and to fix, revise an d collect charges, protect and enforce any and all rights under the laws of the commonwealth or granted hereunder or under such bond resolution, trust agreement or other agreement, and may enforce and compel performance of all duties required by this act o r by such bond resolution, trust agreement or other agreement, to be performed by the Authority or by any officer thereof.

(h) Before the issuance of any bonds of the Authority each member of the board of directors and each officer of the Authority charge d with responsibility for the issuance thereof shall execute a surety bond conditioned on the faithful performance of the duties of the office of each such director and officer, in the sum of one hundred thousand dollars payable to the Authority, or, in li eu thereof, the Authority shall obtain a blanket bond in the same amount covering all such persons, and such bonds or bonds shall be filed in the office of the secretary of the commonwealth.

 

Section 23 . Said Authority may issue refunding bonds for the pu rpose of paying any of its bonds issued pursuant to this act at or prior to maturity or upon acceleration or redemption or purchase and retirement. Refunding bonds may be issued at such times at or prior to the maturity, redemption or purchase and retireme nt of the refunded bonds as the board of directors deems to be in the interest of said Authority. Refunding bonds may be issued in sufficient amounts to pay or provide for payment of the principal of the bonds being refunded, together with any redemption p remium thereon, any interest or discount accrued or to accrue to the date of payment of such bonds, the costs of issuance of the refunding bonds, the expenses of paying, redeeming or purchasing the bonds being refunded, the costs of holding and investing p roceeds of refunding bonds pending such payment, redemption or purchase and such reserves for debt service or other capital or current expenses from the proceeds of such refunding bonds as may be required by a bond resolution, trust agreement or other agre ement securing bonds. The issue and sale of refunding bonds, the maturities and other details thereof, the security therefor, the rights of the holders thereof, and the rights, duties and obligations of the Authority in respect of the same shall be governe d by the provisions of this act relating to the issue of bonds other than refunding bonds insofar as the same may be applicable.

 

Section 24 . Bonds issued by said Authority are hereby made securities in which all public officers and agencies of the common wealth and its political subdivisions, all insurance companies, trust companies in their commercial departments, savings banks, cooperative banks, banking associations, investment companies, executors, administrators, trustees and other fiduciaries may pro perly invest funds, including capital in their control or belonging to them. Such bonds are hereby made securities which may properly be deposited with and received by any state or municipal officer of any agency or political subdivision of the commonwealt h for any purpose for which the deposit of bonds or obligations of the commonwealth or any political subdivision is now or may hereafter be authorized by law.

 

Section 25 . Bonds may be issued under this act without obtaining the consent of any executive of fice, department, division, commission, board, bureau or agency of the commonwealth or any political subdivision thereof, and without any other proceedings or the happening of any condition or acts other than those proceedings, conditions or acts which are specifically required therefor, and the validity of and security for any bonds issued by the Authority pursuant to this act shall not be affected by the existence or nonexistence of any such consent or other proceedings, conditions or acts. Provisions of this act relating to the preparation, adoption or approval of programs and budgets shall not affect the issue of bonds and bonds may be issued either before or after such preparation, adoption or approval.

 

Section 26 . Bonds issued under the provisions o f this chapter shall not be deemed to be a debt or a pledge of the faith and credit of the commonwealth or of any of its political subdivisions, but shall be payable solely from the funds of the Authority from which they are made payable pursuant to this a ct. Bonds issued under the provisions of this chapter shall recite that neither the commonwealth nor any political subdivisions thereof shall be obligated to pay the same and that neither the faith and credit nor the taxing power of the commonwealth or of any political subdivision thereof is pledged to the payment of the principal of or interest on such bonds. Further, every bond shall recite whether it is a general obligation of the Authority or a special obligation thereof payable solely from particular r evenues or funds pledged to its payment. The aggregate principal amount of all bonds issued under this act shall not exceed $10,000,000,000 outstanding at any 1 time; provided, however, that bonds for the payment of redemption of which, either at or prior to maturity, refunding bonds shall have been issued shall be excluded in the computation of outstanding bonds .

 

Section 27.  Notwithstanding any of the provisions of this act or any recitals in any bonds issued hereunder, all such bonds shall be deemed to be investment securities under the uniform commercial code.

 

Section 28.  All moneys received pursuant to the provisions of this chapter, whether as proceeds from the issue of bonds or as revenues or otherwise, shall be deemed to be trust funds to be held and applied solely as provided in this chapter. The resolution authorizing the notes or bonds or the trust agreement securing such notes or bonds shall provide that any officer with whom, or any bank or trust company with which, such moneys shall be depo sited shall act as trustee of such moneys and shall hold and apply the same for the purposes hereof, subject to such regulations as this chapter and such resolution or trust agreement may provide .

 

Section 29.  (a) The Authority, shall, at all times, keep full and accurate accounts of its receipts, expenditures, disbursements, assets and liabilities which shall be open to inspection by any officer or duly appointed agent of the commonwealth. Said Authority shall submit an annual report, in writing, to the governor, the president of the senate, the speaker of the house of representatives, the chairman of the senate committee on ways and means, the chairman of the house committee on ways and means and the chairmen o f the joint committee on transportation. Said report shall include audited financial statements by an independent accounting firm relating to the operations, properties, and capital facility expenditures, including costs of land acquisitions, of the Author ity maintained in accordance with generally accepted accounting principles so far as applicable, beginning with the fiscal year of the Authority commencing July 1, 2009, and audited by an independent certified public accountant firm.

(b) Not later than De cember 31, 2011 and every five years thereafter, the Authority shall submit to the governor, the president of the senate, the speaker of the house of representatives, the chairman of the senate committee on ways and means, the chairman of the house committ ee on ways and means and the chairmen of the joint committee on transportation a progress report on the Authority's attainment of its statutory purposes. Each such five-year progress report shall be prepared by the Authority with the assistance of an indep endent citizen panel which shall include persons selected by the Authority and approved by the respective advisory boards who are experienced in environmental protection, civil engineering and public management and finance. Said reports shall include recom mendations concerning the future activities of the Authority including, but not limited to, changes in the provisions of this act or the Authority's administrative procedures necessary or desirable for improving the delivery of services. The costs of prepa ring the reports of said Authority shall be provided for in the current expense budgets of said Authority.

 

Section 30.  Annual revenues in excess of expenses shall be allocated in the following order:

(a) to fully fund all debt service reserves required under the trust agreements of any bonds of the authority then outstanding, and to fund in advance the debt service reserve requirements of any bond issuances planned for the upcoming fiscal year, in each case to the extent required by an applicable bond r esolution or trust agreement securing bonds of the authority;

(b) to fund the Stabilization Fund established pursuant to the second paragraph of section 21;

(c) 50 per cent of any revenues in excess of expenses remaining after all debt service reserve re quirement and the Stabilization Fund are fully funded shall be deposited in the Toll and Fare Stability Fund established pursuant to the third paragraph of section 21;

(d) 50 per cent of any revenues in excess of expenses remaining after all debt service reserve requirement and the Stabilization Fund are fully funded shall pay for capital improvements in lieu of bond proceeds or be applied to the retirement of outstanding bonds.

 

Section 32 .   The Authority shall be a public employer as defined in section 1 of chapter 258 of the General Laws.

 

Section 33.  The Authority shall be deemed to be a public agency for purposes of, and shall be subject to, sections forty-four A to forty-four H, inclusive, of chapter one hundred and forty-nine of the General Laws, a nd section thirty-nine M of chapter thirty of the General Laws, and shall comply with requirements applicable to an independent public authority for publication of contract information in the central register established under section twenty A of chapter n ine of the General Laws. The Authority shall not be subject to supervision under section twenty-two of chapter seven of the General Laws, but may enter into agreements under section twenty-two A and twenty-two B of chapter seven of the General Laws and in all respects not governed by general or special laws expressly made applicable to the Authority shall adhere to good business practices to be determined by the Authority in its procurement of equipment, materials, property, supplies and services.

 

Section 34.  (a) All local bodies and all public agencies, instrumentalities, commissions and authorities of the commonwealth are hereby authorized and empowered to undertake activities, programs and projects in conjunction with the Authority in furtherance of th e purposes of this act, including without limiting the generality of the foregoing, to join in investigations and studies, and to grant applications and applications for project approvals.

(b) Except with respect to real property acquired or held for purp oses described in Article XCVII of the Amendments to the Constitution, all local bodies and all public agencies, instrumentalities, commissions and authorities of the commonwealth, are hereby authorized and empowered to lease, lend, grant or convey to the Authority upon such terms and conditions as the proper authorities of such public bodies, public agencies, instrumentalities, commissions and authorities of the commonwealth may deem appropriate and without the necessity of any action or formality other th an the regular and formal action of said public bodies, agencies, instrumentalities, commissions and authorities of the commonwealth any interest in any real or personal property which may be necessary or convenient to effect the purposes of the Authority.

 

Section 35.  Under this act (i) no lands or easements taken or acquired for the purposes authorized by article 97 of the Amendments to the Constitution of the Commonwealth shall be used for other purposes or disposed of, and (ii) no lands devoted to the public use shall be diverted to another inconsistent public use, except in all instances in accordance with the laws and the Constitution of the Commonwealth.

