(1) The general assembly hereby finds and declares that:
The completion of designated bridge projects is essential to address increasing trafficcongestion and delays, hazards, injuries, and fatalities;
Due to the limited availability of state and federal funding and the need to accomplish the financing, repair, reconstruction, and replacement of designated bridges as promptly and efficiently as possible, it is necessary to create a statewide bridge enterprise and to authorize the enterprise to:
Enter into agreements with the commission or the department to finance, repair, reconstruct, and replace designated bridges in the state; and
Impose a bridge safety surcharge at rates reasonably calculated to defray the costs ofcompleting designated bridge projects and distribute the burden of defraying the costs in a manner based on the benefits received by persons paying the fees and using designated bridges, receive and expend revenues generated by the surcharge and other moneys, issue revenue bonds and other obligations, contract with the state, if required approvals are obtained, to receive one or more loans of moneys received by the state under the terms of one or more lease-purchase agreements authorized by this part 8, expend revenues generated by the surcharge to repay any such loan or loans received, and exercise other powers necessary and appropriate to carry out its purposes; and
(c) The creation of a statewide bridge enterprise is in the public interest and will promote the health, safety, and welfare of all Coloradans and visitors to the state by providing bridges that incorporate the benefits of advanced engineering design, experience, and safety.
(2) (a) (I) The statewide bridge enterprise is hereby created. The bridge enterprise shall be and shall operate as a government-owned business within the department. The commission shall serve as the bridge enterprise board and shall, with the consent of the executive director, appoint a bridge enterprise director who shall possess such qualifications as may be established by the commission and the state personnel board. The bridge enterprise director shall oversee the discharge of all responsibilities of the bridge enterprise and shall serve at the pleasure of the bridge enterprise board.
(II) The bridge enterprise and the bridge enterprise director shall exercise their powers and perform their duties as if the same were transferred to the department by a type 1 transfer, as defined in section 24-1-105, C.R.S.
(b) The business purpose of the bridge enterprise is to finance, repair, reconstruct, and replace any designated bridge in the state and, as agreed upon by the enterprise and the commission, or the department to the extent authorized by the commission, to maintain the bridges it finances, repairs, reconstructs, and replaces. To allow the bridge enterprise to accomplish this purpose and fully exercise its powers and duties through the bridge enterprise board, the bridge enterprise may:
Impose a bridge safety surcharge as authorized in paragraph (g) of subsection (5) ofthis section;
Issue revenue bonds payable from the revenues and other available moneys of thebridge enterprise pledged for their payment as authorized in section 43-4-807; and
Contract with any other governmental or nongovernmental source of funding forloans or grants, including, but not limited to, one or more loans from the state of moneys received by the state pursuant to the terms of one or more lease-purchase agreements authorized pursuant to paragraph (r) of subsection (5) of this section, to be used to support bridge enterprise functions.
(c) The bridge enterprise shall constitute an enterprise for purposes of section 20 of article X of the state constitution so long as it retains the authority to issue revenue bonds and receives less than ten percent of its total revenues in grants from all Colorado state and local governments combined. So long as it constitutes an enterprise pursuant to this paragraph (c), the bridge enterprise shall not be subject to any provisions of section 20 of article X of the state constitution. Consistent with the determination of the Colorado supreme court in Nicholl v. E470 Public Highway Authority, 896 P.2d 859 (Colo. 1995), that the power to impose taxes is inconsistent with "enterprise" status under section 20 of article X of the state constitution, the general assembly finds and declares that a bridge safety surcharge imposed by the bridge enterprise pursuant to paragraph (g) of subsection (5) of this section is not a tax but is instead a fee imposed by the bridge enterprise to defray the cost of completing designated bridge projects that the enterprise provides as a specific service to the persons upon whom the fee is imposed and at rates reasonably calculated based on the benefits received by such persons.
