PRIOR PRINTER'S NO. 1547 PRINTER'S NO. 2145
No. 1158 Session of 2007
INTRODUCED BY MADIGAN, STOUT, SCARNATI, PILEGGI, RAFFERTY, ERICKSON, D. WHITE, M. WHITE, WAUGH, ARMSTRONG, WASHINGTON, RHOADES, WONDERLING, REGOLA, CORMAN, BOSCOLA, C. WILLIAMS AND PIPPY, NOVEMBER 13, 2007
SENATOR MADIGAN, TRANSPORTATION, AS AMENDED, JUNE 10, 2008
AN ACT 1 Amending Title 74 (Transportation) of the Pennsylvania 2 Consolidated Statutes, providing for transportation 3 infrastructure partnership and development. 4 The General Assembly of the Commonwealth of Pennsylvania 5 hereby enacts as follows: 6 Section 1. Title 74 of the Pennsylvania Consolidated 7 Statutes is amended by adding a part to read: 8 PART V 9 TRANSPORTATION INFRASTRUCTURE 10 Chapter 11 91. Partnership and Development 12 CHAPTER 91 13 PARTNERSHIP AND DEVELOPMENT 14 Sec. 15 9101. Scope of chapter. 16 9102. Findings and declaration of policy. 17 9103. Definitions.
1 9104. Transportation development agreements. 2 9105. Proposals for transportation development agreements. 3 9106. Review and selection of proposals. 4 9107. Affected local jurisdictions. 5 9108. Terms and conditions of transportation development 6 agreements. 7 9109. Material default; remedies. 8 9110. Financing qualifying transportation projects. 9 9111. Power of eminent domain. 10 9112. Police powers; motor vehicle laws. 11 9113. Taxation of authorized development entity or entities. 12 9114. Pennsylvania Transportation Development Trust Fund. 13 9115. Regional mobility account, etc. 14 9116. Regional mobility authority. 15 9117. Turnpike lease restricted. 16 § 9101. Scope of chapter. 17 This chapter relates to transportation infrastructure 18 partnership and development. 19 § 9102. Findings and declaration of policy. 20 The General Assembly finds, determines and declares as 21 follows: 22 (1) There is urgent public need to reduce congestion, 23 increase capacity, improve safety and enhance economic 24 efficiency of transportation facilities throughout this 25 Commonwealth. 26 (2) The Commonwealth has limited resources to fund the 27 maintenance and expansion of its transportation facilities. 28 (3) To ensure that the needs of the public are 29 adequately addressed, alternative funding mechanisms and 30 strategies must be developed to supplement existing public 20070S1158B2145 - 2 -
1 revenue sources. 2 (4) Public entities should be authorized to enter into 3 transportation development agreements with private entities, 4 other public entities or partnerships of such entities in 5 order to accelerate the cost-effective delivery of improved 6 transportation facilities throughout this Commonwealth. 7 § 9103. Definitions. 8 The following words and phrases when used in this chapter 9 shall have the meanings given to them in this section unless the 10 context clearly indicates otherwise: 11 "Affected local jurisdiction." A county, city, township, 12 borough, incorporated town, local planning organization, 13 regional planning organization, metropolitan transportation 14 authority or regional mobility authority within whose 15 jurisdictional boundaries all or a portion of a qualifying 16 transportation project is located, or which is or will be 17 directly affected by the project. 18 "Approving body." In the case of a proposal subject to State 19 Transportation Commission review and approval under section 20 9104(a) (relating to transportation development agreements), the 21 State Transportation Commission and the proprietary public 22 entity. In the case of a proposal not subject to State 23 Transportation Commission approval under section 9104(a), the 24 proprietary public entity. 25 "Authorized development entity." A private entity, another 26 public entity or any partnership of the entities authorized by 27 the approving body or bodies to assume responsibility for the 28 use of or control, in whole or in part, of a transportation 29 facility from a proprietary public entity. 30 "Department." The Department of Transportation of the 20070S1158B2145 - 3 -