 

Section 36.  The superior court department of the trial court shall have jurisdiction to enforc e rights and duties created by the provisions of this chapter, and on complaint of the Authority may restrain violations of the Authority's regulations and otherwise enforce by any appropriate remedy, including without limiting the generality of the forego ing, injunctive relief, the regulations, licenses, permits, orders, penalties and charges of the Authority. Penalties and charges established by or under authorization of this chapter shall be collected for the account of the Authority and paid over to the Authority. Except for rights of action expressly conferred upon the Authority, no provision of this chapter shall create private rights of action in enforcement proceedings.

 

Section 37.  Notwithstanding the provisions of any general or special law or pro vision of this act to the contrary, no officer of the Authority shall enter into any consent decree in any court of any jurisdiction without prior approval of the governor .

 

Section 38 .   The Authority and its corporate existence shall continue until terminated by law; provided, however, that no such law shall take effect so long as said Authority shall have bonds outstanding without adequate provision for the complete payment or satisfac tion thereof. Upon termination of the Authority, the title to all funds and other properties owned by it which remain after the payment or satisfaction of all bonds of the Authority shall vest in the commonwealth. The obligations, debts and liabilities of the Authority shall be assumed by and imposed upon the commonwealth.

 

Section 39.  The provisions of chapter twelve A of the General laws shall apply to the authority.

 

Section 40.  There shall be an internal special audit unit within the Authority which shall monitor the quality, efficiency and integrity of the Authority’s operating and capital programs and seek to prevent, detect and correct fraud, waste and abuse in the expenditure of public or private transportation funds.  The unit shall be headed by a d irector , who shall be appointed by the secretary of transportation.  Employees of the internal special audit unit shall have experience with accounting, auditing, financial analysis, applicable law, business manage ment, and public administration, shall devote their full-time efforts to the unit and shall not be assigned direct operating responsibilities. 

At any time, the d irector may report and refer his findings to the I nspector General so that he may conduct an investigation as defined in Chapter 12A and the results of said investigation may be referred to the Attorney General for appropriate action.  

 

Section 41.  Notwithstanding any general or special law to the contrary, the Massachusetts Surface Transportation Authority shall not seek federal approval for , nor undertake the design, installation and construction of , new toll facilities on the state highway system in the Commonwealth without the prior written approval of the Secretary of Transportation. 

 

CHAPTER 81C

The Division of Roads and Bridges

Section 1.  (a) Without limiting the generality of the powers granted to the authority under the provisions of chapter 81B or other provisions of this chapter, the following provisions are made for the operation, improvement and construction of the state highway system.

(b)  There is hereby established a division of roads and bridges within the authority.  The division shall consist of the following bureaus: administrative services, parkway maintenance, highway engineering, highway construction, and highway maintenance.  Each such bureau shall be under the direction, control and supervision of the administrator of the division of roads and bridges, as defined in section 2 of this chapter.  The administrator shall assign to all officials, agents and e mployees of the bureaus their respective duties.

 

Section 2.  The division shall be under the direction of an administrator, who shall be appointed by the chief executive officer of the Massachusetts surface transportation authority and who shall serve at his pleasure. The administrator shall be responsible for administering and enforcing the provisions of this chapter relative to the administration of each bureau or other section thereof under his control and supervision unless otherwise provided herein, s ubject to the supervision of the chief executive officer of the authority.

The administrator shall be exempt from chapter 31 and the position of administrator shall be classified in accordance with section 45 of chapter 30 and the salary shall be determine d in accordance with section 46C of said chapter 30. The administrator shall be appointed with due regard to his fitness, by reason of his experience in matters relating to transportation infrastructure, including roads and bridges, such as their construct ion, operations, financing or other relevant experience relative to the efficient exercise of his powers and duties. The commissioner shall administer this section and the General Laws, rules and regulations that grant powers to or impose duties upon the d ivision               , subject to the supervision of the chief executive officer.

(a) The administrator shall establish a procedure for recommending to the chief executive officer approval or disapproval of all contracts, including specifications, made by the division, and any changes, alterations, amendments, or modifications thereof and for contract appeals of all claims made under any contract with the division with the exception of claims subject to section 39Q of chapter 30. Any person aggrieved by a decision of th e chief executive officer acting in regard to contract appeals may bring suit against the authority for recovery of damages based on such claim under the provisions of chapter 258.

              To assist the chief executive officer and administrator in performing this function, the chief executive officer may appoint and remove a person of legal training and experience, who shall be a member of the bar of the commonwealth, to the position of hearing examiner. The hearing examiner shall devote full time during business hours to the duties of his position. The position shall be classified in accordance with section 45 of chapter 30 and the salary shall be determined in accordance with section 46C of said chapter 30. The chief executive officer may refer any dispute concer ning contracts, contract specifications or the execution of contracts not subject to the aforesaid section 39Q of said chapter 30 to the hearing examiner for a report on the matter including a recommendation as to the disposition of the dispute.

The hearin g examiner shall hear all claims by contractors from determinations of the department with the exception of claims subject to said section 39Q of said chapter 30; and shall, after hearing, render to the chief executive officer a report of the matter includ ing a recommendation as to the disposition of the claim. Said examiner shall at the request of the contractor or of the division or on his own motion summon witnesses and require the production of books and records and take testimony under oath. Such repor ts shall be maintained as public records in a place and form fully accessible to the public.

(b) The administrator shall appoint and may remove all employees in the division, subject to the approval of the chief executive officer of the authority. Except a s provided in this chapter or as otherwise provided by law, all such appointments and removals shall be made in accordance with the provisions of chapter 31. From time to time the administrator may, subject to appropriation and regulation, employ such cons ultants as he may consider necessary, provided that consultants shall be engaged to perform only those services for the division which regular employees of the division are unable to perform owing to lack of special expertise or other inability to perform such services on the schedule or in the manner required by the division .

              The administrator may appoint and remove without regard to chapter 31, but with the approval of the chief executive officer, a chief engineer; 5 deputy chief engineers; an assistant chief engineer; a highway and structures engineer; a bridge engineer; highway engineers; parkway engineers; district highway engineers; a director to serve in the division of administrative services; 4 executive assistants to the administrator; a director of the right of way bureau; and a director of public information. The total number of appointments to be made by the administrator under this paragraph shall not exceed 35. No person holding an appointment under this paragraph shall be subject to chapter 3 1 or section 9A of chapter 30. Nothing in this section shall be deemed to exempt the positions named herein from sections 45 to 50, inclusive, of said chapter 30. So far as practicable in the judgment of the administrator, appointments to said positions no t classified under said chapter 31 shall be made by promoting employees of the division serving in positions so classified. Any person appointed to the position of chief engineer, deputy chief engineer, assistant chief engineer, highway and structures engi neer, bridge engineer, parkway engineer, highway engineer or district highway engineer, shall be a person of experience and skill as an engineer and shall be: (i) an employee of the bureau holding an office or position classified under said chapter 31 with permanent status of senior civil engineer or higher; (ii) a registered professional engineer; or (iii) a person who has received the degree of bachelor of science in an appropriate engineering discipline from an accredited college or university. Where an employee of the division having permanent status in a position classified under or having tenure by reason of section 9A of said chapter 30 is so promoted to such unclassified position, upon termination of service in such unclassified position the employee shall be restored to the position from which he was promoted; or to a position equivalent thereto in the salary grade in the same state agency; or if he had been promoted in accordance with said chapter 31 during promotion in the unclassified position, to the position to which he was so promoted or to a position equivalent thereto in salary grade in the same state agency. In cases of restoration under said chapter 31, or under said section 9A of said chapter 30, such restoration shall be without impairment of civil service status or tenure under said section 9A, and without loss of the seniority, retirement and other rights to which uninterrupted service in the position would have entitled the employee; provided, however, that if his service in such unclass ified position has been terminated for cause, the employee's right to be restored shall be determined by section 43 of said chapter 31. During the period of such appointment the person so appointed shall be eligible to take any competitive promotional exam ination for which he or she would otherwise have been eligible.

              (c) The administrator shall from time to time establish such bureaus, sections, and district and other offices as shall be necessary for efficient and economical administration of the divisio n, and, if necessary for such purpose, may from time to time with the approval of the chief executive officer consolidate or abolish the same. The administrator shall prepare and keep current a general statement of the organization of the division, of the assignment of functions to its various administrative units, officials and employees, and of the established places at which and the methods whereby the public may secure information or make requests, such statement to be known as the division’s “descripti on of organization”. He shall file with the state secretary an attested copy of such description and of each amendment thereto.

(d) With the approval of the personnel director, the chief executive officer may establish in the division of roads and bridges a program of engineering internship and, may recruit qualified persons to serve in the division as highway engineer interns.

The number of persons employed in the division as highway engineer interns shall at no time exceed seven, nor may such highway eng ineer interns employed by the division be placed in a salary grade higher than that of a junior civil engineer in the division.