(3) (a) The statewide bridge enterprise special revenue fund, referred to in this part 8 as the "bridge special fund", is hereby created in the state treasury. All revenues received by the bridge enterprise, including, but not limited to, any revenues from a bridge safety surcharge collected pursuant to paragraph (g) of subsection (5) of this section and any moneys loaned to the enterprise by the state pursuant to paragraph (r) of subsection (5) of this section, shall be deposited into the bridge special fund. The bridge enterprise board may establish separate accounts within the bridge special fund as needed in connection with any specific designated bridge project. The bridge enterprise also may deposit or permit others to deposit other moneys into the bridge special fund, but in no event may revenues from any tax otherwise available for general purposes be deposited into the bridge special fund. The state treasurer, after consulting with the bridge enterprise board, shall invest any moneys in the bridge special fund, including any surplus or reserves, but excluding any proceeds from the sale of bonds or earnings on such proceeds invested pursuant to section 43-4-807 (2), that are not needed for immediate use. Such moneys may be invested in the types of investments authorized in sections 24-36-109, 24-36112, and 24-36-113, C.R.S.
All interest and income derived from the deposit and investment of moneys in thebridge special fund shall be credited to the bridge special fund and, if applicable, to the appropriate designated bridge project account. Moneys in the bridge special fund shall be continuously appropriated to the bridge enterprise for the purposes set forth in this part 8. All moneys deposited in the bridge special fund shall remain in the bridge special fund for the purposes set forth in this part 8, and no part of the bridge special fund shall be used for any other purpose.
The bridge enterprise may expend moneys in the bridge special fund to pay bond orloan obligations, to fund the administration, planning, financing, repair, reconstruction, replacement, or maintenance of designated bridges, and for the acquisition of land to the extent required in connection with any designated bridge project. The bridge enterprise may also expend moneys in the bridge special fund to pay its operating costs and expenses. The bridge enterprise board shall have exclusive authority to budget and approve the expenditure of moneys in the bridge special fund.
The commission may transfer moneys from the state highway fund created in section43-1-219 to the bridge enterprise for the purpose of defraying expenses incurred by the enterprise prior to the receipt of bond proceeds or revenues by the enterprise. The bridge enterprise may accept and expend any moneys so transferred, and, notwithstanding any state fiscal rule or generally accepted accounting principle that could otherwise be interpreted to require a contrary conclusion, such a transfer shall constitute a loan from the commission to the bridge enterprise and shall not be considered a grant for purposes of section 20 (2)(d) of article X of the state constitution. As the bridge enterprise receives sufficient revenues in excess of expenses, the enterprise shall reimburse the state highway fund for the principal amount of any loan from the state highway fund made by the commission plus interest at a rate set by the commission. Any moneys loaned from the state highway fund to the bridge enterprise pursuant to this section shall be deposited into a fund to be known as the statewide bridge enterprise operating fund, which fund is hereby created, and shall not be deposited into the bridge special fund. Moneys from the bridge special fund may, however, be used to reimburse the state highway fund for the amount of any loan from the state highway fund or any interest thereon.