1 Commonwealth. 2 "Design build." The mode of infrastructure development 3 whereby the contractor is responsible for both the design and 4 construction of a qualifying transportation project. 5 "Develop" or "development." The term includes, but is not 6 limited to, the acts or functions of planning, designing, 7 financing, constructing, purchasing, installing, adding, 8 extending or other activities relating to the improvement of a 9 transportation facility. 10 "Fund." The Pennsylvania Transportation Development Trust 11 Fund established under section 9114 (relating to Pennsylvania 12 Transportation Development Trust Fund). 13 "Intergovernmental Cooperation Act." 53 Pa.C.S. Pt. III 14 Subpt. D (relating to area government and intergovernmental 15 cooperation). 16 "INTERIM AGREEMENT." AN AGREEMENT, INCLUDING A MEMORANDUM OF <-- 17 UNDERSTANDING OR BINDING PRELIMINARY AGREEMENT, BETWEEN A 18 PRIVATE ENTITY AND THE RESPONSIBLE PUBLIC ENTITY OR THE AFFECTED 19 PUBLIC ENTITY UNDER SECTION 9108 (RELATING TO TERMS AND 20 CONDITIONS OF TRANSPORTATION DEVELOPMENT AGREEMENTS) WHICH 21 PROVIDES FOR COMPLETION OF STUDIES, INTERIM COMPENSATION RATES 22 AND ANY OTHER ACTIVITIES TO ADVANCE THE DEVELOPMENT OR OPERATION 23 OF A QUALIFYING TRANSPORTATION FACILITY. 24 "Local governmental entity." A unit of government with less 25 than Statewide jurisdiction, or any officially designated public 26 agency or authority of the unit of government, that has the 27 responsibility for planning, construction, operation or 28 maintenance of or jurisdiction over a transportation facility. 29 The term includes, but is not limited to, a county, city, 30 township, borough, incorporated town, municipal authority, local 20070S1158B2145 - 4 -
1 or regional planning organization, metropolitan transportation 2 authority, regional mobility authority or other political 3 subdivision or governmental entity created with less than 4 Statewide jurisdiction, or any combination of the entities 5 acting pursuant to 53 Pa.C.S. Pt. III Subpt. D (relating to area 6 government and intergovernmental cooperation) or a similar 7 statute. 8 "Local planning organization." An entity whose jurisdiction 9 does not exceed the county in which it is located, and which is 10 charged with transportation planning responsibilities in the 11 area in which a qualifying transportation project is located. 12 "Material default." Failure of an authorized development 13 entity or entities to perform any duties under a transportation 14 development agreement which jeopardizes delivery of adequate 15 service to the public and remains unsatisfied after a reasonable 16 period of time and after the authorized development entity or 17 entities has received written notice from the approving body or 18 bodies of the failure. 19 "Maximum rate of return." The negotiated maximum rate of 20 return a private entity can receive as an authorized development 21 entity from the operating and nonoperating revenues of a 22 transportation facility pursuant to a transportation development 23 agreement, including any incidental receipts and other income 24 derived from the transportation facility covered by the 25 agreement. 26 "Municipality Authorities Act." 53 Pa.C.S. Ch. 56 (relating 27 to municipal authorities). 28 "Operate" or "operation." Includes, but is not limited to, 29 the acts or functions of managing, controlling, maintaining, 30 repairing, conducting financial proceedings and other day-to-day 20070S1158B2145 - 5 -
1 activities of an enterprise. 2 "Partnership." An organization structured as a partnership 3 or joint venture and comprised of any combination of private 4 entities or public entities or both. 5 "Private entity." A natural person, sole proprietorship, 6 corporation, company, association, syndicate, partnership, 7 limited liability company, business trust, public benefit 8 corporation, nonprofit entity or any other entity not 9 specifically listed in this definition entering into a 10 transportation development agreement with a proprietary public 11 entity for a qualifying transportation project. 12 "Proprietary public entity." The public entity that owns the 13 proposed or existing transportation facility subject to a 14 transportation development agreement. 15 "Public entity." The Commonwealth or any department, 16 commission, authority or agency thereof or any local government 17 entity. The term shall specifically include the State 18 Transportation Commission, the Department of Transportation and 19 the Pennsylvania Turnpike Commission. For purposes of this 20 chapter, the term does not include the General Assembly and its 21 members, officers or agencies or any court or other office or 22 agency of the Pennsylvania judicial system. 23 "Qualifying transportation project." A proposed or existing 24 undertaking by an authorized development entity or entities for 25 the development or operation of a transportation facility 26 totally or partially within this Commonwealth. 27 "Regional mobility account." A separate account of the 28 Commonwealth within the Pennsylvania Transportation Development 29 Trust Fund, under the custody of the State Treasurer, into which 30 transportation development revenues or other funds, including 20070S1158B2145 - 6 -
