PRINTER'S NO. 4908
No. 3075 Session of 2006
INTRODUCED BY GEIST, PERZEL, McCALL, VEON, S. H. SMITH, DeWEESE, BALDWIN, MAHER, EACHUS, GERBER, ARGALL, BOYD, BUNT, CAPPELLI, CREIGHTON, DENLINGER, FICHTER, FRANKEL, HARRIS, HERSHEY, HICKERNELL, JOSEPHS, KAUFFMAN, M. KELLER, LEH, MAJOR, MARSICO, MUSTIO, REICHLEY, ROHRER, SAYLOR, SHAPIRO, SIPTROTH, SONNEY, STAIRS, R. STEVENSON, TURZAI, WILT AND YOUNGBLOOD, OCTOBER 25, 2006
REFERRED TO COMMITTEE ON TRANSPORTATION, OCTOBER 25, 2006
AN ACT 1 Amending Title 74 (Transportation) of the Pennsylvania 2 Consolidated Statutes, establishing public-private 3 transportation partnerships; and conferring powers and duties 4 on the Pennsylvania Public Utility Commission, the State 5 Transportation Commission and the Department of 6 Transportation. 7 The General Assembly of the Commonwealth of Pennsylvania 8 hereby enacts as follows: 9 Section 1. Title 74 of the Pennsylvania Consolidated 10 Statutes is amended by adding a part to read: 11 PART V 12 PUBLIC-PRIVATE TRANSPORTATION PARTNERSHIPS 13 Chapter 14 91. Preliminary Provisions 15 92. Public-Private Transportation Partnerships 16 CHAPTER 91 17 PRELIMINARY PROVISIONS
1 Sec. 2 9101. Scope of part. 3 9102. Declaration of policy. 4 9103. Construction of part. 5 § 9101. Scope of part. 6 This part relates to the Public-Private Transportation 7 Partnership. 8 § 9102. Declaration of policy. 9 (a) Legislative findings.--The General Assembly finds and 10 declares as follows: 11 (1) There exists a public need for the timely 12 development and operation of transportation facilities within 13 this Commonwealth which address the needs of Commonwealth, 14 regional or local transportation by improving safety, 15 reducing congestion, abating environmental pollution, 16 advancing energy efficiency or conservation, improving 17 homeland security and increasing capacity or enhancing 18 economic efficiency. 19 (2) This public need may not be wholly satisfied through 20 the use of currently existing methods of financing and 21 procurement in which transportation facilities are developed 22 or operated. 23 (3) Authorizing private entities to develop and operate 24 transportation facilities may result in the availability of 25 these transportation facilities to the public in a more 26 timely, more efficient or less costly fashion, thereby 27 serving the public safety and welfare. 28 (b) Intent.--It is the intent of this part: 29 (1) to encourage investment in this Commonwealth by 30 private entities to assist in the development and operation 20060H3075B4908 - 2 -
1 of transportation facilities; and 2 (2) to accomplish the goal under paragraph (1), to 3 provide public entities and private entities with the 4 greatest possible flexibility in contracting with each other 5 for the provision of the public services which are the 6 subject of this title. 7 § 9103. Construction of part. 8 (a) Liberal construction.--This part shall be liberally 9 construed in conformity with and to accomplish section 9102 10 (relating to declaration of policy). 11 (b) Sole authority.--This part provides public-private 12 transportation partnership opportunities to public entities and 13 private entities and shall be construed as the sole statutory 14 authority enabling a public entity to participate with a private 15 entity in a transportation-related contract, project or activity 16 governed by this part. 17 CHAPTER 92 18 PUBLIC-PRIVATE TRANSPORTATION PARTNERSHIPS 19 Sec. 20 9201. Definitions. 21 9202. Prerequisite for operation. 22 9203. Approval. 23 9204. Service contracts. 24 9205. Transfer and dedication of public property. 25 9206. Powers, duties and liability of the private entity. 26 9207. Interim agreement. 27 9208. Comprehensive agreement. 28 9209. Multiple affected public entities. 29 9210. Federal, Commonwealth and local assistance. 30 9211. Financing. 20060H3075B4908 - 3 -
1 9212. Material default; remedies. 2 9213. Eminent domain. 3 9214. Public utility crossings. 4 9215. Police powers; violations of law. 5 9216. Transfer of assets. 6 9217. Procurement. 7 9218. Public-Private Transportation Partnership Fund. 8 § 9201. Definitions. 9 Subject to additional definitions contained in subsequent 10 provisions of this part which are applicable to specific 11 provisions of this part, the following words and phrases when 12 used in this part shall have the meanings given to them in this 13 section unless the context clearly indicates otherwise: 14 "Affected jurisdiction." A county, city, borough, 15 incorporated town, township or local, regional or metropolitan 16 transportation organization: 17 (1) in which all or a portion of a qualifying 18 transportation facility is located; or 19 (2) which is directly affected by the qualifying 20 transportation facility. 21 "Affected public entity." A public entity which owns a 22 proposed qualifying transportation facility or a qualifying 23 transportation facility. The term does not include a 24 Commonwealth agency. 25 "Commission." The Pennsylvania Public Utility Commission. 26 "Comprehensive agreement." The comprehensive agreement 27 entered into between a private entity and the responsible public 28 entity or the affected public entity under section 9208 29 (relating to comprehensive agreement). 30 "Department." The Department of Transportation of the 20060H3075B4908 - 4 -
1 Commonwealth. 2 "Develop." To plan, design, finance, lease, install, 3 construct or expand. 4 "Development." Planning, designing, financing, leasing, 5 installing, constructing or expanding. 6 "Fund." The Public-Private Transportation Partnership Fund 7 established in section 9218 (relating to Public-Private 8 Transportation Partnership Fund). 9 "Highway." A way or place open to the use of the public for 10 purposes of vehicle traffic. 11 "Interim agreement." An agreement, including a memorandum of 12 understanding or binding preliminary agreement, between a 13 private entity and the responsible public entity or the affected 14 public entity under section 9207 (relating to interim agreement) 15 which provides for completion of studies and any other 16 activities to advance the development or operation of a 17 qualifying transportation facility. 18 "Law enforcement officer." An individual authorized by law 19 to make arrests for violations of law. 20 "Material default." A default by a private entity in the 21 performance of its duties under section 9206 (relating to 22 powers, duties and liability of the private entity) which: 23 (1) jeopardizes adequate service to the public from a 24 qualifying transportation facility; and 25 (2) remains unremedied after the responsible public 26 entity or the affected public entity has provided notice to 27 the private entity and a reasonable cure period has elapsed. 28 "Multimodal transportation facility." A transportation 29 facility consisting of multiple modes of transportation. 30 "Operate." To finance, maintain, improve, equip, modify, 20060H3075B4908 - 5 -
1 repair, manage, run or control functioning. 2 "Operation." The act of financing, maintaining, improving, 3 equipping, modifying, repairing, managing, running or 4 controlling functioning. 5 "Private entity." Any individual, corporation, partnership, 6 limited liability company, limited partnership, joint venture, 7 business trust, public utility, nonprofit corporation or other 8 business entity authorized to conduct business in this 9 Commonwealth. 10 "Procurement Code." The provisions of 62 Pa.C.S. Pt. I 11 (relating to Commonwealth Procurement Code). 12 "Public entity." The Commonwealth; any department, board, 13 commission, authority or agency of the Commonwealth, whether or 14 not subject to the policy supervision and control of the 15 Governor; a political subdivision; and a local, regional or 16 metropolitan transportation authority. The term does not include 17 any court or other officer or agency of the unified judicial 18 system or the General Assembly and its officers and agencies. 19 "Public utility." As defined in 66 Pa.C.S. § 102 (relating 20 to definitions). 21 "Qualifying transportation facility." A transportation 22 facility developed or operated by a private entity under this 23 part. The term includes a multimodal transportation facility. 24 "Responsible public entity." The Department of 25 Transportation. 26 "Revenue." Money generated from or received in support of 27 the development or operation of a qualifying transportation 28 facility. The term includes: income; earnings; user fees; lease 29 payments; allocations; Federal, Commonwealth and political 30 subdivision appropriations; proceeds of bonds or notes; equity 20060H3075B4908 - 6 -