In addition to any other powers and duties specified in this section, the bridge enterprise board has the following powers and duties:
To supervise and advise the bridge enterprise director;
To adopt bylaws for the regulation of its affairs and the conduct of its business;
To issue revenue bonds, payable solely from the bridge special fund, for the purposeof paying the cost of financing, repairing, reconstructing, replacing, and maintaining designated bridges;
To acquire, hold title to, and dispose of real and personal property as necessary in theexercise of its powers and performance of its duties;
To acquire, by purchase, gift, or grant, or, subject to the requirements of articles 1 to7 of title 38, C.R.S., by condemnation, any and all rights-of-way, lands, buildings, moneys, or grounds necessary or convenient for its authorized purposes;
To enter into agreements with the commission, or the department to the extent authorized by the commission, under which the bridge enterprise agrees to finance, repair, reconstruct, replace, and, if any given agreement so specifies, maintain designated bridges as specified in the agreements;
(I) As necessary for the achievement of its business purpose, to impose a bridgesafety surcharge, which, except as otherwise provided in subsections (5)(g)(III) and (5)(g)(VII) of this section, is imposed, on and after July 1, 2009, for any registration period that commences on or after July 1, 2009, or on and after such later date as may be determined by the bridge enterprise, for any registration period that commences on or after the later date, upon the registration of any vehicle for which a registration fee must be paid pursuant to the provisions of part 3 of article 3 of title 42. Except as otherwise provided in subsections (5)(g)(IV), (5)(g)(V), and (5)(g)(VI) of this section, the amount of the surcharge must not exceed:
Thirteen dollars for a motorcycle, as defined in section 42-1-102 (55), or any vehiclethat weighs two thousand pounds or less;
Eighteen dollars for any vehicle that weighs more than two thousand pounds but notmore than five thousand pounds;
Twenty-three dollars for any vehicle that weighs more than five thousand pounds butnot more than ten thousand pounds;
Twenty-nine dollars for any vehicle that is a passenger bus or that weighs more thanten thousand pounds but not more than sixteen thousand pounds; and
Thirty-two dollars for any vehicle that weighs more than sixteen thousand pounds.
The bridge safety surcharge shall be imposed when a vehicle is registered as required by article 3 of title 42, C.R.S. Each authorized agent shall remit to the department of revenue no less frequently than once a month, but otherwise at the time and in the manner required by the executive director of the department of revenue, all bridge safety surcharges collected by the authorized agent. The executive director of the department of revenue shall forward all bridge safety surcharges remitted by authorized agents plus any bridge safety surcharges collected directly by the department of revenue to the state treasurer, who shall credit the surcharges to the bridge special fund.
The bridge safety surcharge shall not be imposed on any rental vehicle on which adaily vehicle rental fee is imposed pursuant to section 43-4-804 (1)(b).
The amount of the bridge safety surcharge imposed on any vehicle that is an item ofClass A personal property, as defined in section 42-3-106 (2)(a), C.R.S., shall be the product of the amount of the surcharge imposed based on the weight of the vehicle pursuant to subparagraph (I) of this paragraph (g) and the percentage of the item's total apportioned registration apportioned to Colorado.
The maximum amount of the bridge safety surcharge that the bridge enterprise mayimpose pursuant to subparagraph (I) of this paragraph (g) for any annual vehicle registration period commencing during the 2009-10 fiscal year shall be one-half of the maximum amount of the surcharge specified in said subparagraph (I), and the maximum amount of the bridge safety surcharge that the bridge enterprise may impose pursuant to subparagraph (I) of this paragraph (g) for any vehicle registration period commencing during the 2010-11 fiscal year shall be seventy-five percent of the maximum amount of the surcharge specified in said subparagraph (I).
The amount of any bridge safety surcharge imposed pursuant to this paragraph (g) shall be one-half of the amount of the surcharge imposed pursuant to subparagraph (I) of this paragraph (g) for any vehicle that is a truck or truck tractor that is owned by a farmer or rancher and is used commercially only:
To transport to market or place of storage raw agricultural products actually produced or livestock actually raised by the farmer or rancher in farming or ranching operations; or
To transport commodities or livestock purchased by the farmer or rancher for personal use in the farmer's or rancher's farming or ranching operations.
The bridge safety surcharge is not imposed on any vehicle for which the department of revenue has issued a horseless carriage special license plate pursuant to section 42-12-301, C.R.S.
Each vehicle registration fee invoice shall list the bridge safety surcharge separately from all other vehicle registration fees or surcharges imposed.
