(No ) (Approved August 7, 2013) AN ACT

Transcription

1 (H. B. 5) (No ) (Approved August 7, 2013) AN ACT To create an Act to Transfer the Tertiary Roads of the Department of Transportation and Public Works of Puerto Rico to the Municipalities; and establish certain parameters and processes to regulate said transfers; and for other purposes. STATEMENT OF MOTIVES For several decades, the Commonwealth of Puerto Rico has had to face an increasing demand for services by its citizens. Therefore, countless agencies have been created for the purpose of addressing a citizen specific area of need. At present, despite the many initiatives undertaken by the different administrations in order for the Government to be more responsive to the needs of its people, the people feel that the latter has become an entity foreign to their needs, highly bureaucratic, and slow. In view of said perception, it is essential to continue developing initiatives to decentralize service rendering areas from the Government to the municipalities. Due to their sociopolitical structures, municipal governments have greater knowledge of the needs of their people, and have proven to be able to render certain government services promptly and efficiently. The aforesaid was broadly recognized upon the approval of Act No , as amended, better known as the Autonomous Municipalities Act. Although said statute provides and promotes that certain fields of action be eventually extended to the municipalities, the truth is that for several years different legislative measure have been approved that have impaired municipal autonomy.

2 2 However, during the period comprised between 2004 and 2008, the issue of municipal autonomy was again revisited, and legislation that placed such autonomy at another development level was introduced, programs to decentralize certain services were implemented, thus reaffirming municipal autonomy. Today, it is imperative that we use the municipalities to leave behind traditional centralistic doctrines. Therefore, as a continuation of the efforts and initiatives to decentralize the government apparatus through the municipalities, this measure is directed to recognize what has been proven in practice to be an effective decentralizing initiative regarding the maintenance of the roads of the Island. Regarding this issue, the claim made by municipalities to be allowed to take part in the rendering of services for the maintenance of tertiary roads was addressed during the government administration. For such purpose, a demonstrative project was carried out in the municipal governments whereby the Department of Transportation and Public Works of the Commonwealth of Puerto Rico entered into agreements with most municipalities so that the latter would provide maintenance to tertiary roads. The funds for said works were also transferred. The results of this project were favorable and maintenance services to tertiary roads were provided in a much more cost-effective and less bureaucratic manner. Thus, this measure is a step, among many others, that must be unquestionably taken at a time when ways to make the Government more agile and cost-effective are broadly discussed. BE IT ENACTED BY THE LEGISLATIVE ASSEMBLY OF PUERTO RICO: Section 1.- Title This Act shall be known as an Act to Transfer the Tertiary Roads of the Department of Transportation and Public Works of Puerto Rico to the Municipalities.

3 3 Section 2.- Definitions: For purposes of this Act, the words and phrases listed herein below shall have the meaning herein stated, unless another meaning clearly arises from the text: (a) Mayor - The Chief Executive of the Municipal Government. (b) Appropriation - Any sum of public funds authorized by the Legislative Assembly, the Commonwealth of Puerto Rico, or the Government of the United States of America to carry out a specific activity or achieve certain objectives with a public purpose. (c) Road - Any public state road for vehicular traffic that has been built pursuant to any law of the Commonwealth of Puerto Rico, or that having been built by an agency or public corporation, whether State or Federal, or by a municipality, has been lawfully transferred to the Department of Transportation and Public Works for custody and conservation thereof. (d) Tertiary Road - Intra-municipal road that connects two wards or connects one municipality with another, other than the main road, and that has been designated as a tertiary road by the Department of Transportation and Public Works of the Commonwealth of Puerto Rico upon assessing the use thereof. (e) Department - The Department of Transportation and Public Works of the Commonwealth of Puerto Rico. (f) Legislature - The body with legislative functions regarding municipal affairs, duly constituted, and officially denominated as Municipal Legislature. (g) Municipality - Geographic demarcation with all its wards that has a specific name and that is governed by the local government constituted by a Legislative Power and an Executive Power.