1 investments; service payments; Federal grants; and money from a 2 Federal agency or instrumentality. 3 "Service contract." A contract entered into between a public 4 entity and a private entity under section 9204 (relating to 5 service contracts). 6 "Service payments." Payments to a private entity pursuant to 7 a service contract. 8 "Transportation commission." The State Transportation 9 Commission created in section 468 of the act of April 9, 1929 10 (P.L.177, No.175), known as The Administrative Code of 1929. 11 "Transportation facility." Any highway, bridge, tunnel, 12 overpass, ferry, airport, mass transportation facility, vehicle 13 parking facility, port facility, railroad, guideway, street 14 railway or similar facility used for the transportation of 15 persons or goods. 16 (1) The term includes: 17 (i) A substantial enhancement, an improvement or an 18 increase in capacity made to a facility listed in this 19 definition. 20 (ii) Any building, structure, parking area, 21 appurtenance and other property needed to operate a 22 facility listed in this definition. 23 (iii) A substantial enhancement, an improvement or 24 an increase in capacity to a facility excluded under 25 paragraph (2). 26 (2) The term does not include a facility listed in this 27 definition: 28 (i) which is available for use by the public on the 29 effective date of this definition; and 30 (ii) for the use of which no toll, fee or charge is 20060H3075B4908 - 7 -
1 imposed on the public. 2 "Transportation organization." Any mass transportation, 3 port, bridge, rail, regional planning or airport authority or 4 commission organized under the laws of this Commonwealth or 5 under an interstate compact or otherwise empowered to render, 6 contract for or assist in the rendering of transportation 7 service or transportation planning in a limited area in this 8 Commonwealth, even though it may also render or assist in 9 rendering transportation service or transportation planning in 10 adjacent states. 11 "User fees." Rates, tolls, fees or other charges imposed by 12 a private entity for use of all or a portion of a qualifying 13 transportation facility pursuant to an interim agreement or a 14 comprehensive agreement. 15 "Vehicle." A conveyance in or on which persons or property 16 may be carried. 17 § 9202. Prerequisite for operation. 18 A private entity seeking authorization under this part to 19 develop or operate a transportation facility must obtain written 20 approval from the responsible public entity and the affected 21 public entity or written approval from the responsible public 22 entity and deemed approval from the affected public entity under 23 section 9203 (relating to approval). A private entity may 24 initiate the approval process by requesting approval under 25 section 9203(a), or the responsible public entity, on its own 26 initiative or jointly with the affected public entity, may 27 request proposals under section 9203(b). 28 § 9203. Approval. 29 (a) Submission of proposals by private entities.--The 30 following shall apply to the submission of proposals by private 20060H3075B4908 - 8 -
1 entities: 2 (1) A private entity may submit a proposal to the 3 responsible public entity for approval to develop or operate 4 a transportation facility. The proposal shall be accompanied 5 by the following material and information unless waived by 6 the responsible public entity as provided in regulations 7 adopted under subsection (f): 8 (i) A topographic map of 1:2,000 or other 9 appropriate scale indicating the location of the 10 transportation facility or facilities. 11 (ii) A description of the transportation facility or 12 facilities, including the conceptual design of the 13 facility and all proposed interconnections with other 14 transportation facilities. 15 (iii) The proposed date for development or operation 16 of the transportation facility along with an estimate of 17 the life cycle cost of the transportation facility as 18 proposed. 19 (iv) A statement setting forth the method by which 20 the private entity proposes to secure any real, personal 21 or mixed property interests required for the 22 transportation facility. 23 (v) Information relating to the current 24 transportation plans of each affected jurisdiction. 25 (vi) A list of all permits and approvals required 26 for developing or operating improvements to the 27 transportation facility from local, Commonwealth or 28 Federal agencies and a projected schedule for obtaining 29 the permits and approvals. 30 (vii) A list of public utility, railroad and cable 20060H3075B4908 - 9 -
1 television provider facilities that will be crossed by 2 the transportation facility and a statement of the plans 3 of the private entity to accommodate the crossings. 4 (viii) A statement setting forth the private 5 entity's general plans for developing or operating the 6 transportation facility, including identification of 7 revenue or proposed debt or equity investment proposed by 8 the private entity. 9 (ix) The names and addresses of the persons who may 10 be contacted for further information concerning the 11 proposal. 12 (x) Information on how the private entity's proposal 13 will address the needs of Commonwealth, regional or local 14 transportation by improving safety, reducing congestion, 15 abating environmental pollution, advancing energy 16 efficiency or conservation, improving homeland security, 17 increasing capacity or enhancing economic efficiency. 18 (xi) A summary of the proposal. 19 (xii) Additional material and information as may 20 reasonably be requested under regulations promulgated 21 under subsection (f). 22 (2) Within five days following receipt of a proposal, 23 the responsible public entity shall provide a copy of the 24 proposal to the department. Within 45 days following receipt 25 of a proposal, the transportation commission may submit its 26 comments on the proposal to the responsible public entity, 27 which shall provide a copy of the department's comments to 28 the affected public entity and to each affected jurisdiction. 29 (3) The following shall apply: 30 (i) The responsible public entity shall determine if 20060H3075B4908 - 10 -
1 the proposal includes an affected public entity and 2 shall, within five days following receipt of the 3 proposal, provide each affected public entity with a copy 4 of the summary submitted by the private entity, together 5 with a written request for the affected public entity's 6 comments and recommendations on the proposal. 7 (ii) The affected public entity's comments shall 8 include whether the proposed qualifying transportation 9 facility will address the needs of Commonwealth, regional 10 or local transportation by improving safety, reducing 11 congestion, abating environmental pollution, advancing 12 energy efficiency or conservation, improving homeland 13 security, increasing capacity or enhancing economic 14 efficiency. The comments and recommendations of the 15 affected public entity shall utilize the criteria 16 provided in subsection (d) and any additional criteria 17 specified in regulations promulgated under subsection (f) 18 and shall be submitted to the responsible public entity 19 and the transportation commission within 45 days 20 following receipt of the responsible public entity's 21 request for comments and recommendations. 22 (iii) If the affected public entity fails to provide 23 its comments and recommendations to the responsible 24 public entity within the 45-day period specified in this 25 paragraph or if there are multiple affected public 26 entities, the affected public entity shall be deemed to 27 have approved the proposal and, if the responsible public 28 entity approves the proposal, shall cooperate fully in 29 the completion, execution and implementation of any 30 interim agreement or comprehensive agreement related to 20060H3075B4908 - 11 -
1 the proposal. 2 (4) The following shall apply: 3 (i) Within 10 days following receipt of a proposal, 4 the responsible public entity shall provide a copy of the 5 summary submitted by the private entity, together with a 6 written notification of receipt of the proposal, to each 7 affected jurisdiction. As part of its written 8 notification, the responsible public entity shall 9 identify each affected public entity and shall request 10 that comments on the proposal be submitted by each 11 affected jurisdiction. Within 30 days following receipt 12 of a request from the responsible public entity, each 13 affected jurisdiction shall submit its comments to the 14 responsible public entity, each affected public entity 15 and the transportation commission. 16 (ii) The affected jurisdiction's comments shall 17 include whether the proposed qualifying transportation 18 facility will address the needs of Commonwealth, regional 19 or local transportation by improving safety, reducing 20 congestion, abating environmental pollution, advancing 21 energy efficiency or conservation, improving homeland 22 security, increasing capacity or enhancing economic 23 efficiency. 24 (5) A written approval or rejection of the proposal 25 shall be submitted by the responsible public entity to the 26 private entity within 30 days following the end of all review 27 periods provided under paragraphs (2), (3) and (4). 28 (6) The following shall apply: 29 (i) If the responsible public entity approves the 30 private entity's proposal, the responsible public entity, 20060H3075B4908 - 12 -