(h) To make and enter into contracts or agreements with a private entity, to facilitate a public-private initiative pursuant to sections 43-1-1203 and 43-1-1204, including, but not limited to:
An agreement pursuant to which the bridge enterprise or the enterprise on behalf ofthe department operates, maintains, or provides services or property in connection with a designated bridge project; and
An agreement pursuant to which a private entity designs, develops, constructs, reconstructs, repairs, operates, or maintains all or any portion of a designated bridge project on behalf of the bridge enterprise;
To make and to enter into all other contracts or agreements, including, but not limitedto, design-build contracts, as defined in section 43-1-1402 (3), and intergovernmental agreements pursuant to section 29-1-203, C.R.S., that are necessary or incidental to the exercise of its powers and performance of its duties;
To employ or contract for the services of consulting engineers or other experts as arenecessary in its judgment to carry out its powers and duties;
To prepare, or cause to be prepared, detailed plans, specifications, or estimates forany designated bridge project within the state;
In connection with any designated bridge project, to acquire, finance, repair, reconstruct, replace, operate, and maintain any designated bridge within the state;
To set and adopt, on an annual basis, a budget for the bridge enterprise;
To purchase, trade, exchange, acquire, buy, sell, lease, lease with an option to purchase, dispose of, or encumber real or personal property or any interest therein, including easements and rights-of-way, without restriction or limitation;
To enter into interest rate exchange agreements for bonds that have been issued inaccordance with article 59.3 of title 11, C.R.S.;
Pursuant to section 24-1-107.5, C.R.S., to establish, create, and approve nonprofitentities and bonds issued by or on behalf of such nonprofit entities for the purpose of completing a designated bridge project, to accept the assets of any such nonprofit entity, to obtain an option to acquire the assets of any such nonprofit entity by paying its bonds, to appoint or approve the appointment of members of the governing board of any such nonprofit entity, and to remove the members of the governing board of any such nonprofit entity for cause;
To transfer money, property, or other assets of the bridge enterprise to the department to the extent necessary to implement the financing of any designated bridge project or for any other purpose authorized in this part 8;
(I) To contract with the state to borrow moneys under the terms of one or more loancontracts entered into by the state and the bridge enterprise pursuant to subparagraph (III) of this paragraph (r), to expend any moneys borrowed from the state for the purpose of completing designated bridge projects and for any other authorized purpose that constitutes the construction, supervision, and maintenance of the public highways of this state for purposes of section 18 of article X of the state constitution, and to use revenues generated by any bridge safety surcharge imposed pursuant to paragraph (g) of this subsection (5) and any other legally available moneys of the bridge enterprise to repay the moneys borrowed and any other amounts payable under the terms of the loan contract.
If the bridge enterprise board seeks to enter into a contract to borrow moneys fromthe state as authorized by subparagraph (I) of this paragraph (r), the board shall provide the governor with a list of designated bridge projects to be financed with the borrowed moneys and a statement of both the total amount of the loan requested and the estimated amount of the loan that will be used to fund each project on the list. If the governor determines, in the governor's sole discretion, that lending moneys to the bridge enterprise as requested by the enterprise, or lending a lesser amount of moneys to the enterprise, is in the best interest of the state, the governor, after consultation with the executive director of the department of personnel and the state treasurer, shall prepare and provide to the state treasurer a list of state buildings or other state capital facilities that the state, acting by and through the state treasurer, may sell or lease and lease back pursuant to the terms of one or more lease-purchase agreements that the state, acting by and through the state treasurer, may enter into pursuant to subparagraph (III) of this paragraph (r). When providing the list, the governor shall also specify to the state treasurer the maximum permitted principal amount of any loan that may be made to the bridge enterprise under the terms of any loan contract that the state, acting by and through the state treasurer, may enter into pursuant to sub-subparagraph (A) of subparagraph (III) of this paragraph (r).