1 surcharges imposed by the Commonwealth, may be deposited for 2 operation or development of regional transportation facilities. 3 "Regional mobility authority." An authority or similar local 4 government entity created pursuant to 53 Pa.C.S. Pt. III Subpt. 5 D (relating to area government and intergovernmental 6 cooperation), 53 Pa.C.S. Ch. 56 (relating to municipal 7 authorities) or other Commonwealth statute and recognized under 8 this chapter and regulations issued by the State Transportation 9 Commission for the purpose of promoting regional transportation 10 development. 11 "Regional planning organization." An entity with multicounty 12 jurisdiction and designated under Federal or State law with 13 transportation planning responsibilities in the region in which 14 a qualifying transportation project is located. 15 "Request for proposals." All materials and documents 16 prepared by or on behalf of a public entity to solicit proposals 17 from public or private entities to enter into a transportation 18 development agreement for a qualifying transportation project as 19 set forth in this chapter. 20 "Right-to-Know Law." The act of June 21, 1957 (P.L.390, 21 No.212), referred to as the Right-to-Know Law. 22 "Separations Act." The act of May 1, 1913 (P.L.155, No.104), 23 entitled "An act regulating the letting of certain contracts for 24 the erection, construction, and alteration of public buildings." 25 "State Adverse Interest Act." The act of July 19, 1957 26 (P.L.1017, No.451), known as the State Adverse Interest Act. 27 "State advisor." An entity as defined in section 2 of the 28 act of July 19, 1957 (P.L.1017, No.451), known as the State 29 Adverse Interest Act. 30 "State consultant." An entity as defined in section 2 of the 20070S1158B2145 - 7 -
1 act of July 19, 1957 (P.L.1017, No.451), known as the State 2 Adverse Interest Act. 3 "Transportation Commission." The State Transportation 4 Commission of the Commonwealth established under section 468 of 5 the act of April 9, 1929 (P.L.177, No.175), known as The 6 Administrative Code of 1929. 7 "Transportation development agreement." A lease, license, 8 franchise, easement, concession or other binding agreement 9 transferring rights for the use or control, in whole or in part, 10 of a transportation facility by a proprietary public entity to 11 an authorized development entity or entities for a definite term 12 during which the authorized development entity or entities will 13 provide transportation-related services, including, but not 14 limited to, any one or more of the following: operations and 15 maintenance, revenue collection, toll collection enforcement, 16 design, construction, development and other activities with 17 respect to existing or new transportation facilities that 18 enhance throughput, reduce congestion, improve safety or 19 otherwise manage or improve a transportation facility in return 20 for the right to receive all or a portion of the revenues of the 21 transportation facility. 22 "Transportation development revenues." Money generated from 23 or received in support of the development or operation of a 24 qualifying transportation project, including, but not limited 25 to, user fees, service payments, surcharges, lease payments, 26 governmental appropriations or grants, proceeds of debt or 27 equity issuance, income from operations and earnings on 28 investments. 29 "Transportation facility." A road, bridge, tunnel, overpass, 30 ferry, busway, guideway, other public transportation facility, 20070S1158B2145 - 8 -
1 vehicle parking facility, port facility, multimodal 2 transportation facility, airport, station, hub, terminal or 3 similar facility used for the transportation of persons, animals 4 or goods, together with any buildings, structures, parking 5 areas, appurtenances and other property needed to operate the 6 facility. The term includes any improvements or substantial 7 enhancements thereto. 8 "User fees." Rates, tolls, fees or other charges imposed or 9 collected by an authorized development entity or entities for 10 use of all or a portion of a transportation facility pursuant to 11 a transportation development agreement. 12 § 9104. Transportation development agreements. 13 (a) Authorization and approval.