4 4 (h) Ordinance - All legislation of the municipal jurisdiction, duly approved, whose subject matter is of a general or specific nature, and that has indefinite effectiveness. It includes the affirmative statement of the Municipal Legislature accepting the transfer directed and provided herein. (i) Municipal or Public Property - Refers to tertiary roads acquired by the municipality by virtue of transfer of ownership by the Department, as authorized and directed under this Act. (j) Secretary - The Secretary of the Department of Transportation and Public Works of the Commonwealth of Puerto Rico. Section 3.- The Secretary is hereby empowered and directed to transfer, free of charge, the title deed, possession, and custody of the tertiary roads of the Department to the municipalities. This transfer shall be carried out in accordance with the procedures and conditions established in this Act and the regulations adopted thereunder. Section 4.- Every transfer of tertiary roads initiated under this Act shall be contingent on the municipalities acceptance through Ordinance. Section 5.- The transfer of tertiary roads from the Department to the municipalities shall be made, at least, in compliance with the following parameters: (a) The Department shall establish a process, through regulations, that includes, among other things, the application to be completed by every municipality that has determined to request the transfer of tertiary roads. Together with said application, the Municipality shall include a certification on the existence or nonexistence of a deficit in the budget of the municipality for the fiscal year in which the application is filed. (b) Said process shall not impair the purposes of this Act, and the same shall be simple and swift in order to make the transfer of tertiary roads to the municipality in question feasible.

5 5 (c) The Department, in conjunction with each municipality requesting the transfer, shall identify the tertiary roads to be transferred and shall, at least, provide the following during the process: (1) The ordinary name by which the tertiary road is known. (2) Classification and number of the tertiary roads, in accordance with the roads registry, maps, and plans of the Department. (3) Any documents germane to the ownership of the tertiary roads that are to be transferred. (d) The Secretary and the Mayor of the municipality concerned, or their authorized representatives shall execute a legal document attesting to ownership to be established by the Department through regulations, which shall contain, at least, the following: (1) The appearance of the Secretary or of the official authorized by him in representation of the Department. (2) Power of the Secretary to carry out the conditioned transfer of tertiary roads pursuant to this Act. (3) The appearance of the Mayor or of the official authorized by him, in representation of the municipality concerned, stating his personal circumstances. (4) Power of the Mayor of the municipality concerned to accept the transfer in representation of and on behalf of the municipality. (5) A mention of the municipal ordinance that approves the transfer of tertiary roads, including the date of approval thereof. Section 6.- The transfer of ownership of tertiary roads to a municipality shall be subject to the following restrictive conditions: (a) The municipality shall be under the obligation to maintain the nature and use of the transferred roads.

6 6 (b) No municipality may obtain the full ownership of a tertiary road or roads, unless it submits, together with the application, a certification of the existence or non-existence of a deficit in its budget for the fiscal year in which it submits such application. If there is evidence that the municipality has a deficit, it shall enclose an income and expenditures plan that identifies the source of the funds to be used in lieu of the resources additional to those provided in this Act that shall be used for the maintenance of the nature and use of the roads transferred. Said plan may include a reference to the corresponding percentage that shall be transferred to it as provided in Section 14 of this Act. Said plan shall be approved by the Municipal Legislature prior to executing the transfer deed directed by this Act. Section 7.- Every contract or agreement for the delegation of competence or administration agreement regarding tertiary roads executed by the Department and the Municipality that is in effect at the time of the transfer, shall immediately become ineffective and shall be rescinded due to confusion of rights. However, the same shall remain in effect until the regulations provided in Section 15 of this Act are promulgated, and the transfer is formalized. Contracts executed between the Department and natural or juridical persons shall remain in effect until the expiration date thereof. Section 8.- The provisions of Section 7 of this Act shall not apply to municipalities that choose to not accept the transfer of tertiary roads by virtue of this Act. Such municipalities may maintain or enter into other types of agreements and contracts with the Department with respect to tertiary roads. Section 9.- The Department retains its legal liability regarding any matter which occurs with respect to tertiary roads that are transferred until the moment in which the same are officially transferred to the municipality concerned. Said transfer shall be formalized at the time the parties sign the legal document mentioned in Section 5, subsection (d) of this Act.