(A) If the state treasurer receives a list from the governor pursuant to subparagraph(II) of this paragraph (r), the state, acting by and through the state treasurer, may enter into a loan contract with the bridge enterprise and may raise the money needed to make a loan pursuant to the terms of the loan contract by selling or leasing one or more of the state buildings or other state capital facilities on the list. The state treasurer shall have sole discretion to enter into a loan contract on behalf of the state and to determine the amount of a loan; except that the principal amount of a loan shall not exceed the maximum amount specified by the governor pursuant to subparagraph (II) of this paragraph (r). The state treasurer shall also have sole discretion to determine the timing of the entry of the state into any loan contract or the sale or lease of one or more state buildings or other state capital facilities. The loan contract shall require the bridge enterprise to pledge to the state all or a portion of the revenues of any bridge safety surcharge imposed pursuant to paragraph (g) of this subsection (5) for the repayment of the loan and may also require the enterprise to pledge to the state any other legally available revenues of the enterprise. Any loan contract entered into by the state, acting by and through the state treasurer, and the bridge enterprise pursuant to this sub-subparagraph (A) and any pledge of revenues by the enterprise pursuant to such a loan contract shall be only for the benefit of, and enforceable only by, the state and the enterprise. Specifically, but without limiting the generality of said limitation, no such loan contract or pledge shall be for the benefit of, or enforceable by, a lessor under a lease-purchase agreement entered into pursuant to this subparagraph (III), an owner of any instrument evidencing rights to receive rentals or other payments made and to be made under such a lease-purchase agreement as authorized by sub-subparagraph (B) of subparagraph (IV) of this paragraph (r), a party to any ancillary agreement or instrument entered into pursuant to subparagraph (V) of this paragraph (r), or a party to any interest rate exchange agreement entered into pursuant to sub-subparagraph (A) of subparagraph (VII) of this paragraph (r).
The state, acting by and through the state treasurer, may enter into one or morelease-purchase agreements with respect to the state buildings or other capital facilities sold or leased pursuant to sub-subparagraph (A) of this subparagraph (III) with any for-profit or nonprofit corporation, trust, or commercial bank acting as a trustee, as the lessor.
Any lease-purchase agreement authorized pursuant to sub-subparagraph (B) of thissubparagraph (III) shall provide that all of the obligations of the state under the agreement shall be subject to the action of the general assembly in annually making moneys available for all payments thereunder.
Any lease-purchase agreement authorized pursuant to sub-subparagraph (B) of thissubparagraph (III) shall also provide that the obligations of the state under the agreement shall not be deemed or construed as creating an indebtedness of the state within the meaning of any provision of the state constitution or the laws of this state concerning or limiting the creation of indebtedness by the state, and shall not constitute a multiple-fiscal year direct or indirect debt or other financial obligation of the state within the meaning of section 20 (4)(a) of article X of the state constitution. If the state does not renew a lease-purchase agreement authorized pursuant to sub-subparagraph (B) of this subparagraph (III), the sole security available to the lessor shall be the property that is the subject of the nonrenewed lease-purchase agreement.
(IV) (A) Any lease-purchase agreement authorized pursuant to sub-subparagraph (B) of subparagraph (III) of this paragraph (r) may contain such terms, provisions, and conditions as the state treasurer, acting on behalf of the state, may deem appropriate, including all optional terms; except that each lease-purchase agreement shall specifically authorize the state to receive fee title to all real and personal property that is the subject of the lease-purchase agreement on or prior to the expiration of the terms of the lease-purchase agreement upon payment of all amounts payable under the terms of the lease-purchase agreement and any amount required to be paid to remove liens or encumbrances on or claims with respect to the property that is the subject of the lease-purchase agreement, including, but not limited to, liens, encumbrances, or claims relating to any ancillary agreement or instrument entered into pursuant to sub-subparagraph (A) of subparagraph (VII) of this paragraph (r). Any title to such property received by the state on or prior to the expiration of the terms of the lease-purchase agreement shall be held for the benefit and use of the state.