1 or the affected public entity and the responsible public 2 entity, jointly, may issue a request for proposals under 3 section 9217 (relating to procurement) from other private 4 entities for the development or operation of the 5 transportation facility. The request for proposals shall 6 include a requirement that a summary of the response be 7 submitted. 8 (ii) Within five days following receipt of a 9 response to a request for proposals, the responsible 10 public entity shall submit the summary of the response to 11 the transportation commission and to each affected 12 jurisdiction, which shall have 15 days following receipt 13 of the summary within which to provide comments to the 14 responsible public entity and the affected public entity. 15 (iii) Within 30 days following the expiration of the 16 transportation commission and affected jurisdiction 17 review period, the responsible public entity shall 18 provide written notification of its acceptance or 19 rejection of the initial proposal and each response to 20 the request for proposals to the private entity which 21 submitted the initial proposal, each private entity which 22 responded to the request for proposals, the 23 transportation commission, the affected public entity and 24 each affected jurisdiction. 25 (7) The responsible public entity and the affected 26 public entity may provide for payment to a private entity 27 whose proposal or response to any subsequent request for 28 proposals is not approved of an amount as reimbursement or 29 partial reimbursement for costs incurred by the private 30 entity in preparing the proposal or response, and, in return 20060H3075B4908 - 13 -
1 for this payment, the private entity shall grant to the 2 responsible public entity and the affected public entity the 3 right to use all or any portion of the proposal or the 4 response, including the technologies, techniques, methods, 5 processes and information contained in the project design. 6 (b) Issuance of request for proposals.--The following shall 7 apply to issuance of request for proposals: 8 (1) The responsible public entity may, on its own 9 initiative or at the request of an affected public entity, 10 issue a request for proposals from private entities for the 11 development or operation of transportation facilities. An 12 affected public entity may only issue a request for proposals 13 from private entities for the development or operation of 14 transportation facilities jointly with the responsible public 15 entity. The responsible public entity or the affected public 16 entity shall not charge a fee to cover the costs of 17 processing, reviewing and evaluating responses received to a 18 request for proposals issued under this subsection. 19 (2) The following shall apply: 20 (i) The responsible public entity shall, on the date 21 of issuance of a request for proposals, provide a copy of 22 the request for proposals to the transportation 23 commission and to each affected jurisdiction. As part of 24 the request for proposals, the responsible public entity 25 shall require a private entity submitting a response to 26 simultaneously submit a written summary of its response 27 to the responsible public entity, to the affected public 28 entity, to the transportation commission and to each 29 affected jurisdiction identified in the request for 30 proposals. 20060H3075B4908 - 14 -
1 (ii) Within 30 days of receipt of a summary of a 2 response from a private entity, each affected 3 jurisdiction shall submit its written comments on the 4 response to the responsible public entity, the affected 5 public entity and the transportation commission. Any 6 comments submitted by an affected jurisdiction must 7 include an indication of whether the affected 8 jurisdiction believes the proposed qualifying 9 transportation facility will address the needs of 10 Commonwealth, regional or local transportation by 11 improving safety, reducing congestion, abating 12 environmental pollution, advancing energy efficiency or 13 conservation, improving homeland security, increasing 14 capacity or enhancing economic efficiency. 15 (iii) The transportation commission shall have 15 16 days following the expiration of the 30-day affected 17 jurisdiction comment period provided in this paragraph 18 within which to submit written comments on the response 19 to the responsible public entity and the affected public 20 entity. 21 (3) If a private entity's response is not approved, the 22 responsible public entity and the affected public entity may 23 provide for payment of an amount as reimbursement or partial 24 reimbursement for costs incurred by the private entity in 25 preparing the response, and, in return for this payment, the 26 private entity shall grant to the responsible public entity 27 and the affected public entity the right to use all or a 28 portion of the response, including the technologies, 29 techniques, methods, processes and information contained in 30 the project design. 20060H3075B4908 - 15 -
1 (c) Private entity adverse interests.--The following shall 2 apply: 3 (1) Except as provided in paragraph (2), a private 4 entity which submits a proposal or a response to a request 5 for proposals under subsection (a) or which submits a 6 response to a request for proposals under subsection (b) and 7 which is also a State advisor or a State consultant for the 8 responsible public entity or an affected public entity shall 9 not be deemed to be in violation of the act of July 19, 1957 10 (P.L.1017, No.451), known as the State Adverse Interest Act, 11 while engaging in any of the following activities: 12 (i) Preparing or submitting the proposal or response 13 to a request for proposals. 14 (ii) Participating in any activities with the 15 responsible public entity or the affected public entity 16 related to the proposal or response to request for 17 proposals. 18 (iii) Negotiating and entering into any contract, 19 lease, interim agreement or comprehensive agreement with 20 the responsible public entity or the affected public 21 entity which results from the proposal or response to 22 request for proposals. 23 (iv) Engaging in other actions taken in furtherance 24 of the purposes of this part. 25 (2) A private entity which submits a proposal or a 26 response to a request for proposals shall be prohibited from 27 providing advice to the responsible public entity and the 28 affected public entity under subsection (d) on its proposal 29 or a request for proposals for which it has submitted a 30 response. 20060H3075B4908 - 16 -
1 (d) Criteria for review.--The responsible public entity and 2 the affected public entity may grant approval of the development 3 or operation of the transportation facility as a qualifying 4 transportation facility if both the responsible public entity 5 and the affected public entity determine that it serves the 6 public purpose of this part. The responsible public entity and 7 the affected public entity may determine that the development or 8 operation of the transportation facility as a qualifying 9 transportation facility serves such public purpose if all of the 10 following apply: 11 (1) There is a public need for the transportation 12 facility the private entity proposes to develop or operate as 13 a qualifying transportation facility. 14 (2) The transportation facility and the proposed 15 interconnections with existing transportation facilities and 16 the private entity's plans for development or operation of 17 the qualifying transportation facility are, in the opinion of 18 the responsible public entity and the affected public entity, 19 reasonable and will address the needs of Commonwealth, 20 regional or local transportation by improving safety, 21 reducing congestion, addressing environmental concerns, 22 advancing energy efficiency or conservation, improving 23 homeland security, increasing capacity or enhancing economic 24 efficiency. 25 (3) The estimated cost of the transportation facility is 26 reasonable in relation to similar facilities. 27 (4) The private entity's plans will result in the timely 28 development, operation or more efficient operation of the 29 transportation facility. 30 (5) The private entity will agree to honor any existing 20060H3075B4908 - 17 -
1 collective bargaining agreement related to the qualifying 2 transportation facility for the term of the agreement and 3 will comply with the act of August 15, 1961 (P.L.987, 4 No.442), known as the Pennsylvania Prevailing Wage Act, with 5 regard to the development or operation of the qualifying 6 transportation facility. In evaluating a proposal or response 7 to a request for proposals, the responsible public entity and 8 the affected public entity may rely upon internal staff 9 reports prepared by personnel familiar with the operation of 10 similar facilities or the advice of outside advisors or 11 consultants having relevant experience. The responsible 12 public entity and the affected public entity may request the 13 advice of and assistance from other public entities in the 14 performance of their duties under this part. 15 (e) Fees.--The following shall apply to fees: 16 (1) The responsible public entity may charge a 17 reasonable fee to cover the costs of processing, reviewing 18 and evaluating a proposal submitted by a private entity or a 19 subsequent response to a request for proposals under 20 subsection (a), including reasonable attorney fees and fees 21 for financial and other necessary advisors or consultants. 22 The fee to be charged by the responsible public entity shall 23 include a reasonable reimbursement for costs incurred by the 24 affected public entity for its review of a proposal or a 25 response to a request for proposals. The responsible public 26 entity shall annually publish a notice in the Pennsylvania 27 Bulletin of the fee schedule for the review of proposals and 28 responses to requests for proposals submitted by private 29 entities under subsection (a). 30 (2) All fees collected under paragraph (1) shall be 20060H3075B4908 - 18 -