--Subject to the provisions 14 of this chapter and the approval of its governing body, a 15 proprietary public entity has full authority to enter into a 16 transportation development agreement with an authorized 17 development entity or entities governing the development or 18 operation of all or any portion of a transportation facility, 19 except that, if the transportation development agreement results 20 in the proprietary public entity disposing of or relinquishing 21 its control of a transportation facility or pertains to a 22 transportation facility that receives Commonwealth funding, then 23 the transportation development agreement must also be reviewed 24 and approved by the Transportation Commission before the 25 proprietary public entity can enter into the agreement. 26 (b) Project activities authorized.--Subject to the 27 requirements of this chapter, a transportation development 28 agreement may provide for the authorized development entity or 29 entities to be partially or entirely responsible for any one or 30 more of the following activities: planning, design, development, 20070S1158B2145 - 9 -
1 construction, reconstruction, improvement, extension or 2 expansion, operation, repair, maintenance, management, revenue 3 collection or financing of a transportation facility. 4 (c) Repositories for materials.--The Transportation 5 Commission shall serve as the primary repository for all 6 materials relating to the review and approval of transportation 7 development agreements that involve transportation facilities 8 that receive funding from the Commonwealth or result in the 9 proprietary public entity disposing of or relinquishing its 10 control over the transportation facilities. Otherwise, the 11 proprietary public entity shall serve as the repository for 12 materials relating to the review of transportation development 13 agreements which do not require the approval of the 14 Transportation Commission. 15 § 9105. Proposals for transportation development agreements. 16 (a) Solicited proposals.--Before entering into a 17 transportation development agreement, the proprietary public 18 entity must issue a request for proposals as set forth in this 19 subsection. If the proposal being requested is subject to 20 Transportation Commission review and approval pursuant to 21 section 9104(a) (relating to transportation development 22 agreements), the request for proposals must be authorized and 23 issued jointly by the proprietary public entity and the 24 Transportation Commission. Any request for proposals shall use a 25 competitive procurement process that selects the authorized 26 development entity whose proposal provides the best value for 27 the proprietary public entity and for the Commonwealth. Notice 28 of any such request for proposals shall be published in the 29 Pennsylvania Bulletin and posted or published in whatever other 30 medium is regularly used by the proprietary public entity for 20070S1158B2145 - 10 -
1 procurement matters. A request for proposals issued under this 2 subsection shall include the following: 3 (1) The minimum scope and content of the information to 4 be provided by the respondent. 5 (2) The factors or criteria that will be used by the 6 approving body or bodies in evaluating the proposals and the 7 deadline for submitting the proposal. 8 (3) A statement concerning the scope and location of the 9 proposed project. 10 (4) A statement concerning any other information that 11 the approving body or bodies may consider in evaluating the 12 proposals. 13 (5) A statement indicating that if clarification is 14 needed in the evaluation of the proposals, the proprietary 15 public entity, together with the Transportation Commission if 16 its approval is required, may negotiate specific provisions 17 with the prospective authorized development entity that 18 submitted the proposal pursuant to the request for proposals. 19 (b) Unsolicited proposals.--A proprietary public entity may 20 entertain and accept for review unsolicited proposals submitted 21 by public or private entities for a qualifying transportation 22 project. To the extent a proposal is subject to Transportation 23 Commission review and approval pursuant to section 9104(a), the 24 proposal shall also be submitted to the Transportation 25 Commission. For proposals not subject to Transportation 26 Commission approval, proprietary public entities may establish 27 rules and procedures for accepting unsolicited proposals and may 28 set forth the information required to be included in unsolicited 29 proposals submitted by public or private entities. The 30 Transportation Commission shall be responsible for establishing 20070S1158B2145 - 11 -