Any lease-purchase agreement authorized pursuant to sub-subparagraph (B) of subparagraph (III) of this paragraph (r) may provide for the issuance, distribution, and sale of instruments evidencing rights to receive rentals and other payments made and to be made under the lease-purchase agreement. The instruments may be issued, distributed, or sold only by the lessor or any person designated by the lessor and not by the state. The instruments shall not create a relationship between the purchasers of the instruments and the state or create any obligation on the part of the state to the purchasers. The instruments shall not be notes, bonds, or any other evidence of indebtedness of the state within the meaning of any provision of the state constitution or the law of the state concerning or limiting the creation of indebtedness of the state and shall not constitute a multiple-fiscal year direct or indirect debt or other financial obligation of the state within the meaning of section 20 (4)(a) of article X of the state constitution.
Interest paid under a lease-purchase agreement authorized pursuant to subsubparagraph (B) of subparagraph (III) of this paragraph (r), including interest represented by the instruments, shall be exempt from state income tax.
The state, acting by and through the state treasurer, may enter into ancillary agreements and instruments deemed necessary or appropriate in connection with a leasepurchase agreement authorized pursuant to sub-subparagraph (B) of subparagraph (III) of this paragraph (r), including but not limited to deeds, leases, sub-leases, easements, or other instruments relating to the real property on which the facilities are located or an agreement entered into pursuant to subparagraph (VII) of this paragraph (r).
The provisions of section 24-30-202 (5)(b), C.R.S., shall not apply to a leasepurchase agreement authorized pursuant to sub-subparagraph (B) of subparagraph (III) of this paragraph (r) or any ancillary agreement or instrument or interest rate exchange agreement entered into pursuant to subparagraph (V) or sub-subparagraph (A) of subparagraph (VII) of this paragraph (r). Any provision of the fiscal rules promulgated pursuant to section 24-30-202 (1) and (13), C.R.S., that the state controller deems to be incompatible or inapplicable with respect to such a lease-purchase agreement, ancillary agreement or instrument, or interest rate exchange agreement may be waived by the controller or his or her designee.
(A) Prior to executing a lease-purchase agreement pursuant to sub-subparagraph(B) of subparagraph (III) of this paragraph (r), in order to protect against future interest rate increases, the lessor under any lease-purchase agreement or the state, acting by and through the state treasurer and at the discretion of the state treasurer, may enter into an interest rate exchange agreement in accordance with article 59.3 of title 11, C.R.S. A lease-purchase agreement entered into pursuant to sub-subparagraph (B) of subparagraph (III) of this paragraph (r) shall be a proposed public security for the purposes of article 59.3 of title 11, C.R.S.
Any agreement entered into pursuant to this subparagraph (VII) shall also providethat the obligations of the state shall not be deemed or construed as creating an indebtedness of the state within the meaning of any provision of the state constitution or the laws of this state concerning or limiting the creation of indebtedness by the state and shall not constitute a multiple-fiscal year direct or indirect debt or other financial obligation of the state within the meaning of section 20 (4)(a) of article X of the state constitution.
Any moneys received by the state under an agreement entered into pursuant to thissubparagraph (VII) shall be used to make payments on lease-purchase agreements entered into pursuant to sub-subparagraph (A) of subparagraph (III) of this paragraph (r).
(s) To have and exercise all rights and powers necessary or incidental to or implied from the specific powers and duties granted in this section.
(6) Repealed.
Source: L. 2009: Entire part R&RE, (SB 09-108), ch. 5, p. 20, § 1, effective March 2. L. 2011: (5)(g)(VII) amended, (SB 11-031), ch. 86, p. 249, § 21, effective August 10. L. 2017: (6) repealed, (SB 17-231), ch. 174, p. 634, § 5, effective August 9. L. 2020: IP(5)(g)(I) and (5)(g)(I)(A) amended, (SB 20-136), ch. 70, p. 286, § 19, effective September 14.
Editor's note: This section is similar to former §§ 43-4-803, 43-4-804, 43-4-805, and 434-806 as they existed prior to 2009, and the former § 43-4-805 was also relocated to § 43-4-806.
Cross references: For the legislative declaration in SB 20-136, see section 1 of chapter 70, Session Laws of Colorado 2020.