No person shall be appointed or employed as a highway engineer intern except upon requisition made by the administrator and upo n certification by the personnel director from an eligible list prepared in accordance with the provisions of chapter thirty-one and the rules made thereunder; provided, that the personnel director shall establish such eligible list before June first in ea ch calendar year by holding a competitive examination which shall be open only to persons who, as candidates for the degree of bachelor of science in engineering are enrolled in at least the junior year as students in any college of the commonwealth, or ar e Massachusetts residents attending a college of recognized standing outside the commonwealth, and to persons who, within the four years next preceding, have been awarded the degree of bachelor of science in engineering from a college of recognized standin g. The eligible list established each year shall expire upon the establishment of the eligible list in the following year. No person shall be certified for appointment as a highway engineer intern unless he has been awarded the degree of bachelor of scienc e in engineering.

Upon appointment as a highway engineer intern, made in accordance with chapter thirty-one of the General Laws and the rules made thereunder, the appointee shall sign an agreement binding him to serve as highway engineer intern for a mini mum of two years unless his employment is sooner terminated by the administrator. It shall be the duty of the administrator to rotate the assignments of each intern during his period of employment in order that he may acquire diversified experience in the engineering programs of the division.

The names of persons appointed as highway engineer interns shall be entered in order of date of appointment on a list to be known as “Highway Engineer Intern List” in the division of civil service.

Upon completion of two years of employment as interns under agreements provided for in this section, persons shall be eligible without further examination for appointment as junior civil engineers providing a vacancy exists in said title in the division and, upon requisitio n of the administrator, the names of such persons shall be certified for appointment by the personnel director from the Highway Engineer Intern List, in accordance with the rules of the civil service commission, except that the basis of certification shall be the order of appointment to such Highway Engineer Intern List.

(e) The administrator may establish a co-operative engineer program and may enter into agreements with colleges of recognized standing within the commonwealth, including colleges which have summer programs, which have established a curriculum leading to a degree of bachelor of science in engineering on a so-called co-operative basis, contemplating regularly rotating work activity in the field of engineering and an equal period of classroom t raining. He may employ persons enrolled as candidates for the degree of bachelor of science in engineering in any such colleges to serve in the division in the position of student engineer, provided that the position of student engineer shall be in a grade lower than that of junior civil engineer in the division, and provided that at no time shall the number of persons employed in the division as student engineers exceed eight. Upon completion of not less than two years of employment as student engineer, a person shall be eligible to apply for the examination for highway engineer intern. No person shall be employed as a student engineer for more than six years.

(f) The administrator may promulgate rules and regulations to effectuate the purposes of this chap ter.

 

Section 2A.  Unless otherwise required under section 6A of chapter 31 or any other general or special law to the contrary, t he administrator shall design and implement a program for performance evaluation of employees. The sole purpose of said progra m shall be the improvement of the performance of individual employees and the division and, notwithstanding any general or special law to the contrary, all information compiled by said program shall be confidential. Said division may consult with individu als and organizations and may contract for technical assistance for the purpose of said program to the extent it deems necessary.

 

Section 3.  The division is hereby authorized and empowered:

(a) to administer the design, construction, operation and maintenance of the roads and bridges of the commonwealth;

(b) enter into any contracts and agreements necessary or desirable to carry out its purposes;

(c) make, and from time to time revise, regulation s for the conduct of the business of the division, and all regulations otherwise required by law;

(d) collaborate with other agencies and authorities, in consultation with the chief executive officer,  as may be appropriate in fields related to transporta tion, development, public safety and security;

(e) prepare and submit to the chief executive officer an annual report containing in substance the description of the organization of the bureau, reviewing the work of the division, recommending legislation a nd other action by the chief executive officer, and containing such information relating to the state highway system as appropriate, including information required by the chief executive officer;

(f) submit such other reports as the chief executive officer requires;

(g) compile statistics relative to the public ways of counties, cities and towns, and make such investigations relative thereto as it considers expedient.

(h) be consulted by, and shall without charge advise, officers of counties, cities or to wns having the care of and authority over public ways as to their construction, maintenance, alteration or repair; but such advice shall not impair the legal duties and obligations of any county, city or town.

(i) prepare maps of the commonwealth on which shall be shown county, city and town boundaries, the public way s and the state highway system , with their names if practicable, and may sell such maps or other maps prepared by it from time to time in connection with the work under its charge relative to the state highway system at such prices and on such conditions as it may determine.

(j) collect, collate and make available, geoscience data of the commonwealth, for the purpose of aiding in the search for and evaluation of reserve sources of water, gas, materials suitable for road building and all other minerals within the land and water boundaries of the commonwealth, the location of which it shall, so far as practicable, designate on maps which shall be open to inspection by the public.

(k) give public notice of and hold at least one public meeting annually in each county for the open discussion of questions relative to the public ways.

(l) to maintain offices at such places within the commonwealth as it may determine and to conduct meetings of the divi sion in accordance with the by-laws of the authority and the division.

(m) to construct, maintain, repair, reconstruct, improve, rehabilitate, use, police, administer, control and operate the state highway system or any part thereof as it may determine; p rovided, however, that the provisions of chapter ninety-one shall not apply to the division, except for any parts or areas thereof subject to said chapter ninety-one on March first, nineteen hundred and ninety-seven;

(n) to acquire sites abutting the state highway system and to construct or contract for the construction of buildings and appurtenances for gasoline stations, restaurants, parking facilities, tourist information centers and other services and to lease such facilities in such manner and under su ch terms as it may determine;

(o) to adopt such rules and regulations pursuant to the provisions of chapter thirty A and not repugnant to the provisions of the General Laws made applicable to the authority, as the division determines necessary or appropria te to provide for or govern the construction or reconstruction, including contractor qualification, operation, maintenance, repair, rehabilitation, improvement, use, policing, control or administration of the state highway system or the division's business or property. Such regulations may include the division to grant easements, permits or other forms of authorization for the installation, construction, maintenance, repair, renewal, relocation and removal of tracks, pipes, pipelines, mains, conduits, cable s, wires, towers, poles and other equipment and appliances of any public utility, private entity or corporation or person owning or operating such facilities in, on, along, over or under the state highway system.

Such regulations may impose penalties for v iolations thereof which, in the case of civil penalties, may be recovered only after notice and hearing conducted by the division or its designee and subject to judicial review and enforcement pursuant to the provisions of said chapter thirty A or such oth er civil proceedings under the laws of the commonwealth or the United States as the law may provide and, in the case of criminal penalties, may be recovered in a proceeding in a trial court of the commonwealth by indictment or complaint. The amount of any such civil or criminal penalty, with the exception of penalties imposed under section nineteen, shall not exceed five hundred dollars for each offense, unless the law otherwise provides. The full amount of a civil penalty shall be paid to the authority and eighty percent of a penalty recovered in a criminal proceeding shall be accounted for and paid to the authority. The division may further provide in such regulations for adjudicatory proceedings that it or its designee conducts which are subject to judici al review and enforcement according to the provisions of said chapter thirty A;

              (p) to place and maintain or grant permission by easement or otherwise to any public utility, corporation or person to place and maintain on or under or within the state highw ay system or any part thereof, ducts, pipes, pipelines, mains, conduits, cables, wires, towers, poles or other structures to be so located as not to interfere with the safe and convenient operation and maintenance of the state highway system and to contrac t with any such public utility, corporation or person for such permission on such terms and conditions as may be fixed by the division. The construction, maintenance and repair of any such ducts, pipes, pipelines, mains, conduits, cable, wires, towers, pol es or other structures shall be subject to such directions and regulations as the division may impose.

Whenever the division shall determine that it is necessary that any such ducts, pipes, pipelines, mains, conduits, cable, wires, towers, poles or other s tructures which are now or hereafter may be located in, on, along, over or under the state highway system be relocated or removed, the public utility, corporation or person owning or operating such facilities shall relocate or remove the same in accordance with the order of the division. In case of any such relocation or removal of facilities, the public utility, corporation or person owning or operating the same, its successors or assigns may maintain and operate such facilities, with the necessary appurte nances, in the new location for as long a period and upon the same terms and conditions as it had the right to maintain and operate such facilities in their former location;

( q) to acquire in the name of the authority by purchase or otherwise, on such term s and conditions and in such manner as it may deem proper or by the exercise of the power of eminent domain in accordance with the provisions of chapter seventy-nine or any alternative method now or hereafter provided by law, such public lands and any fee simple absolute or lesser interest in such private property, or part thereof or rights therein as it may deem necessary for carrying out the provisions of this chapter;

(r) To designate the locations and establish, limit and control such points of ingress to and egress from the state highway system as may be necessary, convenient or desirable in the judgment of the authority to insure the proper operation and maintenance of the state highway system and to prohibit entrance to the state highway system from a ny point or points not so designated;

(s) to (i) construct grade separations at locations where the state highway system intersect with or abut public highways or rail lines and to change and adjust the lines and grades of such highways or rail lines so as to accommodate the same to the design of such grade separation; and (ii) change the location of any portion of any public highway or rail line which intersects or abuts the state highway system in order to improve the safety or efficiency of the state hig hway system; provided, however, that if the division shall find it necessary to change the location of a public highway, it shall reconstruct the same in as good a condition as the original highway and at such location as the division deems most favorable. All costs incident to construction, realignment or reconstruction conducted pursuant to this clause shall be borne by the authority;