1 rules and procedures for unsolicited proposals subject to its 2 approval, which shall include a review and response period not 3 exceeding 135 days from receipt of the unsolicited proposal for 4 any proposal with an estimated cost of construction greater than 5 $50,000,000. If an unsolicited proposal is deemed to be in 6 compliance with the rules and procedures as established by the 7 appropriate approving body and if the public entity or entities 8 so desire to pursue the proposed qualifying transportation 9 project, the proprietary public entity, jointly with the 10 Transportation Commission if its approval is required, must 11 publish a request for and receive competing proposals in <-- 12 accordance with subsection (a). RESPONSES TO REQUESTS FOR <-- 13 PROPOSALS ISSUED IN RESPONSE TO THE FAVORABLE REVIEW OF A 14 PROPOSAL UNDER THIS SUBSECTION SHALL BE RETURNED TO THE 15 COMMISSION OR PROPRIETARY PUBLIC ENTITY WITHIN 60 DAYS. 16 (c) Discussions and negotiations with proposing entities.--A 17 proprietary public entity, and the Transportation Commission 18 where its approval is required, may conduct discussions and 19 negotiations with public or private entities which have 20 submitted solicited or unsolicited proposals for the purpose of 21 clarification to assure full understanding of the proposals or 22 the responsiveness of solicited proposals to solicitation 23 requirements. 24 (d) Design build development; Separations Act 25 inapplicable.--Notwithstanding any other provision of law to the 26 contrary: 27 (1) any proposal made pursuant to this chapter may 28 provide for the design build mode of infrastructure 29 development; and 30 (2) in no event shall an authorized development entity 20070S1158B2145 - 12 -
1 or entities be subject to the requirements of the Separations 2 Act in connection with a transportation development agreement 3 authorized pursuant to this chapter. 4 (e) Federal credit assistance.--The approving body or bodies 5 and affected local jurisdictions may apply for, execute or 6 endorse applications by prospective authorized development 7 entities to obtain Federal credit assistance for a qualifying 8 transportation project. 9 (f) Adverse interests of proposing private entity.-- 10 (1) Except as provided in paragraph (2), a private 11 entity which is a State advisor or State consultant for the 12 Transportation Commission, the department, the Pennsylvania 13 Turnpike Commission or any other proprietary public entity 14 shall not be deemed to be in violation of the State Adverse 15 Interest Act if the private entity: 16 (i) prepares or submits a proposal or a response to 17 a request for proposals under this section; 18 (ii) negotiates or enters into a transportation 19 development agreement; or 20 (iii) engages in other activities in furtherance of 21 the provisions or purposes of this chapter. 22 (2) A private entity which submits an unsolicited 23 proposal or a response to a request for proposals shall be 24 prohibited from providing advice to the Transportation 25 Commission, the department, the Pennsylvania Turnpike 26 Commission or a proprietary public entity on its proposal, 27 any competing proposal or a request for proposals for which 28 it has submitted a response. 29 (g) Fees.--The approving body or bodies may require that a 30 nonrefundable fee accompany any solicited or unsolicited 20070S1158B2145 - 13 -
1 proposal submitted pursuant to this section to cover all or part 2 of the costs of processing, reviewing and evaluating the 3 proposal. 4 (h) Confidentiality of records.--To encourage public and 5 private entities to submit proposals under subsections (a) and 6 (b), the following information shall be considered confidential, 7 and shall not be considered a public record subject to 8 disclosure, public inspection or copying under the Right-to-Know 9 Law, or any other act, until a final transportation development 10 agreement for a proposed qualifying transportation project is 11 entered into: 12 (1) All or part of a proposal, whether solicited or 13 unsolicited, submitted by a public or private entity or any 14 partnership of the entities for a proposed qualifying 15 transportation project, except information regarding the 16 scope, location and limits of the project and information 17 pertaining to a public or private entity's qualifications, 18 experience, technical competence and capability to develop 19 the project. 20 (2) Information and records created during any 21 discussions or negotiations arising from the process as 22 described in subsection (c). 23 (i) Disclosure of records.--Notwithstanding subsection (h), 24 after a transportation development agreement has been entered 25 into, the entire selected proposal shall be considered a public 26 record for purposes of disclosure under the Right-to-Know Law. 27 Promptly after a transportation development agreement has been 28 entered into, the approving body or bodies shall also make 29 available for inspection and copying by the public a summary of 30 the terms of the selected proposal and a written explanation of 20070S1158B2145 - 14 -