1 retained by the responsible public entity and the affected 2 public entity and used as provided under paragraph (1) or for 3 other purposes permitted under this part. 4 (3) No fee shall be imposed by the responsible public 5 entity or any affected public entity for the cost of 6 processing, reviewing and evaluating responses to any request 7 for proposals under subsection (b). 8 (f) Regulations.--The following shall apply to regulations: 9 (1) In order to facilitate the implementation of this 10 part and to provide one uniform procedure for submission and 11 review of proposals submitted, issuance of a request for 12 proposals and submission and review of responses to a request 13 for proposals under subsection (a) and responses to requests 14 for proposals under subsection (b), the responsible public 15 entity shall promulgate regulations that include all of the 16 following: 17 (i) A specific schedule for review of proposals or 18 responses to requests for proposals by the responsible 19 public entity and the affected public entity. 20 (ii) A process for alteration of that schedule by 21 the responsible public entity and the affected public 22 entity if changes are necessary because of the scope or 23 complexity of proposals or responses received. 24 (iii) The process for receipt and review of 25 competing proposals and responses to requests for 26 proposals. 27 (iv) The type and amount of information that is 28 necessary for adequate review of proposals or responses 29 to requests for proposals in each stage of review. 30 (v) A prioritized documentation, review and 20060H3075B4908 - 19 -
1 selection process for qualifying transportation 2 facilities that have approved or pending Federal and 3 Commonwealth clearances, have secured significant right- 4 of-way, have previously been allocated significant 5 Federal or Commonwealth funding or exhibit other 6 circumstances that could reasonably reduce the amount of 7 time to develop or operate the qualifying transportation 8 facility in accordance with the purpose of this part. 9 (vi) Action to be taken to protect confidential and 10 proprietary information required under subsection (i). 11 (vii) Any other provisions which are required under 12 this part or which the responsible public entity 13 determines are necessary for implementation of this part. 14 (2) Within 120 days following the effective date of this 15 subsection, the responsible public entity shall publish draft 16 interim regulations in the Pennsylvania Bulletin for comment. 17 The draft interim regulations shall have a 60-day public 18 comment period. Within 90 days following the close of the 19 public comment period on the draft interim regulations, the 20 responsible public entity shall publish final interim 21 regulations in the Pennsylvania Bulletin implementing this 22 part. The draft interim regulations and the final interim 23 regulations shall not be subject to section 201 of the act of 24 July 31, 1968 (P.L.769, No.240), referred to as the 25 Commonwealth Documents Law, nor to review or approval under 26 the act of June 25, 1982 (P.L.633, No.181), known as the 27 Regulatory Review Act. The final interim regulations shall 28 expire on the earlier of the following: 29 (i) Two years after their publication in the 30 Pennsylvania Bulletin. 20060H3075B4908 - 20 -
1 (ii) The publication of final regulations pursuant 2 to the Commonwealth Documents Law and the Regulatory 3 Review Act. 4 (g) Requirement for interim agreement or comprehensive 5 agreement.--The approval of the responsible public entity and 6 the affected public entity shall be subject to the private 7 entity's entering into an interim agreement or a comprehensive 8 agreement with the responsible public entity and the affected 9 public entity. 10 (h) Date for beginning construction or improvements.--In 11 connection with approval of the development or operation of the 12 transportation facility as a qualifying transportation facility, 13 the responsible public entity and the affected public entity 14 shall establish a date for the beginning of construction of or 15 improvements to the qualifying transportation facility. The 16 responsible public entity and the affected public entity may 17 extend this date. 18 (i) Confidential and proprietary information.--The following 19 shall apply: 20 (1) In the regulations promulgated under subsection (f), 21 the responsible public entity shall specify appropriate 22 action to be taken by the responsible public entity, the 23 affected public entity, the affected jurisdiction and the 24 transportation commission to protect confidential and 25 proprietary information provided by the private entity. 26 (2) A proposal or a response to a request for proposals 27 submitted by a private entity under subsection (a), a 28 response submitted by a private entity to a request for 29 proposals under subsection (b) and the summary of the 30 proposal or response shall be confidential and, until a 20060H3075B4908 - 21 -
1 comprehensive agreement under section 9208 (relating to 2 comprehensive agreement) is entered into by the private 3 entity and the responsible public entity or the affected 4 public entity, the proposal, the response and the summary 5 shall not be subject to disclosure under the act of June 21, 6 1957 (P.L.390, No.212), known as the Right-to-Know Law, or 7 any other act. Upon the execution of a comprehensive 8 agreement under section 9208, information contained in the 9 proposal, the response and the summary shall be considered to 10 be a public record for purposes of disclosure under the 11 Right-to-Know Law. 12 (j) Federal credit assistance.--The responsible public 13 entity and the affected public entity may also apply for, 14 execute or endorse applications submitted by private entities to 15 obtain Federal credit assistance for qualifying transportation 16 facilities developed or operated under this part. 17 (k) Taxes.--All of the following shall apply: 18 (1) Revenue received by a private entity and all user 19 fees shall continue to be subject to any tax, and to future 20 increases in the rate of any tax, which was imposed by a 21 political subdivision prior to the effective date of this 22 subsection and which was otherwise applicable to the revenue 23 and user fees. 24 (2) No new tax may be imposed by a political subdivision 25 on the revenue received by a private entity or on user fees. 26 (l) Definitions.--The following words and phrases when used 27 in this section shall have the meanings given to them in this 28 subsection, unless the context clearly indicates otherwise: 29 "State advisor." As defined in section 2 of the act of July 30 19, 1957 (P.L.1017, No.451), known as the State Adverse Interest 20060H3075B4908 - 22 -
1 Act. 2 "State consultant." As defined in section 2 of the act of 3 July 19, 1957 (P.L.1017, No.451), known as the State Adverse 4 Interest Act. 5 § 9204. Service contracts. 6 In addition to any authority otherwise conferred by law, a 7 public entity may contract with a private entity for 8 transportation services to be provided by a qualifying 9 transportation facility in exchange for service payments and 10 other consideration as the public entity may deem appropriate. 11 § 9205. Transfer and dedication of public property. 12 (a) Powers.--Except for an ownership interest and subject to 13 the provisions of this part, a public entity may transfer a 14 real, personal or mixed property interest it has in a qualifying 15 transportation facility to a private entity for such 16 consideration as the public entity and the private entity may 17 agree upon. 18 (b) Consideration.--Consideration under subsection (a) may 19 include the agreement of the private entity to operate the 20 qualifying transportation facility. 21 (c) Interests.--Except for an ownership interest, the real, 22 personal or mixed property interests that the public entity may 23 transfer to the private entity under this section may include 24 licenses, leaseholds, franchises, easements or any other right 25 or interest in the qualifying transportation facility which the 26 public entity deems appropriate. 27 (d) Additional property.--Subject to the provisions of this 28 part, the private entity may acquire, construct and purchase 29 additional real, personal and mixed property and incorporate the 30 additional property into the qualifying transportation facility 20060H3075B4908 - 23 -
