This week In the House presents part two of the Toll Roads Act, which looks at concession agreements, failure to pay toll, and the toll regulator. Part one was published last week.
CONCESSION AGREEMENTS
11.(1) In this part, "concession agreement" means an agreement mentioned in section 8(1)(b).
(2) References in this Act to a concession agreement are to the agreement as varied or supplemented from time to time.
12. A concession agreement may authorise a concessionaire to assign or delegate his rights under a toll order for a concession period, or any part thereof, subject to such terms and conditions as the concessionaire thinks fit or as may be specified in the agreement.
13. A toll order may authorise the concessionaire to exercise such functions in relation to the road subject to which the concession relates (in this section referred to as "toll road functions"), as may be specified in the order.
14.(1) A toll road function exercisable by the concessionaire may, with the consent of the Minister, be exercised by the Authority in accordance with the toll order--
(a) in an emergency as if it were not a toll road and for this purpose it may form part of an emergency plan;
(b) if it appears to the Authority that--
(i) its exercise is necessary or expedient in the interests of road safety; or
(ii) the concessionaire has failed or is unable properly to discharge the function in any respect, and the Authority shall not be liable for anything done or omitted by the concessionaire in the exercise or purported exercise of a toll road function.
(2) The Authority may recover from the concessionaire the costs incurred by it in exercising a toll road function in the circumstances mentioned in subsection (1), including an appropriate sum in respect of general staff costs and overheads and any other relevant administrative expenses of the Authority.
15.(1) A concessionaire may, in relation to the exercise of a toll road function, enter into arrangements with a specified organisation for the provision of any prescribed utility service on a toll road.
(2) Where the concessionaire fails to agree with a specified organisation on any issue concerning the provision of a prescribed utility service, the Minister may, on the request of either party, intervene in the public interest and, after hearing the parties, make a determination on the issue.
(3) A determination by the Minister under subsection (2) shall be binding upon the parties.
(4) For the purposes of this section, "specified organisation" and "prescribed utility service" have the meaning assigned respectively to them in section 2 of the Office of Utilities Regulation Act.
16.Every concessionaire shall-
(a) maintain the toll road to which his concession relates in good repair and condition and in accordance with sound engineering and operating practices; and
(b) comply with such design, construction, operating, maintenance and safety standards as may be prescribed by the Minister after consultation with the Authority.
17.(1) Subject to subsection l(3), the concessionaire may close part of a toll road to traffic in order to do work on the toll road for such time as is necessary to do the work but in all cases the concessionaire shall keep the toll road open to traffic travelling in both directions at all times.
(2) the concessionaire --
(a) may close a toll road on the occurrence of any incident on that road that endangers the life, health or safety of persons using the road; and
(b) shall as soon as practicable after such closure, notify the Authority thereof.
(3) Where the concessionaire plans to close the whole or part of a toll road for more than seventy-two hours, the concessionaire shall--
(a) give to the Authority at least thirty days written notice or written notice for such shorter period as may be agreed with the Authority; and
(b) not commence the closure without the approval of the Authority, after consultation with the Minister.
(4) Every person who uses any part of a toll road which is closed to traffic in accordance with this section does so at his own risk and the concessionaire shall not be liable for any injury, loss or damage sustained by that person.
(5) Where a toll road or part thereof is closed, the concessionaire shall notify the public of such closure by --
(a) placing signs in a conspicuous position on the road; and (b) the publication of a notice in a daily newspaper circulated in the Island.
18.(1) A concession agreement may provide, on termination of the agreement, for the transfer to the Authority of such property, rights and liabilities of the concessionaire as may be approved by the Minister.
(2) Where a concession agreement terminates or is before the end of the toll period, then, until appropriate arrangements are made by the concessionaire and any person and approved by the Minister, the Authority--
(a) shall take reasonable steps to secure the appointment of a new concessionaire; and
(b) may collect and retain tolls in the same way as the concessionaire, for a period of not more than two years until a new concessionaire is appointed, an extension toll order takes effect or the toll period ends.