(t) to enter upon any lands, waters and premises in the commonwealth , after 30 days notice by registered or certified mail and without the necessity of any judicial orders or other legal proceedings, for the purpose of making surveys, soundings, drillings and examinations as the division may deem necessary, convenient or desirable for carrying out the purposes of this chapter and such entry shall not be deemed a trespass nor shall an entry for such purposes be deemed an entry under any condemnation proceedings which may be then pending. The authority shall provide reimbursement for any actual damage resulting to such lands, wa ters and premises as a result of such activities. The commonwealth hereby consents to the use of all lands owned by it, including lands lying underwater, which are deemed by the authority to be necessary, convenient or desirable for the construction, opera tion or maintenance of the state highway system;

(u) to make and enter into all contracts and agreements necessary, convenient or desirable in the performance of its duties and the execution of its powers under this chapter including, but not limited to, c ontracts or agreements with state, local or regional public agencies and authorities which the division deems necessary, convenient, or desirable for the ownership, construction, operation, maintenance, repair, reconstruction, improvement, rehabilitation, use, control, administration or policing of the state highway system or any part thereof and agreements with the Federal Highway Administration with respect to compliance with the provisions of Titles 23 and 49 of the United States Code as they may apply t o the state highway system; provided, however, that sections twenty-six to twenty-nine, inclusive, and sections forty-four A to forty-four J, inclusive, of chapter one hundred and forty-nine and sections thirty-nine F to thirty-nine M, inclusive, of chapte r thirty shall apply to contracts of the division to the same extent and in the same manner as they are applicable to the commonwealth. Notwithstanding the provisions of this clause, the division may, with approval of the authority, without competitive bid s and notwithstanding the provisions of any general or special law to the contrary, award a contract, otherwise subject to this section, limited to the performance of emergency repairs necessary to preserve the safety of persons or property;

(v ) To accept gifts, grants and loans from agencies of local, state and federal governments, or from private agencies or persons, and to accede to such conditions and obligations as may be imposed as a prerequisite to any such gift, grant or loan; and

(w) to do all acts and things necessary, convenient or desirable to carry out the powers expressly granted in this chapter.

 

Section 4 .  Real property of the division other than property leased pursuant to sections 5 and 6 , if leased, used, or occupied in connection with a business conducted for profit, shall, at the discretion of the municipality for the privilege of such lease, use or occupancy, be valued, classified, assessed and taxed annually as of January first to the lessee, user or occupant in the same manner and to the extent as if such lessee, user or occupant were the owner thereof in fee. No tax assessed under this section shall be a lien upon the real estate to which it is assessed nor shall any tax be enforced by any sale or taking of such real estate but the in terest of any lessee therein may be sold or taken by the collector of the city or town in which the real estate lies for the nonpayment of such taxes in the manner provided by law for the sale or taking of real estate for nonpayment of annual taxes. Such c ollector shall have for the collection of taxes under this section all other remedies provided by chapter sixty for the collection of annual taxes upon real estate.

 

Section 5 .  In addition to any other power the division may have to make leases, the divis ion may lease at one time or from time to time for terms not to exceed ninety-nine years, upon such terms and conditions as the authority in its discretion deems advisable, air rights over land owned or held by the authority in connection with the state highway system , including rights for support, access, utilities, light and air, for such purposes as, in the opinion of the authority, shall not impair the construction, full use, safety, maintenance, repair, operation or revenues of the state highway syst em; provided, however, that any such lease for a period of forty years or more shall be subject to the approval of the governor. Any lease granted under this section may, with the consent of the authority, be assigned, pledged or mortgaged and the lien of such pledge or mortgage may be foreclosed by appropriate action. The proceeds from any such lease shall be paid into the treasury of the commonwealth for credit to the surface transportation trust fund.

Use of air rights leased under this section respectin g land within the territorial limits of the city of Boston and the construction and occupancy of buildings or other things erected or affixed pursuant to any such lease shall be made in accordance with the provisions of the state building code enacted purs uant to chapter one hundred and forty-three and such other requirements as the authority deems necessary or advisable to promote the public health, convenience and safety of persons and property but shall not be subject to any other building, fire, garage, health or zoning law or any building, fire, garage, health or zoning ordinance, rule or regulation applicable in the city of Boston.

The division shall not lease any air rights in a particular location unless it shall find that the construction and use o f buildings or other things to be erected or affixed pursuant to any such lease shall be in no way detrimental to the maintenance, use and operation of the state highway system and, in the city of Boston, unless the division shall also find, after consulta tion with the mayor that the construction and use of such buildings or other things shall preserve and increase the amenities of the community.

The construction or occupancy of any building or other thing erected or affixed under any lease under this sect ion of air rights respecting land outside the territorial limits of the city of Boston shall be subject to the building, fire, garage, health and zoning laws and the building, fire, garage, health and zoning ordinances, by-laws, rules and regulations appli cable in the city or town in which such building or other thing is located.

A copy of all leases granted by the division under this section shall be filed by the authority with the governor and with the mayor or chairperson of the board of selectmen of th e respective city or town and such leases shall be deemed to be public records within the meaning of chapter sixty-six.

Neither such air rights nor any buildings or other things erected or affixed pursuant to any such lease nor the proceeds from any such lease shall be taxed or assessed to the division under any general or special law; provided, however, that buildings and other things erected or affixed pursuant to any such lease shall be taxed to the lessee thereof or his assigns in the same manner and t o the same extent as if such lessee or his assigns were the owners of the land in fee; provided, further, that no part of the value of the land shall be included in any such assessment; and provided, further, that payment of any such taxes shall not be enf orced by a lien upon or sale or taking of such land except that the leasehold estate may be sold or taken by the collector of taxes of the city or town wherein such real estate is situated for the nonpayment of any tax assessed as aforesaid in the manner p rovided by law for the sale or taking of real estate for nonpayment of local taxes. Such collector shall have for the collection of taxes assessed under this section all other remedies provided by the General Laws for the collection of taxes by collectors of cities and towns.

The division shall include in any lease of such air rights a provision whereby the lessee agrees, in the event that the foregoing tax provision is determined by any court of competent jurisdiction to be inapplicable, to pay annually t o the city or town wherein such building or other thing leased is located, a sum of money in lieu of taxes which would otherwise be assessed for such year.

Each lease made pursuant to this section shall require that the lessee file with the division  a st atement under oath containing the names and addresses of the officers and directors, in the case of a corporation, and in the case of a partnership or other voluntary association, the name and address of all persons having a financial or beneficial interes t in said lease. The lessee shall within thirty days after any change in the said officers or directors, or of persons holding any such interest file a corrected statement under oath with the division.

No billboards shall be erected under the provis ions of this section.

Section 6 .  In addition to any other power the division may have to make leases, the division may lease at one time or from time to time for terms not to exceed ninety-nine years, upon such terms and conditions as the authority in it s discretion deems advisable, land owned by the division and no longer required for the maintenance, repair, reconstruction, improvement, use, administration or operation of the state highway system; provided, however, that any such lease for a period of f orty years or more shall be subject to the approval of the governor. A lease granted under this section may, with the consent of the authority, be assigned, pledged or mortgaged and the lien of such pledge or mortgage may be foreclosed by appropriate actio n.

The construction or occupancy of any building or other thing erected or affixed under any lease of land under this section shall be subject to the building, fire and zoning laws, ordinances or by-laws applicable in the city or town wherein such buildin g or other thing is located.

A copy of all leases granted by the division under the provisions of this section shall be filed by the authority with the governor and with the mayor or chairman of the board of selectmen of the respective city or town and su ch leases shall be deemed to be public records within the meaning of chapter sixty-six.

Neither such land nor any buildings or other things erected or affixed pursuant to any such lease nor the proceeds from any such lease shall be taxed or assessed to th e authority under any general or special law; provided, however, that such land and buildings and other things erected or affixed pursuant to any such lease shall be taxed to the lessee thereof or his assigns in the same manner and to the same extent as if such lessee or his assigns were the owners of the land in fee; provided, further, that payment of any such taxes shall not be enforced by a lien upon or sale or taking of such land except that the leasehold estate may be sold or taken by the collector of taxes of the city or town wherein such land is situated for the nonpayment of any tax assessed as aforesaid in the manner provided by law for the sale or taking of real estate for nonpayment of local taxes. Such collector shall have for the collection of t axes assessed under this section all other remedies provided by the General Laws for the collection of taxes by collectors of cities and towns.

The division shall include in any lease of such land a provision whereby the lessee agrees, in the event that t he foregoing tax provision is determined by any court of competent jurisdiction to be inapplicable, to pay annually to the city or town in which such leased land is located a sum of money in lieu of taxes which would otherwise be assessed for such year.

 

Section 7 .  County commissioners and city and town officers who have the care of and authority over public ways shall, on request, furnish the division with any information required by it concerning such ways.