1 if, upon the incorporation, all ownership interests in the 2 property are transferred and dedicated to and vested in the 3 public entity, for such consideration as the public entity and 4 the private entity may agree, with the private entity retaining 5 the property interests other than an ownership interest. 6 (e) Definition.--As used in this section, the term 7 "ownership interest" means fee simple title and reversionary 8 interest in the real property and similar title and rights in 9 the personal and mixed property constituting the qualifying 10 transportation facility. 11 § 9206. Powers, duties and liability of the private entity. 12 (a) General powers.--A private entity shall have all power 13 allowed by law generally to a private entity having the same 14 form of organization as the private entity and shall have the 15 power to develop or operate the qualifying transportation 16 facility, impose user fees and enter into service contracts in 17 connection with the use of the qualifying transportation 18 facility. No tolls or user fees may be imposed by the private 19 entity without the necessary Federal, Commonwealth or local 20 approvals and as provided in the interim agreement or the 21 comprehensive agreement. 22 (b) Right to lease, use, develop or operate qualifying 23 transportation facility.--A private entity may lease or acquire 24 any other right to use or develop or operate the qualifying 25 transportation facility. No interim agreement, comprehensive 26 agreement, lease or contract involving real property of a 27 qualifying transportation facility shall be subject to the 28 realty transfer tax imposed under Article XI-C or XI-D of the 29 act of March 4, 1971 (P.L.6, No.2), known as the Tax Reform Code 30 of 1971, or under the act of December 31, 1965 (P.L. 1257, 20060H3075B4908 - 24 -
1 No.511), known as The Local Tax Enabling Act. 2 (c) Canals and waterways.--Subject to applicable permit 3 requirements, a private entity shall have the authority to cross 4 any canal or navigable watercourse if the crossing does not 5 unreasonably interfere with then-current navigation and use of 6 the waterway. 7 (d) Operation of qualifying transportation facility.--In 8 operating the qualifying transportation facility, a private 9 entity may do all of the following: 10 (1) Make classifications according to reasonable 11 categories for assessment of user fees. 12 (2) Make and enforce, with the consent of the 13 responsible public entity or the affected public entity, 14 reasonable rules to the same extent that the responsible 15 public entity or the affected public entity may make and 16 enforce rules with respect to a similar transportation 17 facility. 18 (e) Duties.--The private entity shall do all of the 19 following: 20 (1) Develop or operate, in accordance with the 21 provisions of the interim agreement or the comprehensive 22 agreement, the qualifying transportation facility in a manner 23 that meets the standards of the responsible public entity or 24 the affected public entity for similar transportation 25 facilities operated and maintained by the responsible public 26 entity or the affected public entity. 27 (2) Keep the qualifying transportation facility open for 28 use by the members of the public, in accordance with the 29 terms and conditions of the interim or comprehensive 30 agreement, after its initial opening upon payment of the 20060H3075B4908 - 25 -
1 applicable user fees or service payments. The qualifying 2 transportation facility may be temporarily closed because of 3 emergencies or, with the consent of the responsible public 4 entity or the affected public entity, to protect the safety 5 of the public or for reasonable construction or maintenance 6 procedures. 7 (3) Maintain or provide by contract for the maintenance 8 of the qualifying transportation facility. 9 (4) Cooperate with the responsible public entity or the 10 affected public entity in establishing any interconnection 11 with the qualifying transportation facility requested by the 12 responsible public entity or the affected public entity. 13 (5) Comply with the provisions of the interim or 14 comprehensive agreement and any service contract. 15 (f) Liability.--In recognition of the public benefit derived 16 from a private entity's development or operation of a qualifying 17 transportation facility, a private entity which develops or 18 operates a qualifying transportation facility shall not be 19 subject to civil liability that arises due to the injury or 20 death of an individual using the qualifying transportation 21 facility, unless the injury or death results from an act or 22 omission of the private entity constituting gross negligence, 23 recklessness or intentional misconduct. 24 § 9207. Interim agreement. 25 (a) Provisions.--Prior to or in connection with the 26 negotiation of the comprehensive agreement as provided under 27 section 9208 (relating to comprehensive agreement), the 28 responsible public entity or the affected public entity may 29 enter into an interim agreement with a private entity proposing 30 the development or operation of the proposed qualifying 20060H3075B4908 - 26 -
1 transportation facility. The interim agreement shall require a 2 private entity, for the term of the interim agreement, to 3 provide the responsible public entity or the affected public 4 entity with periodic reports and audits related to disclosure, 5 internal control and performance and financial accounting. The 6 periodic reports and audits shall be prepared by an independent 7 consulting or certified public accounting firm engaged by the 8 private entity and shall be made available by the responsible 9 public entity or the affected public entity for public 10 inspection and copying under the act of June 21, 1957 (P.L.390, 11 No.212), known as the Right-to-Know Law. The interim agreement 12 may provide for all of the following: 13 (1) Permitting the private entity to commence activities 14 for which it may be compensated relating to the proposed 15 qualifying transportation facility, including project 16 planning and development, advance right-of-way acquisition, 17 design and engineering, environmental analysis and 18 mitigation, survey, conducting transportation and revenue 19 studies and ascertaining the availability of financing for 20 the proposed qualifying transportation facility or 21 facilities. 22 (2) Establishing the process and timing of the 23 negotiation of the comprehensive agreement. 24 (3) Containing any other provisions related to any 25 aspect of the development or operation of a qualifying 26 transportation facility that the parties may deem 27 appropriate. 28 (b) Multiple private entities.--Notwithstanding any other 29 provision of this part, the responsible public entity or the 30 affected public entity may enter into an interim agreement with 20060H3075B4908 - 27 -
1 multiple private entities if the responsible public entity or 2 the affected public entity determines in writing that it is in 3 the public interest to do so. The written determination may not 4 take effect until a copy is provided to the transportation 5 commission and is published as a notice in the Pennsylvania 6 Bulletin. 7 § 9208. Comprehensive agreement. 8 (a) Provisions.--Prior to developing or operating the 9 qualifying transportation facility, a private entity shall enter 10 into a comprehensive agreement with the responsible public 11 entity or the affected public entity. The comprehensive 12 agreement shall, as appropriate, provide for all of the 13 following: 14 (1) Delivery of performance and payment bonds in 15 connection with the development or operation of the 16 qualifying transportation facility, in the forms and amounts 17 satisfactory to the responsible public entity or the affected 18 public entity. 19 (2) Review of plans for the development or operation of 20 the qualifying transportation facility by the responsible 21 public entity or the affected public entity and approval by 22 the responsible public entity or the affected public entity 23 if the plans conform to standards acceptable to the 24 responsible public entity or the affected public entity. 25 (3) Periodic inspection of construction of or 26 improvements to the qualifying transportation facility by the 27 responsible public entity or the affected public entity to 28 ensure that they conform to the standards acceptable to the 29 responsible public entity or the affected public entity. 30 (4) Maintenance of a policy of public liability 20060H3075B4908 - 28 -
1 insurance, copies of which shall be filed with the 2 responsible public entity or the affected public entity, 3 accompanied by proofs of coverage, or self-insurance, each in 4 form and amount satisfactory to the responsible public entity 5 or the affected public entity and reasonably sufficient to 6 insure coverage of tort liability to the public and employees 7 and to enable the continued operation of the qualifying 8 transportation facility. 9 (5) Periodic monitoring of the maintenance practices of 10 the private entity by the responsible public entity or the 11 affected public entity and the taking of actions as the 12 responsible public entity or the affected public entity finds 13 appropriate to ensure that the qualifying transportation 14 facility is properly maintained. 15 (6) Reimbursement to be paid to the responsible public 16 entity or the affected public entity for services provided by 17 the responsible public entity or the affected public entity. 18 (7) Filing of appropriate financial statements in a form 19 acceptable to the responsible public entity or the affected 20 public entity on a periodic basis. 21 (8) Compensation to the private entity, which may 22 include one or a combination of a reasonable development fee, 23 a reasonable maximum rate of return on investment or 24 reimbursement of development expenses in the event of 25 termination for convenience by the responsible public entity 26 or the affected public entity, as agreed upon between the 27 responsible public entity or the affected public entity and 28 the private entity. 29 (9) The date of termination of the private entity's 30 authority and duties under this part and transfer to the 20060H3075B4908 - 29 -
