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
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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.
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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
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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,
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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
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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
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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
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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
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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
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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
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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,
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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
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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.
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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.
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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.
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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.
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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
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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-
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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).
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