 

Sec tion 8 .  Steam road rollers and other road machinery, purchased by the division and owned by the authority shall be managed and maintained under the direction of the division, which may engage competent engineers and mechanics to operate and keep said machines in repair, may purchase all needed ma terials and supplies, and may incur such other expenses as may be necessary to operate, maintain and transport said machines. Upon the application of the selectmen or road commissioners of a town of not more than twelve thousand inhabitants, the division m ay furnish such road machinery for use by the town in building or repairing ways therein. The expenses incurred under this section shall be paid by the towns using said machines, as apportioned and directed by the division. For the purpose of providing sui table quarters for the storage of supplies, the storage and repair of road rollers and other road machinery and tools and other equipment owned by the authority and for the construction, operation and maintenance of inter-departmental communications system s, the division may take by eminent domain or acquire by purchase or gift land and buildings and construct or alter buildings or other structures on any land so acquired. Any person whose property has been taken or injured by any action of the division und er authority of this section may recover compensation therefor from the authority under chapter seventy-nine.

Section 9 .  If county commissioners, aldermen or selectmen adjudge that public necessity and convenience require that the division lay out and tak e charge of a new or existing way as part of the state highway system in whole or in part, in their county, city or town, they may apply, by a written petition, to the division, requesting that said way be laid out and taken charge of by the division .

S ect ion 10 .  If the division determines, after public notice and a hearing of all parties interested, that public necessity and convenience require that a way should be laid out or be taken charge of by the authority, it shall file in the office of the county commissioners for the county where the way is situated a certified copy of a plan thereof and a certified copy of a certificate that it has laid out and taken charge of said way in accordance with said plan, and shall file in the office of the clerk of eac h town where the way is situated a copy of the plan showing the location of the portion lying therein and a copy of the certificate that it has laid out and taken charge of said highway in accordance with said plan, and thereafter said way shall be a state highway, and shall be constructed by the division at the expense of the authority; but any state highway so laid out and constructed may be abandoned or discontinued as provided in section eighteen. The width of a state highway shall be such as the divisi on deems necessary. If the width of a state highway be less than that of the way previously existing, that portion of the way which lies between the boundary or location lines of the state highway and the boundary lines of the way previously existing shall remain a public way unless the division determines that it should be abandoned, or the county commissioners of the county, or the city or town in which the way is situated, having jurisdiction of the way, abandon at any time said portion in the manner pro vided by law for the alteration, relocation or discontinuance of public ways.

Section 1 1 .  The division may alter the location of a state highway in a city or town by filing a plan thereof and a certificate that the division has laid out and taken charge of said state highway, as altered in accordance with said plan, in the office of the county commissioners for the county where said highway is situated, and by filing a copy of the plan or location as altered in the office of the clerk of such city or town .

Section 1 2 . If it is necessary to acquire land for the purposes of a state highway outside the limits of an existing public way, the division may take the same by eminent domain on behalf of the authority under chapter seventy-nine. When injury has bee n caused to the real estate of any person by the laying out or alteration of a state highway, he may recover compensation therefor from the authority under chapter seventy-nine. The mayor, if so authorized by the aldermen, or the selectmen, if so authorize d by the town, may stipulate in writing in behalf of the city or town to indemnify and save harmless the authority against all claims and demands for damages which may be sustained by any persons whose property has been taken for, or has been injured by th e laying out or alteration of, any highway which the division proposes to lay out and construct or alter as a state highway, and thereupon such city or town shall be liable ultimately for the amount of any verdict against the authority for such damages, an d for costs, and the amount thereof may be recovered by the authority in contract.

Section 1 3 .  In connection with the laying out, alteration or reconstruction of a state highway, the division may alter or relocate connecting ways as may be necessary. Land or rights in land may be acquired for this purpose by eminent domain under chapter seventy-nine by the division in behalf of the city or town in which the land lies, or in behalf of the authority, at the option of the division. The division may take o r acquire by eminent domain under said chapter, easements in land outside the location of limited access state highways, said easements to be taken in behalf of those owners of land abutting said highways, whose rights of access to and egress from their la nd, and any other rights necessary to make the same available for use, will become inoperative due to the construction of said highway. Control of the land or rights in the land acquired under this section shall not vest in the city or town until such time as the work for which the land or rights in land have been acquired has been completed by said division, except that the city or town shall be responsible for snow and ice control on such portions of the highway as may be opened to traffic prior to final completion or acceptance of the project. Any person whose property has been taken or injured by any action of said division under authority of this section may recover from the authority under chapter seventy-nine such damages therefor as he may be entitle d to.

 

Section 1 4 .  Wherever in this chapter the division is authorized to take land by eminent domain under chapter seventy-nine, in connection with the laying out, widening or relocating of a public way, the division shall be authorized to take, or ins titute proceedings for the taking of, an easement in land adjoining the location of the public way consisting of the right to have the land of the location protected by having the surface of the adjoining land slope from the boundary of the location.

 

Sec tion 1 5 .  If the division determines that public necessity and convenience require that a limited access way shall be laid out, it shall lay out such way in the same manner as state highways. A limited access way is hereby defined to be a highway over whi ch the easement of access in favor of abutting land exists only at such points and in such manner as is designated in the order of laying out. All the provisions of law in regard to the laying out, relocation, alteration or discontinuance of state highways and to damages therefor shall apply to limited access ways. If a limited access way is laid out in whole or in part in the location of an existing public way, the owners of land abutting upon such existing public way shall be entitled to recover damages u nder chapter seventy-nine for the taking of or injury to their easements of access to such public way. No highway, town way or private way shall be laid out by county commissioners, by the selectmen of a town or by the appropriate officer or board of a cit y which crosses, enters upon or unites with a limited access way, without the consent in writing of the division. In connection with the laying out or alteration of a limited access highway, the division may take in fee or otherwise, by purchase, gift, dev ise, or by eminent domain under chapter seventy-nine, land or rights in land adjoining the highway location whose right of access has been acquired and may provide for abutting motorist information service facilities and comfort stations.

The division is authorized to provide information services which may include indoor commercial and non-commercial advertising displays, directories, bulletin boards, wall maps, and the building wherein such services are provided shall be staffed with attendants for the co nvenience, necessity and safety of the traveling public on limited access highways. The building within which such information services are provided shall be operated, and maintained internally, by a person, firm, corporation, county, municipality or other state department or agency. In the event that an information center is to be operated and maintained by a person, firm, corporation, county, municipality or other state department or agency, the division, subject to rules, regulations and standards determ ined by the division and the department of economic development and with the approval of the Federal Highway Administration, is authorized to enter into a lease or memorandum of understanding for a term of years or on terms which the division deems appropr iate regarding the operation and maintenance of such information centers and the operation and maintenance of adjacent sanitary facilities.

All income due the division from leases authorized by this section shall be paid to the state treasurer and credite d to the surface transportation trust fund.

The office of travel and tourism shall be designated by the division as the agent to participate with the division in the selection of lessees and to oversee the operation of information centers and control adve rtising in accordance with lease agreements, subject to approval by the Federal Highway Administration.

 

Section 1 6 .  The division may grant easements within state highway locations for wires, pipes, poles, conduits and cattle passes.

 

Section 1 7 .  The division may sell at public or private sale any land, or rights in land, the title to which has been acquired by the division , upon determination by the board of directors of the Massachusetts surface transportation authority that such land or rights in l and are no longer necessary for the division’s purposes. In the event of such public or private sale the division shall execute a deed thereof, with or without covenants of title and warranty, in the name and behalf of the authority, to the purchaser, his heirs and assigns, and deposit said deed with the state treasurer, together with a certificate of the terms of the sale and the price paid or agreed to be paid at said sale. Upon receipt of said price, and upon the terms agreed to in said deed, the treasur er shall deliver the deed to said purchaser. The state treasurer may, by the attorney general, sue for and collect the price and otherwise enforce the terms of any such sale.

The division may, with the approval of the authority, transfer to another divisi on, or to a city, town, or public authority or agency, any land the title to which has been acquired by it and which said board of commissioners determines is no longer necessary for the division’s purposes.

The division may also, with the approval of the authority, lease or rent any land, or rights in land, the title to which has been acquired by it, and which land, or rights therein, said board of directors determines are not presently needed for the division’s purposes.

The foregoing provisions of law with reference to the sale, leasing or renting of land acquired by the division, shall also apply to land, or rights in land, acquired by the division for maintenance sites.

In addition to the foregoing, the division may also transfer to another state department, land acquired from said state department, which is no longer needed for the purposes for which it was acquired . Said land shall be subject to such restrictions as may be imposed by the division for the use thereof.

 

S ection 18 .  Whenever the division deems it necessary to make surveys, soundings, drillings or examinations to obtain information for or to expedite the construction of state highways or other projects und er its jurisdiction, the division, its authorized agents or employees may, after due notice by registered or certified mail, enter upon any lands, waters and premises, not including buildings, in the commonwealth for the purpose of making surveys, sounding s, drillings and examinations as they may deem necessary or convenient for the purposes of this act, and such entry shall not be deemed a trespass nor shall an entry for such purposes be deemed an entry under any condemnation proceedings which may be then pending. The division shall make reimbursement for any injury or actual damage resulting to such lands, waters and premises caused by any act of its authorized agents or employees and shall so far as possible restore such lands to the same condition as pri or to the making of such surveys, soundings, drillings or examinations.