1 responsible public entity or the affected public entity. 2 (10) Guaranteed cost and completion guarantees related 3 to the development or operation of the qualifying 4 transportation facility and payment of damages for failure to 5 meet the completion guarantee. 6 (11) Submission, on at least an annual basis, by the 7 private entity to the responsible public entity or the 8 affected public entity of reports and audits related to 9 disclosure, internal control and performance and financial 10 accounting. The reports and audits shall be prepared by an 11 independent consulting or certified public accounting firm 12 engaged by the private entity and shall be made available by 13 the responsible public entity or the affected public entity 14 for public inspection and copying under the act of June 21, 15 1957 (P.L.390, No.212), known as the Right-to-Know Law. 16 (b) User fees.--The following shall apply: 17 (1) The comprehensive agreement shall provide for user 18 fees as may be established by agreement of the parties. 19 (2) User fees shall be set at a level that takes into 20 account lease payments, service payments and compensation to 21 the private entity or as specified in the comprehensive 22 agreement. 23 (3) A copy of any service contract shall be filed with 24 the responsible public entity or the affected public entity. 25 (4) A schedule of the current user fees shall be 26 provided by the private entity to the responsible public 27 entity, the affected public entity and each affected 28 jurisdiction when initially imposed and whenever changed and 29 shall be made available by the private entity to any member 30 of the public on request. 20060H3075B4908 - 30 -
1 (5) In negotiating user fees under this section, the 2 parties shall establish fees that are the same for persons 3 using the qualifying transportation facility under like 4 conditions, except as required by agreement between the 5 parties to preserve capacity and prevent congestion on the 6 qualifying transportation facility. 7 (6) The execution of the comprehensive agreement or any 8 amendment to the comprehensive agreement shall constitute 9 conclusive evidence that the user fees provided in the 10 comprehensive agreement comply with this part. 11 (7) User fees established in the comprehensive agreement 12 as a source of revenue may be in addition to or in lieu of 13 service payments. 14 (c) Grants and loans.--In the comprehensive agreement, the 15 responsible public entity or the affected public entity may 16 agree to make grants or loans to the private entity for the 17 development or operation of the qualifying transportation 18 facility from amounts received from the Federal Government or 19 any of its agencies or instrumentalities. 20 (d) Additional provisions.--The following shall apply: 21 (1) The comprehensive agreement shall incorporate the 22 duties of the private entity under this part and may contain 23 other terms and conditions as the responsible public entity 24 or the affected public entity determines serve the public 25 purpose of this part. 26 (2) The comprehensive agreement may contain provisions 27 under which the responsible public entity or the affected 28 public entity agrees to provide notice of default and cure 29 rights for the benefit of the private entity and the persons 30 specified in the comprehensive agreement as providing 20060H3075B4908 - 31 -
1 financing for the qualifying transportation facility. 2 (3) The comprehensive agreement may contain other lawful 3 terms and conditions to which the private entity and the 4 responsible public entity or the affected public entity 5 mutually agree, including provisions regarding unavoidable 6 delays or provisions providing for a loan of public funds for 7 the development or operation of one or more qualifying 8 transportation facilities. 9 (e) Excess earnings.--The comprehensive agreement shall 10 provide for the distribution of any earnings in excess of the 11 maximum rate of return as negotiated in the comprehensive 12 agreement. Excess earnings may be distributed to the fund 13 established under section 9218 (relating to Public-Private 14 Transportation Partnership Fund) or to the private entity for 15 debt reduction. 16 (f) Amendment.--Any changes in the terms of the 17 comprehensive agreement as may be agreed upon by the parties 18 shall be added to the comprehensive agreement by written 19 amendment. 20 (g) Multiple private entities.--Notwithstanding any other 21 provision of this part, the responsible public entity or the 22 affected public entity may enter into a comprehensive agreement 23 with multiple private entities if the responsible public entity 24 or the affected public entity determines in writing that it is 25 in the public interest to do so. The written determination may 26 not take effect until a copy is provided to the transportation 27 commission and is published as a notice in the Pennsylvania 28 Bulletin. 29 (h) Phased development and operation.--The comprehensive 30 agreement may provide for the development or operation of phases 20060H3075B4908 - 32 -
1 or segments of the qualifying transportation facility. 2 § 9209. Multiple affected public entities. 3 (a) Private entity proposals.--If a private entity submits a 4 proposal pursuant to section 9203(a) (relating to approval) to 5 develop or operate a qualifying transportation facility that may 6 require approval by the responsible public entity and more than 7 one affected public entity, representatives of each of the 8 affected public entities shall convene and determine which 9 affected public entity shall serve as the coordinating affected 10 public entity. The determination shall occur within ten days of 11 the receipt of the summary of the proposal by the respective 12 affected public entities. If the affected public entities cannot 13 reach agreement on which affected public entity will serve as 14 the coordinating affected public entity within the allotted ten- 15 day period, the responsible public entity shall designate one of 16 the affected public entities to serve as the coordinating 17 affected public entity. 18 (b) Comments and review.--The coordinating affected public 19 entity shall be subject to the requirements of section 20 9203(a)(3) for completion of its review and submission of its 21 comments and recommendations, except that the coordinating 22 affected public entity may submit a written request to the 23 responsible public entity requesting approval of an extension of 24 up to 20 days for completion of its review and submission of its 25 recommendations. If the coordinating affected public entity 26 fails to provide its comments and recommendations to the 27 responsible public entity within the 45-day period specified in 28 section 9203(a)(3) or any extension of that period granted by 29 the responsible public entity, all affected public entities on 30 whose behalf the coordinating affected public entity was 20060H3075B4908 - 33 -
1 designated to act shall be deemed to have approved the proposal 2 and, if the responsible public entity approves the proposal, 3 shall cooperate fully in completion, execution and 4 implementation of any interim agreement or comprehensive 5 agreement related to the proposal. 6 (c) Request for proposals.--If a request for proposals is 7 issued pursuant to section 9203(b) and the issuance includes 8 more than one affected public entity, the responsible public 9 entity shall request that representatives of each of the 10 affected public entities convene and determine which affected 11 public entity shall serve as the coordinating affected public 12 entity. The determination of which affected public entity shall 13 serve as the coordinating affected public entity shall be made 14 prior to issuance of a request for proposals. If the affected 15 public entities cannot reach agreement on the designation of a 16 coordinating affected public entity within ten days of receipt 17 of a written request from the responsible public entity to 18 convene and make a designation, the responsible public entity 19 shall designate one of the affected public entities to serve as 20 the coordinating affected public entity. 21 (d) Action following determination.--Once a determination 22 has been made in accordance with subsection (a), (b) or (c), the 23 responsible public entity, the coordinating affected public 24 entity and the private entity shall proceed in accordance with 25 this part. 26 § 9210. Federal, Commonwealth and local assistance. 27 (a) Obtaining assistance.--The responsible public entity and 28 the affected public entity may take any action to obtain 29 Federal, Commonwealth or local assistance for a qualifying 30 transportation facility that serves the public purpose of this 20060H3075B4908 - 34 -