1 the basis upon which the selection was made. Proprietary 2 information contained in proposals not selected and records of 3 negotiations with private entities not selected shall continue 4 to be exempt from public disclosure. 5 § 9106. Review and selection of proposals. 6 (a) Timing of review.--For proposals subject to its 7 approval, the Transportation Commission, IN CONJUNCTION WITH THE <-- 8 DEPARTMENT, by published regulations shall promulgate procedures 9 and guidelines that establish the process for the review and 10 selection of a proposal submitted pursuant to section 9105(a) 11 and (b) (relating to proposals for transportation development 12 agreements). THE DEPARTMENT SHALL PUBLISH INTERIM GUIDELINES <-- 13 WITHIN SIX MONTHS OF THE EFFECTIVE DATE OF THIS SECTION AND 14 SHALL PUBLISH FINAL REGULATIONS WITHIN TWO YEARS OF THE 15 EFFECTIVE DATE OF THIS SECTION. The guidelines shall establish: 16 (1) a specific schedule for the timing of the review of 17 the proposals by the approving body or bodies designed with a 18 high priority placed upon a review schedule requiring less 19 than 135 days; 20 (2) a process for alteration of that schedule if the 21 approving body or bodies deem that changes are necessary 22 because of the scope or complexity of proposals received; and 23 (3) the type and amount of information that is necessary 24 for adequate review of proposals. A proprietary public entity 25 shall promulgate its own procedures and guidelines for the 26 review and selection of proposals which do not require 27 Transportation Commission approval. 28 (b) Asset valuation.--In evaluating any submitted proposal, 29 the approving body or bodies may rely on internal reports 30 prepared by staff familiar with the operation of similar 20070S1158B2145 - 15 -
1 transportation facilities or may engage the services of the 2 private consultants, engineers and other experts as the 3 approving body or bodies determine are necessary or desirable 4 for the purposes of performing the evaluations. As part of each 5 evaluation of any submitted proposal, the approving body or 6 bodies shall be required to obtain a financial and valuation 7 assessment with respect to the proposed qualifying 8 transportation project from a qualified independent advisor with 9 experience and expertise with similar transportation facilities. 10 (c) Factors for review and selection of proposals.--The 11 appropriate approving body or bodies may consider the following 12 factors in reviewing and selecting a proposal to enter into a 13 transportation development agreement: 14 (1) the ability of the qualifying transportation project 15 to improve safety, reduce congestion, increase capacity and 16 promote economic growth; 17 (2) the compatibility of the proposal with existing 18 local or regional land use plans or the commitment of local 19 communities to approve plans in preparation for the proposed 20 project; 21 (3) the proposed cost of and financial plan for the 22 qualifying transportation project; 23 (4) the general reputation, qualifications, industry 24 experience and financial capacity of the entity or entities 25 submitting the proposal; 26 (5) the proposed design, operation and feasibility of 27 the qualifying transportation project; 28 (6) comments from local citizens and affected local 29 jurisdictions; 30 (7) benefits to the public; 20070S1158B2145 - 16 -
1 (8) the safety record of the entity or entities 2 submitting the proposal; and 3 (9) other criteria that the approving body or bodies 4 deem appropriate. 5 § 9107. Affected local jurisdictions. 6 The Transportation Commission by published regulations shall 7 promulgate procedures and guidelines that establish a process in 8 which affected local jurisdictions receive notice of a proposed 9 qualifying transportation project and have an opportunity to 10 provide input regarding the project before a transportation 11 development agreement is executed. For proposed qualifying 12 transportation projects which do not require approval of the 13 Transportation Commission under section 9104(a) (relating to 14 transportation development agreements), the proprietary public 15 entity shall promulgate its own procedures and guidelines by 16 which affected local jurisdictions receive notice of a proposed 17 qualifying transportation project and have an opportunity to 18 provide input prior to the execution of a transportation 19 development agreement. 