 

Section 19 .   Whenever, in connection with the laying out, widening, relocating, constructing or altering of a public way by the division, land or an easement therein owned by a publ ic utility company is taken by the division by eminent domain under chapter seventy-nine, thereby necessitating the relocation of the facilities of such company, the division may acquire by purchase or otherwise or take by eminent domain under chapter seve nty-nine such land or easements therein as such company may designate for the relocation of such facilities, and convey the same to such company. Such conveyance shall be in lieu of any damages for the value of the land or easements therein of such company so taken by the division, not including, however, any damages for the cost of such relocation for which the authority may be liable.

 

Section 2 0 .  Notwithstanding any other provision of law, the division may, with the approval of the chief executive off icer of the authority, lease land adjacent to, over or under a state highway for use as a public parking facility; provided, however, (1) the term of any such lease shall not exceed five years (2) the provisions of section eight A of chapter twenty-nine re lative to notice of and proposals for any contract in excess of five thousand dollars for work under the supervision or control of the division shall apply to such leases (3) the lessee has filed with the division a statement under oath containing the name s and addresses of the officers and directors in the case of a corporation, or of the person or persons in the case of a partnership or other voluntary association, or of any other person or persons, having any financial or beneficial interest in said leas e (4) the lessee shall within thirty days after any change in the stockholders or persons holding any such interest file a statement thereof under oath with the division and (5) no such lease shall be renewed or extended except in accordance with the provi sions of this section applicable to a new lease.

Whoever wilfully violates any provision of this section shall be punished by a fine of not more than one thousand dollars.

Section 2 1 .  The division is hereby authorized to enter into agreements with rail road corporations, transit authorities or other public authorities or municipalities for the purpose of performing any work which may be necessary in connection with the construction of highways, roads, bridges and other public works undertaken by said div ision whenever such construction or work entails relocation, alteration or other work on the tracks, bridges, roads, pipes, sewers, conduits, wires, or other property of such railroad corporation, transit authority or other public authority or municipality and which may disrupt the free flow of public transportation. Whenever any such agreement provides that a railroad corporation, transit authority or other public authority, and municipality perform such construction or work for which the authority is obli gated to assume a part of the cost, the agreement may provide for the monthly advancement by the division to such railroad corporation transit authority or other public authority or municipality of funds covering the estimated cost of such construction or work then in progress.

Section 2 2 .  In any federally aided program, the division of roads and bridges, in this section referred to as the division, is hereby authorized and directed to do all things necessary to comply with the provisions of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (Public Law 91-646), as amended and supplemented, or with any other federal act relating to relocation assistance or acquisition, insofar as the federal government requires compliance with said Public Law 91-646 or said other federal acts in order to receive said federal aid. Under a federally aided program, in relation to any person whose real property is acquired, in whole or in part, by the division for a highway purpose, or any per son lawfully occupying real property acquired by the division for highway purposes, or any person who vacated real property at the written request of the division because of a proposed acquisition for highway purposes, the division is hereby authorized and directed to make such payments, provide such assistance and do such other things as are necessary for the division to comply with the Federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970. If a highway project is not fed erally aided, then in relation to any person whose real property is acquired, in whole or in part, by the division for highway purposes, or any person lawfully occupying real property acquired by the division for highway purposes, or any person who vacates real property at the written request of the division because of a proposed acquisition for highway purposes, the division shall make the same payments, provide the same assistance and do the same things as the division would be required to pay to, provide or do for such persons under a federally aided program. This section shall not affect the obligations of the division under chapter seventy-nine A.

 

Section 2 3 .   Whenever land or an easement therein is taken by the division by eminent domain for the purpose of relocating certain facilities of a public utility company, as authorized by section 19 , the said public utility company, its authorized agents or employees , after due notice by registered mail to the persons in possession of land so taken, may enter upon any such lands, waters and premises, not including buildings, as said company may deem necessary or convenient for the purpose of relocating its facilities, and such entry shall not be deemed a trespass, nor an entry under any condemnation proceedings which may then be pending.

 

S ection 24 .  Whenever a federal-aid highway program or project requires the use of any land which is part of a public park, recrea tion area or wildlife and waterfowl refuge of national, state or local significance as determined by the federal, state or local officials having jurisdiction thereof, or any land which is part of an historic site of national, state or local significance, as so determined by such officials, and there is no feasible and prudent alternative to the use of such land, the division, in order to minimize harm to such park, recreational area, wildlife and waterfowl refuge or historic site, may acquire by eminent do main under chapter seventy-nine, purchase or otherwise on behalf of the authority or on behalf of any division, department, public body, agency or instrumentality of the commonwealth or on behalf of any political subdivision thereof, land to replace that w hich was required for use in the highway program. The division shall convey such replacement land or transfer the custody, care and control of such replacement land to the owner of the public park, recreational area, wildlife and waterfowl refuge or histor ic site required for highway use, including private owners or any department, public body, agency of the commonwealth or to any political subdivision thereof and such conveyance or transfer may be partially or entirely in lieu of damages for the land acqui red from such owners; provided, however, that in the case of private owners such conveyance may be made only with the consent of such owner. The words “historic site” as used in this section shall include archeological sites as defined and regulated by sec tions twenty-six A to twenty-seven C of chapter nine.

 

S ection 25 .  The division, when about to construct a state highway, shall advertise in two or more newspapers published in each county in which the highway lies, and in three or more daily newspapers published in Boston, for sealed proposals for the construction of such highway, stating the time and place for opening such proposals, and reserving the right to reject any and all proposals. If a proposal is satisfactory, the division, with the approval o f the authority, shall make a contract in writing on behalf of the authority for such construction. After the proposals have been accepted or rejected they shall be kept by the division, and shall be open to public inspection for three years, and may then be destroyed by the division. The division may, in the same manner and under the same conditions, contract for the grading of a state highway or for furnishing labor, materials or any other element in its construction. The construction of all state highway s shall be under the supervision and subject to the approval of the division and in accordance with plans and specifications furnished by it, and shall be fairly apportioned by the division among the different counties.

 

Section 2 6 .  Every contract for en gineering survey services awarded by the division shall be awarded to the lowest responsible and eligible bidder on the basis of competitive sealed bids publicly opened and read forthwith upon expiration of the time for filing thereof; provided, however, t hat the division may reject any and all bids if it is in the public interest to do so.

For purposes of this section, the term “lowest responsible and eligible bidder” shall have the same meaning as is set forth in paragraph (c) of section thirty-nine M of chapter thirty.

 

Section 2 7 .  The mayor, selectmen or road commissioners or the board or officer having charge of the maintenance and care of highways, if so authorized by the city council or by the town, may agree in writing, in behalf of such city or t own, to contribute money, labor or materials toward the cost of any state highway which the division proposes to lay out and construct within such city or town.

 

Section 28 .  The division shall have the same power as aldermen, selectmen or road commission ers in relation to the purchase or taking of land to furnish materials for the construction, repair or improvement of public ways in the manner provided in section thirty-eight of chapter eighty-two; provided, that all contracts for such purchase and all t akings by the division shall first be approved by the authority. Such purchases or taking shall not operate in any way to interfere with the control of the police departments of the various municipalities within the land so taken. Land taken under this sec tion shall be held and used for no other purpose than as specified herein; provided, that the division may allow county, city or town officers to use materials from such land for the above specified purposes upon such terms as may be agreed upon. For this purpose the division may expend not more than five thousand dollars in any year. Any person sustaining injury or damage by any taking of land or rights in land under this section may recover compensation therefor from the authority under chapter seventy-ni ne.

 

S ection 29 .  The division, with the concurrence of the county commissioners, may discontinue as a state highway any way or section of way laid out and constructed under the provisions of section five by filing in the office of the county commissioners for the county and in the office of the clerk of the town in which such way is situated a certified copy of a plan showing the way so discontinued and a certificate that it has discontinued such way; and thereafter the way or section of way s o discontinued shall be a town way. Said division may also abandon any land or rights in land which may have been taken or acquired by it by filing in the office of the county commissioners for the county and in the office of the clerk of the town in which such land is situated a certified copy of a plan showing the land so abandoned and a certificate that it has abandoned such land, and by filing for record in the registry of deeds for the county or district in which the land lies a description and plan of the land so abandoned; and said abandonment shall revest the title to the land or rights abandoned in the persons in whom it was vested at the time of the taking, or their heirs and assigns.

 

Section 3 0 .  State highways shall be maintained and kept in go od repair and condition by the division at the expense of the authority. The division shall keep all state highways reasonably clear of brush and shall cause suitable shade trees to be planted thereon if practicable. As used in this chapter, the term “stat e highways” shall include such public roads in state forests, parks and reservations outside of the metropolitan parks district, and such public roads within the limits of any property under the control of any department, board or commission of the commonw ealth, as may from time to time be designated by the division as roads for general public use and approved for such use by the executive head of the department, board or commission controlling such property. The division shall, subject to appropriation, co nstruct, improve and maintain all roads on such property.