1 part and may enter into any contracts required to receive 2 Federal assistance. Funds received from the Commonwealth, other 3 than grant or loan funds provided pursuant to statute, or from 4 the Federal Government or a Federal agency or instrumentality 5 shall be subject to appropriation by the General Assembly. The 6 responsible public entity and the affected public entity may 7 determine that it serves the public purpose of this part for all 8 or any portion of the costs of a qualifying transportation 9 facility to be paid, directly or indirectly, from the proceeds 10 of a grant or loan made by the Federal, Commonwealth or local 11 government or a government agency or instrumentality. 12 (b) Use of grants and loans.--The responsible public entity 13 and the affected public entity may agree to make grants or loans 14 for the development or operation of the qualifying 15 transportation facility from amounts received from the Federal, 16 Commonwealth or local government or a government agency or 17 instrumentality. 18 (c) Pledge of Commonwealth full faith and credit.--Nothing 19 in this part or in an interim or comprehensive agreement entered 20 into pursuant to this part shall be deemed to enlarge, diminish 21 or affect the authority otherwise possessed by the responsible 22 public entity and the affected public entity to take action that 23 would impact the debt capacity of the Commonwealth or the 24 affected jurisdictions, except that in no event shall any debt 25 financing for a qualifying transportation facility pledge the 26 full faith and credit of the Commonwealth for the payment of 27 debt and that any debt incurred for financing of a qualifying 28 transportation facility shall be payable solely from one or a 29 combination of: 30 (1) revenue for the qualifying transportation facility; 20060H3075B4908 - 35 -
1 (2) a pledge of, security interest in or lien on grants, 2 loans or other funds received by or provided by the private 3 entity, the affected public entity or an affected 4 jurisdiction; or 5 (3) a pledge of, security interest in or lien on real, 6 personal or mixed property owned by the private entity. 7 § 9211. Financing. 8 (a) General rule.--Except as provided in section 9210(c) 9 (relating to Federal, Commonwealth and local assistance), any 10 financing of a qualifying transportation facility may be in 11 amounts and upon terms and conditions as determined by the 12 parties to the interim or comprehensive agreement. 13 (b) Exception.--Without limiting the generality of 14 subsection (a), the private entity, the responsible public 15 entity, the affected public entity and an affected jurisdiction 16 may propose to utilize any and all money that may be available 17 to them and may, to the fullest extent permitted by applicable 18 law and subject to the limitations of section 9210(c), issue 19 debt, equity or other securities or obligations, enter into 20 leases and grant and loan agreements, access any designated 21 transportation trust funds, borrow or accept grants from any 22 Commonwealth program and secure any financing with a pledge of, 23 security interest in or lien on, any or all of the revenue from 24 the qualifying transportation facility, money from any grants, 25 loans or other funds received by or provided by the private 26 entity, the affected public entity or an affected jurisdiction, 27 and any real, personal or mixed property owned by the private 28 entity. 29 § 9212. Material default; remedies. 30 (a) Remedies.--Upon the occurrence and during the 20060H3075B4908 - 36 -
1 continuation of material default, the responsible public entity 2 or the affected public entity may exercise the following 3 remedies: 4 (1) The responsible public entity or the affected public 5 entity may elect to take over the qualifying transportation 6 facility and shall succeed to all of the right, title and 7 interest in the qualifying transportation facility, subject 8 to liens on revenue previously granted by the private entity 9 to a person providing financing for the transportation 10 facility. 11 (2) The responsible public entity or the affected public 12 entity may terminate the interim or comprehensive agreement 13 and exercise any other rights and remedies which may be 14 available to it at law or in equity. 15 (3) The responsible public entity or the affected public 16 entity may make or cause to be made any appropriate claims 17 under the performance or payment bonds required by section 18 9208 (relating to comprehensive agreement). 19 (b) Exercise of remedies.--If the responsible public entity 20 or the affected public entity elects to take over a qualifying 21 transportation facility under subsection (a), the responsible 22 public entity or the affected public entity may develop or 23 operate the qualifying transportation facility, impose user fees 24 for the use of the facility and comply with service contracts as 25 if the responsible public entity or the affected public entity 26 were the private entity. Revenue subject to a lien shall be 27 collected for the benefit of, and paid to, secured parties as 28 their interests may appear and to the extent necessary to 29 satisfy the private entity's obligations to the secured parties, 30 including the maintenance of reserves, and the liens shall be 20060H3075B4908 - 37 -
1 correspondingly reduced and, when paid off, released. Before any 2 payments to, or for the benefit of, secured parties, the 3 responsible public entity or the affected public entity may use 4 revenue to pay current operation and maintenance costs of the 5 qualifying transportation facility or facilities, including 6 compensation to the responsible public entity or the affected 7 public entity for its services in operating and maintaining the 8 qualifying transportation facility. Remaining revenue after all 9 payments for operation and maintenance of the qualifying 10 transportation facility and all payments to or for the benefit 11 of secured parties shall be paid to the private entity, subject 12 to the negotiated maximum rate of return. The right to receive 13 the payment shall be considered just compensation for the 14 qualifying transportation facility. The full faith and credit of 15 the Commonwealth shall not be pledged to secure any financing of 16 the private entity by the election to take over the qualifying 17 transportation facility. Assumption of operation of the 18 qualifying transportation facility shall not obligate the 19 responsible public entity or the affected public entity to pay 20 any obligation of the private entity from sources other than 21 revenue. 22 § 9213. Eminent domain. 23 (a) Exercise of eminent domain.--At the request of the 24 private entity, the responsible public entity and the affected 25 public entity may exercise the right of eminent domain for the 26 purpose of acquiring any lands or estates or interests therein 27 to the extent permitted by laws governing eminent domain and to 28 the extent that the responsible public entity or the affected 29 public entity finds that the action serves the public purpose of 30 this part. Any amounts to be paid in any such eminent domain 20060H3075B4908 - 38 -
1 proceeding shall be paid by the private entity. 2 (b) Exercise against qualifying transportation facility.-- 3 Except as provided in subsection (a), until the responsible 4 public entity or the affected public entity, after notice to the 5 private entity and the secured parties as may appear in the 6 private entity's records and an opportunity for hearing, has 7 obtained a final declaratory judgment that a material default 8 has occurred and is continuing, the power of eminent domain may 9 not be exercised against a qualifying transportation facility. 10 (c) Exercise following declaratory judgment.--After the 11 entry of a final declaratory judgment, the responsible public 12 entity or the affected public entity having the power of eminent 13 domain under the laws of this Commonwealth may exercise the 14 power of eminent domain, in lieu of or at any time after taking 15 over the qualifying transportation facility pursuant to section 16 9212(a)(1) (relating to material default; remedies), in order to 17 acquire the qualifying transportation facility or facilities. 18 Nothing in this part shall be construed to limit the exercise of 19 the power of eminent domain by the responsible public entity or 20 the affected public entity against a qualifying transportation 21 facility after the entry of a final declaratory judgment 22 pursuant to subsection (b). Any person that has provided 23 financing for the qualifying transportation facility and the 24 private entity, to the extent of its capital investment, may 25 participate in the eminent domain proceedings with the standing 26 of a property owner. 27 § 9214. Public utility crossings. 28 A private entity and each public utility, railroad and cable 29 television provider whose facilities are to be crossed or 30 affected shall cooperate fully with each other in planning and 20060H3075B4908 - 39 -