20 § 9108. Terms and conditions of transportation development 21 agreements. 22 (a) Proprietary public entity and authorized development 23 entity negotiations.--Except as otherwise expressly provided in 24 section 9105 (relating to proposals for transportation 25 development agreements) and this section, a proprietary public 26 entity may enter into a transportation development agreement 27 with an authorized development entity or entities without regard 28 to the provisions of 62 Pa.C.S. Pt. 1 (relating to Commonwealth 29 Procurement Code). The proprietary public entity and authorized 30 development entity or entities are expressly authorized to 20070S1158B2145 - 17 -
1 negotiate the provisions of a transportation development 2 agreement. 3 (A.1) INTERIM AGREEMENT.--PRIOR TO COMPLETION OF A <-- 4 TRANSPORTATION DEVELOPMENT AGREEMENT, A PROPRIETARY PUBLIC 5 ENTITY AND AN AUTHORIZED DEVELOPMENT ENTITY MAY NEGOTIATE AN 6 INTERIM AGREEMENT FOR THE PURPOSE OF FURTHER DEFINING PROJECT 7 PLANNING AND DEVELOPMENT, ADVANCE RIGHT-OF-WAY ACQUISITION, 8 DESIGN AND ENGINEERING, ENVIRONMENTAL ANALYSIS AND MITIGATION, 9 SURVEYING, CONDUCTING TRANSPORTATION AND REVENUE STUDIES AND 10 ASCERTAINING THE AVAILABILITY OF FINANCING FOR THE PROPOSED 11 QUALIFYING TRANSPORTATION FACILITY OR FACILITIES. THE INTERIM 12 AGREEMENT MAY ALSO ESTABLISH THE PROCESS AND TIMING OF THE 13 NEGOTIATION OF THE COMPREHENSIVE AGREEMENT AND ANY OTHER 14 PROVISIONS RELATED TO ANY ASPECT OF THE DEVELOPMENT OR OPERATION 15 OF A QUALIFYING TRANSPORTATION FACILITY THAT THE PARTIES MAY 16 DEEM APPROPRIATE. 17 (b) Required provisions.--A transportation development 18 agreement entered into under this chapter shall provide for the 19 following: 20 (1) a process by which the authorized development entity 21 or entities implements, sets and adjusts any user fees on any 22 transportation facility; 23 (2) the methodologies, indices or other factors for the 24 setting and adjusting of user fees; 25 (3) the original term of the transportation development 26 agreement, which may not exceed 50 years; 27 (4) dates for the beginning and completion of 28 construction of or improvements to the qualifying 29 transportation project; 30 (5) the transportation facility acquired or constructed 20070S1158B2145 - 18 -
1 pursuant to a transportation development agreement is public 2 property that is leased to the authorized development entity 3 and belongs to the proprietary public entity; 4 (6) that upon termination of the transportation 5 development agreement, the transportation facility must be in 6 a state of proper maintenance and repair and shall be 7 returned to the proprietary public entity in satisfactory 8 condition at no further cost to the public entity; 9 (7) maintenance of a policy or policies of liability 10 insurance, copies of which shall be filed with the 11 proprietary public entity accompanied by proofs of coverage, 12 or self insurance, each in form and amount satisfactory to 13 the proprietary public entity and reasonably sufficient to 14 insure coverage of tort liability to the public and employees 15 and to enable the continued operation of the transportation 16 facility; and 17 (8) that the authorized development entity shall comply 18 with the act of August 15, 1961 (P.L.987, No.442), known as 19 the Pennsylvania Prevailing Wage Act, and 62 Pa.C.S. § 107 20 (relating to reciprocal limitations). 21 § 9109. Material default; remedies. 22 (a) General rule.--Upon the occurrence and during the 23 continuation of a material default of a transportation 24 development agreement by an authorized development entity or 25 entities, the approving body or bodies may: 26 (1) Elect to take over the transportation facility which 27 is the subject of the transportation development agreement, 28 including the succession of all right, title and interest in 29 the transportation facility, subject to any liens on revenues 30 previously granted by the authorized development entity or 20070S1158B2145 - 19 -