7 7 Section 10.- After the transfer to the municipality has been carried out, the municipality shall be held liable for any matter which occurs in said property from that time and thereafter. Section 11.- In order to make this Act feasible, the designation of a Committee for the Transfer of Tertiary Roads is hereby directed in every participating municipality. The Committee shall have representation of the Secretary of the Department, the Puerto Rico Mayors Federation, and of the Puerto Rico Mayors Association. The representation of the Secretary, the Mayors Federation and the Mayors Association shall include areas of public policy, legal consultants, real estate and budget, among others. Section 12.- Among other things, the Committee shall be in charge of the following tasks: (a) With respect to the Department, it shall: (1) Identify the tertiary roads accepted by the municipality. (2) Draft the legal document to be signed by the parties, which shall transfer the ownership of tertiary roads to the municipality in question. (3) Identify the funds that shall be transferred through this Act to the municipalities, forty percent (40%) of which shall proceed from its budget already allocated for the maintenance of the roads of the Commonwealth. (b) With respect to the Municipality, it shall: (1) Present the ordinance accepting the transfer. Section 13.- The powers recognized to the Secretary and the Department by virtue of the Commonwealth Highways Administration, Maintenance, and Policing Act of Puerto Rico, Act No. 54 of May 30, 1973, as amended, shall be transferred to the municipal governments as it pertains to tertiary roads. For such purposes, the Department shall promulgate or amend regulations to make the aforesaid feasible within a term of ninety (90) days as of the approval of this Act.

8 8 Section 14.- An annual recurring appropriation is hereby established in the Department for a term of fifteen (15) years for the implementation of this Act. The amount of the funds to be appropriated by municipality shall be reduced by a fixed annual eight point thirty-three percent (8.33%) as of the fourth (4 th ) year up to the fifteenth (15 th ) year. This fund shall be used to be transferred to the municipalities that by virtue of this statute become owners of the tertiary roads located in their territories or geographic or jurisdictional demarcation. Section 15.- The funds shall be appropriated exclusively for the maintenance of tertiary roads, and the availability thereof shall be certified by the Office of Management and Budget. Section 16.- The distribution of the funds by municipality shall be made taking as a basis forty percent (40%) of the funds held by the Department in its budget to maintain tertiary roads, and which shall be equitably distributed taking into consideration the total kilometers of tertiary roads on the Island, and as established in the regulations referred to in Section 13 of this Act, and the endorsement of the Association and Federation of Mayors. Section 17.- The Department of Transportation and Public Works, the Office of the Commissioner of Municipal Affairs, the Planning Board, the Government Development Bank, and the municipalities that have availed themselves of this Act shall approve or temper any regulations, informative circular, or memorandum with this Act within a term of ninety (90) days as of the approval thereof. Any other regulations in inconsistent with the public policy herein established shall be amended by the pertinent agency. Section 18.- If any section, subsection or paragraph of the present Act were to be held to be unconstitutional by a court, the remaining sections, subsections, or paragraphs shall prevail.

9 9 Section 19.- The transfer of funds provided in this Act in favor of those municipalities that have availed themselves of the same shall not be an impediment for said municipalities to receive other available funds, whether federal or state, to address emergency, special, or catastrophic situations that could arise in the transferred tertiary roads. Section 20.- This Act shall take effect immediately after its approval.

10 10 CERTIFICATION I hereby certify to the Secretary of State that the following Act No (H. B. 5) of the 1 st Regular Session of the 17 th Legislative Assembly of Puerto Rico: AN ACT to create an Act to Transfer the Tertiary Roads of the Department of Transportation and Public Works of Puerto Rico to the Municipalities; and establish certain parameters and processes to regulate said transfers; and for other purposes. has been translated from Spanish to English and that the English version is correct. In San Juan, Puerto Rico, on this 3 rd day of October, Orlando Pagán-Ramírez Director