 

Section 3 1 .  The division may accept o n behalf of the authority from owners of lands included in a strip one hundred feet deep bordering on a state highway voluntary gifts by deed or will of ease ments in such lands, giving the authority the right to enter thereon at any time and in any manner for the purpose of landscaping such land by removing therefrom or rearranging thereon vegetable growths and surface minerals, by setting out and planting the reon vegetable growths, by depositing thereon minerals, by rearranging the contour of the land when deemed advisable, or by any or all of the foregoing methods. The division may improve lands in which such easements are granted, so as to carry out a compre hensive plan of highway beautification, artistic landscaping and scenic development, to the extent that appropriations are available therefor.

Such easements shall be accepted only on the condition that such lands shall remain fully subject to local taxat ion to the owners of the fee.

 

Section 3 2 .  The division may acquire by eminent domain under the provisions of chapter seventy-nine or by purchase or otherwise land and rights in land within or adjacent to federal-aid highways of the commonwealth for the purpose of restoring, preserving and enhancing scenic beauty, or, with the approval of the Massachusetts historical commission and subject to the availability of federal reimbursement, historic or archeological sites, and of providing publicly owned and c ontrolled rest and recreation areas and sanitary and other facilities to accommodate the traveling public. The division may improve such lands, and may expend for the purposes of this section such sums as may be appropriated therefor.

 

Section 3 3 .  The d ivision, if it can obtain consent of the owner, shall remove the trees, limbs of trees, shrubbery or any structure or other obstacle from lands bordering upon state highways, which in its opinion obstruct the view of persons traveling upon the highway or m ake traveling thereon dangerous. If the owner does not desire the material which has been so removed, the division may sell or otherwise dispose of it. The division shall cause all debris resulting from any cutting or trimming done along the state highway, under authority of this or of any other chapter, to be disposed of in such manner that it will not constitute a fire menace to adjoining property.

 

Section 3 4 .  The division may contract with the town in which a state highway lies or with a private pers on or may make other provision for the maintenance and repair thereof in accordance with the regulations of the division and subject to its supervision and approval. Such contracts may be made without previous advertisement.

Section 3 5 .  The authority sh all be liable for injuries sustained by persons while traveling on state highways, if the same are caused by defects within the limits of the constructed traveled roadway, in the manner and subject to the limitations, conditions and restrictions specified in sections fifteen , eighteen and nineteen of chapter eighty-four, except that the authority shall not be liable for injury sustained because of the want of a railing in or upon any state highway, or for injury sustained upon the sidewalk of a state highwa y or during the construction, reconstruction or repair of such highway. The amount which may be recovered for any such injury shall not exceed one fifth of one per cent of the valuation of the town in which the injury was received, nor shall it exceed four thousand dollars. Notice of the injury as required by law shall be given to a member of the division.

 

Section 3 6 .  A town shall have police jurisdiction over all state highways within its limits. It shall forthwith give written notice to the division or its employees of any defect or want of repair in such highways; but it may make necessary temporary repairs of a state highway without the approval of the division.

The division shall at the expense of the authority keep such state highways or parts ther eof as it may select sufficiently clear of snow and ice to be reasonably safe for travel; and the town in which any such state highway or part thereof lies shall forthwith give written notice to the division or its employees of any failure to keep such hig hway or part thereof clear of ice and snow as aforesaid.

 

Section 3 7.  The division shall from time to time construct sidewalks along such parts of the state highways as it determines public convenience and necessity require. Sidewalks may also be constru cted along state highways and maintained in accordance with sections twenty-five and twenty-six of chapter eighty-three.

 

Section 38 .  The division may illuminate, or cause to be illuminated, by means of highway lighting, traffic circles, traffic underpasses, traffic overpasses, traffic islands and other locations in the state highways wherever, in its opinion, such illumination is necess ary for the safety of the travelling public.

 

Section 39 .  No state highway shall be dug up, nor opening made therein for any purpose, nor access granted thereto for any purpose, nor shall any material be dumped or placed thereon or removed therefrom, and no tree shall be planted or removed or obstruction or structure placed thereon or removed therefrom or changed without the written permit of the division , and then only in accordance with its regulations, and the work shall be done under its supervision a nd to its satisfaction, and the entire expense of replacing and resurfacing the highway at the same level and in as good condition as before, with materials equal in specifications to those removed, shall be paid by the persons to whom the permit was given or by whom the work was done; but a town may dig up a state highway without the approval of the division in case of immediate necessity; but in such cases it shall forthwith be replaced in as good condition as before at the expense of the town and the tow n shall notify the division by registered mail, return receipt requested, within seven days of the excavation. In the case of a driveway opening on a state highway, the said division shall not grant a permit for a driveway location or alteration if the boa rd or division in a city or town having authority over public ways and highways has notified the division by registered mail, return receipt requested, of their objection to the driveway; provided, that such objection shall be based on highway safety and a ccepted by the said division. The division may require a bond to guarantee the faithful and satisfactory performance of the work and payment for any damage to state highways and facilities caused by or resulting from the operations authorized by such permi t. The amount of said bond shall be determined by the division not to exceed the estimated cost of the work and possible damage; provided, however, that the bond shall be not less than $300,000 unless a lesser amount is approved in writing by a representat ive of the division. Except in case of an emergency no permit for digging up or opening any state highway shall be approved or issued by the division until copies of the notices to public utility companies required by section forty of chapter eighty-two ha ve been filed with the division by the applicant for such permit.

Any person who builds or expands a business, residential, or other facility intending to utilize an existing access or a new access to a state highway so as to generate a substantial increas e in or impact on traffic shall be required to obtain a permit under this section prior to constructing or using such access. Said person may be required by the division to install and pay for, pursuant to a permit under this section, standard traffic cont rol devices, pavement markings, channelization, or other highway improvements to facilitate safe and efficient traffic flow, or such highway improvements may be installed by the division and up to one hundred per cent of the cost of such improvements may b e assessed upon such person.

The division may issue written orders to enforce the provisions of this section or the provisions of any permit, regulation, order, or approval issued under this section. Any person who violates any provision of this section or any permit, regulation, order or approval issued thereunder (a) shall be punished by a fine of not more than one thousand dollars per day for each such violation or (b) shall be subject to a civil penalty not to exceed one thousand dollars per day for eac h such violation; provided, however, that each day such violation occurs or continues shall be a separate offense. The superior court shall have jurisdiction, upon petition of the administrator of the division, to enforce the provisions of this section or of any permit, regulation, order, or approval issued thereunder.

The administrator of the division of roads and bridges shall adopt regulations to effectuate the purposes of this section.

Section 4 0 .  No length of possession, or occupancy of land within th e limits of a state highway by an owner or occupant of adjoining land shall give him any title thereto, and any fences, buildings or other objects encroaching upon a state highway shall, upon written notice by the division, be removed within fourteen days by the owner or occupant of adjoining land, and if not so removed, the division may either remove the same to such adjoining land or such encroaching objects, other than a building used for residential purposes, may be removed by the division forces and sh all be placed in the nearest maintenance area of the division. Notice by certified mail, return receipt requested shall be given to the owner stating where such encroaching object is located and further stating that if not claimed within three weeks said o bject may be destroyed.

Section 4 1 .  The division may expend construction funds of the authority in constructing or improving the whole or such part of said way as it deems best, either upon the location of the existing way or upon any new location that m ay be established by the county commissioners or the selectmen, and no part of the way so improved shall thereby become a state highway or be maintained as such. The division may, however, lay out the whole or any part of any such way as a state highway

 

S ection 4 2 .  When any public way has been constructed or improved in whole, or in part, with money furnished by the authority, and the way is not laid out as a state highway, the town in which the way lies shall thereafter keep and maintain in good repair and condition that part of the way which has been so constructed or improved; and the expense thereof shall be borne by the town or county, or both, as may be agreed upon at the time such construction or improvement is undertaken, except as otherwise provi ded in section 43 of this chapter and in paragraph 2(a) of section thirty-four of chapter ninety. If the division shall determine at any time that such way is not being maintained in proper condition, it shall so notify the mayor or selectmen having charge of the repairs of said way and the county commissioners, and shall specify in said notice what repairs and improvements are necessary; and the officials in charge of the way shall forthwith proceed to make the specified repairs and improvements. If said o fficials do not make such repairs or improvements within fifteen days from the receipt of such notice, or within such further time as the division may allow, the division may proceed to have the repairs or improvements made, and may pay for the same from a ny money which may be available for the repair and maintenance of state highways. The division shall annually, in January, certify to the state treasurer the amount of such expenditures during the preceding year. So much of the expenditures as by agreement are to be paid by the towns shall be made a part of the state tax for such towns; and so much of the expenditures as by agreement are to be paid by the counties shall be paid by the county treasurers to the state treasurer. The division may embody the pro visions of this section in all contracts and agreements for work to be done in the construction or improvement of public ways, other than state highways, constructed or improved in whole, or in part, with money furnished by the authority.