(3) A concession agreement may contain provision as to the circumstances in which, and extent to which, any sum received by the Authority-
(a) in consideration for the appointment of a new concessionaire; or
(b) by way of tolls collected by virtue of subsection (2)(b), is to be applied for the benefit of the former concessionaire or his creditors, as the case may be.
19.(1) With the approval of the House of Representatives signified by resolution, the Minister responsible for finance may guarantee, in such manner and on such conditions as he thinks fit, the payment of any money resulting from the performance of any term or condition of a concession agreement which relates to a toll road entered into by any public body, with the prior approval in writing of the Government of Jamaica.
(2) Where the Minister responsible for finance is satisfied that there has been default in the repayment of any monies guaranteed under subsection (1), he shall direct the payment or, as the case may be, the repayment, out of the Consolidated Fund of the amount in respect of which there has been such default and any such repayment or payment shall be a charge on the Consolidated Fund.
(3) The public body concerned shall make to the Accountant-General, at such times and in such manner as the Minister responsible for finance may direct, payments of such amounts as may be so directed in or towards repayment of any sums issued in fulfilment of any guarantee under this section, and payments of interest on what is outstanding for the time being in respect of any sums so issued at such rate as the Minister may direct, and different rates of interest may be directed as respects different sums and as respects interest for different periods.
FAILURE TO PAY TOLL
20. If any person fails or refuses to pay toll in accordance with this Act or any regulations made thereunder, the amount of the toll, administrative fee relating thereto or any interest thereon shall be recoverable by the concessionaire as a civil debt.
21. (1) Toll shall be paid to the concessionaire--
(a) if a toll device is not attached to the vehicle, by the person in whose name the vehicle is licensed under the Road Traffic Act;
(b) if a toll device is attached to the vehicle, by the person to whom the toll device is registered.
(2) Photographic or electronic evidence of the use of a toll road shall be proof, in the absence of evidence to the contrary, of an obligation to pay a toll.
22. (1) A toll levied in respect of the use of a toll road is valid only if it is charged by the concessionaire in accordance with this Part.
(2) A person who levies any toll in contravention of subsection (1) shall not commit an offence by reason only of that contravention but any toll so charged shall not be recoverable by him and in so far as they have been paid to him, shall be recoverable from him.
TOLL REGULATOR
23. (1) The Minister may by order designate a person, group of persons or a public body to be the Toll Regualator.
(2) A concessionaire shall apply to the Toll Regulator for permission to levy toll.
(3) An application under subsection (2) shall-
(a) contain such particulars with respect to such matters as the Toll Regulator may specify in a notice published in the prescribed manner; and
(b) be accompanied by the prescribed fee.
(4) Any permission granted under this section in relation to any toll shall come into force on the date specified therein, and shall remain in force until it is revoked by the Toll Regulator.
(5) Before granting permission to levy and toll under this section, the Toll Regulator shall obtain the written approval of the Minister.
(6) Any permission granted under this section shall remain in force notwithstanding any change in the concessionaire.
INSPECTION
24. (1) The Authority may, from time to time, appoint as inspectors for the purposes of this Act, public officers or other persons who, by training and experience, are, in its opinion, qualified to be so appointed.
(2) The Authority shall issue each inspector with an identification card and the inspector shall, on entering any place for the purpose of carrying into effect any of the functions specified in section 25, produce the identification card to the concessionaire or other person in charge thereof.
(3) The appointment of any person as an inspector shall be published in the Gazette.
25. An inspector shall-
(a) inspect toll facilities in order to ensure compliance with the provisions of this Act or any regulations made thereunder;
(b) keep such records as may be specified by the Authority, in respect of toll facilities that are inspected;
(c) report to the Authority at such times and in such manner as the Authority may determine; and
(d) perform such other functions as may be prescribed or as may be authorised by the Authority for the purposes of this Act.
Next week In the House presents the final part of the Toll Roads Act which looks at offences and penalties.