1 arranging the manner of the crossing or relocation of the 2 facilities. Any entity possessing the power of eminent domain is 3 expressly granted authority to utilize such powers to the extent 4 permitted by laws governing eminent domain in connection with 5 the moving or relocation of facilities to be crossed by the 6 qualifying transportation facility or that must be relocated to 7 the extent that such moving or relocation is made necessary or 8 desirable by construction of or improvements to the qualifying 9 transportation facility, which shall be construed to include 10 construction of or improvements to temporary facilities for the 11 purpose of providing service during the period of construction 12 or improvement. If the private entity and any public utility, 13 railroad and cable television provider are unable to agree upon 14 a plan for a crossing or relocation, the commission may 15 determine the manner in which the crossing or relocation shall 16 be accomplished and shall determine any damages due as a result 17 of the crossing or relocation. The commission may employ expert 18 engineers to examine the location and plans for the crossing or 19 relocation, hear objections, consider modifications and make 20 recommendations to the commission, in which case the cost of the 21 expert shall be borne by the private entity. Any amount to be 22 paid for a crossing or for construction of, moving or relocating 23 facilities shall be paid by the private entity or any other 24 person who is contractually responsible to make the payment 25 under an interim or comprehensive agreement or any other 26 contract, license or permit. The commission shall make a 27 determination within 90 days of notification by the private 28 entity that the qualifying transportation facility will cross 29 public utilities subject to the commission's jurisdiction. 30 § 9215. Police powers; violations of law. 20060H3075B4908 - 40 -
1 (a) Powers and jurisdiction.--All law enforcement officers 2 of the Commonwealth and each affected jurisdiction shall have 3 the same powers and jurisdiction within the limits of a 4 qualifying transportation facility as they have in their 5 respective areas of jurisdiction, and law enforcement officers 6 shall have access to the qualifying transportation facility at 7 any time for the purpose of exercising their law enforcement 8 powers and jurisdiction. The grant of authority in this 9 subsection does not extend to the private offices, buildings, 10 garages and other improvements of the private entity to any 11 greater degree than the police power extends to any other 12 private buildings and improvements. 13 (b) Enforcement of traffic laws.--To the extent the 14 qualifying transportation facility is a highway, bridge, tunnel, 15 overpass or similar transportation facility for motor vehicles, 16 the traffic and motor vehicle laws of this Commonwealth or, if 17 applicable, any local jurisdiction shall be the same as those 18 applying to conduct on similar transportation facilities in this 19 Commonwealth or the local jurisdiction. Punishment for offenses 20 shall be as prescribed by law for conduct occurring on similar 21 transportation facilities in this Commonwealth or the local 22 jurisdiction. 23 (c) Payment of costs.--A private entity shall be responsible 24 for the payment of all costs associated with the provision of 25 law enforcement services pursuant to subsections (a) and (b) 26 within the limits of a qualifying transportation facility. 27 (d) Imposition, collection and disposition of fines.--Fines 28 imposed by law enforcement officers for violations occurring 29 within the limits of a qualifying transportation facility shall 30 be imposed, collected, distributed and governed as otherwise 20060H3075B4908 - 41 -
1 provided by applicable law. 2 § 9216. Transfer of assets. 3 The responsible public entity or the affected public entity 4 shall terminate the private entity's authority and duties under 5 this part on the date set forth in the interim or comprehensive 6 agreement. Upon termination, the authority and duties of the 7 private entity under this part shall cease, and all property, 8 real, personal and mixed, constituting the qualifying 9 transportation facility shall be transferred to the responsible 10 public entity or the affected public entity, if any. 11 § 9217. Procurement. 12 (a) General rule.--The Procurement Code shall not apply to 13 this part or to development, operation, construction, 14 improvement, alteration or maintenance of a qualifying 15 transportation facility by a private entity. Contracts shall be 16 awarded and interim and comprehensive agreements shall be 17 entered into through use of a competitive process or by private 18 negotiation as provided in regulations promulgated pursuant to 19 section 9203(f) (relating to approval). Responsible public 20 entities and affected public entities shall not be required to 21 select the proposal with the lowest price offer or the highest 22 price offer, but may consider price as one factor in evaluating 23 the proposals received. Other factors that may be considered 24 include: 25 (1) proposed cost of the qualifying transportation 26 facility; 27 (2) general reputation, qualifications, industry 28 experience and financial capacity of the private entity; 29 (3) proposed design, operation and feasibility of the 30 qualifying transportation facility; 20060H3075B4908 - 42 -
1 (4) eligibility of the qualifying transportation 2 facility for priority selection, review and documentation 3 time lines under the regulations promulgated pursuant to 4 section 9203(f); 5 (5) local citizen and public entity comments; 6 (6) benefits to the public; 7 (7) the private entity's compliance with a minority 8 business enterprise participation plan or good faith effort 9 to comply with the goals of a plan; 10 (8) the private entity's plans to employ local 11 contractors and residents; 12 (9) the safety record of the private entity; 13 (10) the ability of the qualifying transportation 14 facility to address the needs of Commonwealth, regional or 15 local transportation by improving safety, reducing 16 congestion, abating environmental pollution, advancing energy 17 efficiency or conservation, improving homeland security, 18 increasing capacity or enhancing economic efficiency; and 19 (11) other criteria that the responsible public entity 20 and the affected public entity deem appropriate. 21 (b) Specific exemption.--In no event shall a private entity, 22 a responsible public entity or an affected public entity be 23 subject to requirements of the act of May 1, 1913 (P.L.155, 24 No.104), entitled "An act regulating the letting of certain 25 contracts for the erection, construction, and alteration of 26 public buildings," with regard to a qualifying transportation 27 facility which is the subject of an interim agreement or a 28 comprehensive agreement. 29 § 9218. Public-Private Transportation Partnership Fund. 30 (a) Establishment.--There is established within the State 20060H3075B4908 - 43 -
1 Treasury a special fund to be known as the Public-Private 2 Transportation Partnership Fund for the purposes enumerated in 3 this section. Interest and investment earnings on money in the 4 fund shall be retained in the fund. Money in the fund shall be 5 used for the purposes enumerated in subsection (c). Money in the 6 fund shall not lapse and is appropriated upon approval of the 7 Governor for the purposes enumerated in subsection (c). 8 (b) Deposits to fund.--Money to be deposited in the fund 9 includes: 10 (1) excess earnings as provided in section 9208(e) 11 (relating to comprehensive agreement); 12 (2) monetary damages received by the responsible public 13 entity and the affected public entity for failure by the 14 private entity to comply with the terms of an interim 15 agreement or a comprehensive agreement; 16 (3) payments made to the responsible public entity and 17 the affected public entity from any performance or payment 18 bond; and 19 (4) any other money received by the responsible public 20 entity and the affected public entity and earmarked for 21 deposit into the fund pursuant to the terms of an interim 22 agreement or a comprehensive agreement. 23 (c) Authorized uses.--Money in the fund shall be allocated 24 by majority vote of the transportation commission and may, upon 25 allocation, be used: 26 (1) for maintenance, repair, construction, 27 reconstruction and operation of transportation facilities 28 available for use by the public and for which no toll, fee or 29 other charge is imposed for public use; or 30 (2) by an affected public entity for transportation- 20060H3075B4908 - 44 -
1 related purposes under a written agreement with the 2 responsible public entity as approved by majority vote of the 3 transportation commission. 4 (d) Restrictions on transfers from fund.--Money in the fund 5 shall not be transferred to the General Fund or any other fund 6 or used for any purpose not specifically authorized in 7 subsection (c) unless the transfer or use is by statute approved 8 by a two-thirds vote of the General Assembly. 9 Section 2. All acts and parts of acts are repealed to the 10 extent they are inconsistent with the provisions of 74 Pa.C.S. 11 Pt. V. 12 Section 3. This act shall take effect as follows: 13 (1) The following provisions shall take effect 14 immediately: 15 (i) The addition of 74 Pa.C.S. § 9203(f) and (k). 16 (ii) This section. 17 (2) The remainder of this act shall take effect on the 18 earlier of: 19 (i) 120 days; or 20 (ii) the date of publication of draft interim 21 regulations under 74 Pa.C.S. § 9203(f). J16L74RLE/20060H3075B4908 - 45 -