 

Section 4 3 .  T here may be expended for the repair and improvement of public ways, other than state highways, in towns having valuations of less than five million dollars, as established by the valuations made for the purpose of apportioning the state tax as appearing in chapter five hundred and fifty-nine of the acts of nineteen hundred and forty-five and in which the proportionate amount paid by such towns of every million dollars of such tax as established and apportioned in said chapter five hundred and fifty-nine, di vided by the number of miles of such public ways, hereinafter known as the road mileage ratio, is less than twelve dollars, such sums not exceeding two hundred and fifty dollars per mile as the general court may appropriate therefor; provided, that such to wns shall contribute or make available for use in connection therewith the following amounts for each mile of public ways within their respective limits, according to the following schedule based on their road mileage ratio:—

1. Less than one dollar and f orty cents, fifteen dollars.

2. One dollar and forty cents and less than two dollars, twenty-five dollars.

3. Two dollars and less than two dollars and eighty cents, forty dollars.

4. Two dollars and eighty cents and less than three dollars and fifty ce nts, fifty dollars.

5. Three dollars and fifty cents and less than five dollars and fifty cents, seventy-five dollars.

6. Five dollars and fifty cents and less than seven dollars, one hundred dollars.

7. Seven dollars and less than nine dollars, one hun dred and twenty-five dollars.

8. Nine dollars and less than twelve dollars, one hundred and fifty dollars.

The amounts appropriated as aforesaid and contributed by the towns shall be expended under the direction of the division of roads and bridges on su ch ways as said division and the selectmen of the towns may agree upon.

The division shall withhold or withdraw the unexpended balance of any funds assigned by it under this section or section twenty-five if the town fails to comply with the official stan dards for traffic control established by the division or with any provision of a traffic control agreement negotiated between the division and the town, as required by the United States Secretary of Commerce under section 109 of Title 23 of the United Stat es Code.

The cost of snow removal upon such ways in any such town, including amounts paid as rental for trucks and other equipment, and, at hourly rates approved by the division of roads and bridges, charges for the use of trucks and other equipment owned by such town, and the cost of sanding such ways in any such town may be paid from the amounts so appropriated and contributed, at the rate of not more than seventy-five dollars per mile.

 

Section 4 4 .  The county commissioners of the county wherein any p ublic way is to be repaired or improved under the provisions of the preceding section may contribute and expend county funds therefor in accordance with such agreements as the commissioners may make with the division and the selectmen of the town. Said cou nty funds may be paid to the department or to the town from time to time as the work progresses, to the extent that the said commissioners are satisfied that the work for which agreements have been made is being done in accordance therewith. Such contribut ions or expenditures by a county shall not render it liable for defects in any way or for damages to persons traveling thereon, and when the work of repair or maintenance for which such contribution or expenditure is made is completed, there shall be no fu rther obligation on the part of the county as to the repair and maintenance thereof until a further contribution is made by the county commissioners for such purpose.

 

Section 4 5 .  Expenditure of state funds under section twenty-six shall be made only upon the written petition of the selectmen, containing such information as the division may require.

 

Section 4 6 .  The said towns may contract with the division for the performance of the work authorized by section 43 ; or, if the selectmen so request, the division may have the work done by such persons and in such manner as it may determine, in which event the towns shall pay their proportionate part of the expense when and as ordered by the division. The cost of any materials, machinery or tools purchased by the division for or on account of the work in any town shall be considered as a part of the expenditures in such town under section twenty-eight; and such machinery or tools shall belong to the authority.

 

S ection 47 .  The division shall determine, ad nearly as possible, the number of miles of such public ways in towns entitled to the benefits under section 43 , and shall inform the selectmen of such towns of the contributions requ ired from them under said section.

 

Section 48 .  The division may lay out or alter ways other than state highways in any county, city or town provided that the county commissioner of the county, or the mayor of the city or the board of selectmen of the t own consents thereto. Land or rights in land may be acquired for this purpose by eminent domain under chapter seventy-nine by the division in behalf of the county, city or town in which the land lies. Any person whose property has been taken or injured by any action of said division under authority of this section may recover from the authority under chapter seventy-nine such damages therefor as he may be entitled to. For this purpose the division may use any funds which may be available for highway purpose s, including federal aid, and may also use any money appropriated for a county, or by a city or town, toward the damages sustained, provided that the county commissioners, selectmen or mayor have agreed in writing to pay the money thus appropriated upon th e order of the division.

 

S ection 49 .  The division may make all contracts and agreements and do all other things necessary to co-operate with the United States in the construction and maintenance of highways, under an act of congress approved on July ele venth, nineteen hundred and sixteen, entitled “An Act to provide that the United States shall aid the states in the construction of rural post roads, and for other purposes”, as amended and supplemented, and submit such plans, estimates and programs for th e improvement of highways as will meet the requirements of the secretary of commerce under said act, and it may use therefor any funds which may be available for the construction and maintenance of state highways, and may make any agreements or contracts t hat may be required to secure federal aid in the construction of highways under the provisions of the act of congress aforesaid, and of all other acts in amendment thereof, or in addition thereto, and may, in such agreements or contracts, provide, among ot her things, for such labor preferences to honorably discharged soldiers, sailors and marines as are made necessary by federal legislation, and may provide that no other preference or discrimination among citizens of the United States shall be made in conne ction with the expenditure of any money received from the federal government by virtue of the said legislation, and also any money received from the United States on account of the construction of highways. The division may also, for the purpose of securin g federal aid, use any money appropriated by a county, city or town for the construction of a way or any part thereof for which federal aid may be secured, and make contracts or agreements involving the expenditure of said money, provided the county commis sioners or the selectmen or duly authorized officials of the city or town have agreed in writing to pay the money thus appropriated upon the order of the division. The division may also maintain the roads constructed under this section or said act of congr ess, from any money appropriated by the general court for the maintenance of state highways or for the repair or maintenance of other public ways.

 

Section 5 0 .  The portion of the surface transportation trust fund allocated for reimbursements to cities a nd towns for costs actually incurred in constructing, maintaining and policing city or town streets or roads shall annually be apportioned among the several cities and towns as follows:

(a) The amount apportioned to each city and town in any calendar year shall be the amount of the “equalizing municipal highway grant” for such city or town multiplied by the number of miles of streets and roads in such city or town. The “equalizing municipal highway grant” for such city or town shall be the total of a basic mileage allowance of four hundred dollars plus an additional road-use allowance of seven dollars per motor vehicle per road mile less an equalizing deduction of ten cents per thousand dollars of equalized valuation per mile.

[There is no clause (b).]

Fo r the purposes of this section, the following words shall have the following meaning:—

(1) “Streets and roads in such city or town”, the total mileage, to the nearest one hundredth of a mile, of public ways, other than state highway, in such city or town, as determined by the most recent mileage survey conducted by the administrator of the division of roads and bridges; and said administrator is directed to conduct such survey annually.

(2) “Motor vehicles per road-mile”, the total number of motor vehicle s registered and garaged in such city or town, exclusive of re-issues, as determined annually by the registrar of motor vehicles, divided by the total mileage, to the nearest one hundredth of a mile, of public ways, other than state highway, in such city o r town, as determined by the most recent mileage survey conducted by the administrator of the division of roads and bridges.

(3) “Equalized valuation per mile”, the equalized valuation of the aggregate property in such city or town subject to local taxati on, as most recently reported by the commissioner of revenue to the General Court under the provisions of section ten C of chapter fifty-eight, divided by the total mileage, to the nearest one hundredth of a mile, or public ways, other than state highway, in such city or town.

The administrator of the division of roads and bridges shall annually notify the commissioner of revenue of the amounts apportioned to each city or town under this section; provided, however, that the sum payable to each city or town shall be used solely to reimburse such city or town for the costs actually incurred during the fiscal year of such city or town in constructing, maintaining and policing city or town streets or roads and shall not exceed the amount so incurred by such cit y or town.

The mayor of each city and the selectmen of each town shall notify the administrator of the division of roads and bridges in writing of the amount that will be incurred during the fiscal year of such city or town for constructing, maintaining a nd policing city or town streets or roads. The administrator of the division of roads and bridges shall annually, on or before December first, certify to the commissioner of revenue the amounts approved for payment to each city or town under this section i n each fiscal year.

 

Section 5 1 .  For the purposes of reimbursing cities and towns for the costs actually incurred in constructing, maintaining and policing city or town streets or roads as provided in section 50 the following words shall have the followi ng meanings:—

(a) “Constructing”, all operations on the travelled way on new location or where considerable reconstruction is to be undertaken, including resurfacing and other work incidental to the above, such as shoulders, side road approaches, roadside s, drainage, structures, sidewalks, traffic control and service facilities, intersection construction, and unusual or disaster operations and professional services, or for such other purposes that the commissioner of highways may specifically authorize.

(b) “Maintaining”, all operations on the travelled way including scarifying, reshaping, applying dust palliatives and restoring material losses; patching, mudjacking, joint filling, surface treating, etc. and replacement in kind; other work such as restora tion of erosion controls; reshaping drainage channels and side slopes; mowing; tree trimming; replacing topsoil, sod, shrubs, curbing, gutters, riprap, underdrains, culverts; cleaning and repairing culverts; cleaning; painting and repairing of structures; replacement of rail, floors, stringers and beams of structures; replacement of walls and the repairing of drawbridges; removal of snow and ice and related operations such as sanding, c