1 entities. 2 (2) Terminate the transportation development agreement 3 and exercise any other rights and remedies that may be 4 available. 5 (b) Takeover.--In the event that the approving body or 6 bodies elect to take over a transportation facility under 7 subsection (a), the approving body or bodies: 8 (1) Shall collect and pay any revenues that are subject 9 to lien to satisfy any obligation. 10 (2) May develop and operate the transportation facility, 11 impose user fees for the use of the transportation facility 12 and comply with any service contracts. 13 (3) May solicit proposals for the maintenance and 14 operation of the transportation facility under section 9105 15 (relating to proposals for transportation development 16 agreements). 17 § 9110. Financing qualifying transportation projects. 18 (a) User fees.-- 19 (1) Each transportation development agreement shall 20 authorize the authorized development entity or entities to 21 impose user fees for use of the transportation facility. 22 Unless specifically prohibited in the transportation 23 development agreement, the authorization shall permit the 24 imposition of user fees on transportation facilities not 25 currently subject to user fees, subject to compliance with 26 applicable Federal and State law and approval by the 27 Transportation Commission. 28 (2) The transportation development agreement may 29 authorize the authorized development entity or entities to 30 collect tolls or user fees through both conventional methods 20070S1158B2145 - 20 -
1 and nonconventional methods, including, but not limited to, 2 automatic vehicle identification systems, electronic toll 3 collection systems and, to the extent permitted by law, 4 video-based toll-collection enforcement. 5 (3) A maximum rate of return on investment shall be 6 negotiated by the proprietary public entity and the 7 authorized development entity or entities and stated in the 8 transportation development agreement. 9 (4) After expiration of the original term of the 10 transportation development agreement, the proprietary public 11 entity may continue to charge user fees for the use of the 12 transportation facility. 13 (5) User fees under a transportation development 14 agreement shall generally be uniform for similar persons and 15 vehicles traveling under like conditions, except as may be 16 required to mitigate congestion on and preserve capacity of 17 the transportation facility which is the subject of the 18 transportation development agreement. 19 (b) Bonding authority.--A proprietary public entity or 20 authorized development entity or entities may authorize the 21 issuance of debt, equity or other securities or obligations to 22 pay all or part of the costs of a qualifying transportation 23 project and may secure any such financing with a pledge of, 24 security interest in or lien on any of the user fees charged and 25 collected for the use of the transportation facility. However, 26 any bonds, debt, other securities or other financing issued for 27 the purposes of this chapter shall be limited obligations of the 28 proprietary public entity or authorized development entity or 29 entities and shall not be considered to constitute a debt of the 30 Commonwealth or any political subdivision thereof or a pledge of 20070S1158B2145 - 21 -
1 the full faith and credit of the Commonwealth or any political 2 subdivision thereof. 3 (c) Limited recourse bonds backed by pledge of portion of 4 Motor License Fund revenues.--(Reserved). 5 § 9111. Power of eminent domain. 6 At the request of an authorized development entity or 7 entities, the proprietary public entity or an affected local 8 jurisdiction otherwise possessing the power of eminent domain 9 may exercise that power for the purpose of acquiring any real 10 property or interests therein deemed necessary to advance the 11 development or operation of a qualifying transportation project. 12 Any amounts payable in any such eminent domain proceeding may be 13 paid by the proprietary public entity or the authorized 14 development entity or entities. 15 § 9112. Police powers; motor vehicle laws. 16 (a) Powers and jurisdiction.--All law enforcement officers 17 of the Commonwealth and each affected local jurisdiction shall 18 have the same powers and jurisdiction within the limits of a 19 qualifying transportation project as they have in their 20 respective areas of jurisdiction, and law enforcement officers 21 shall have access to the qualifying transportation project at 22 any time for the purpose of exercising their law enforcement 23 powers and jurisdiction. 24 (b) Enforcement of traffic laws.--To the extent the 25 qualifying transportation project includes a highway, bridge, 26 tunnel, overpass or similar transportation facility for motor 27 vehicles, the traffic and motor vehicle laws of this 28 Commonwealth or, if applicable, any local jurisdiction shall be 29 the same as those applying to conduct on similar transportation 30 facilities in the Commonwealth or the local jurisdiction. 20070S1158B2145 - 22 -
1 (c) Payment of law enforcement costs.--The authorized 2 development entity or entities shall be responsible for the 3 payment of all costs associated with the provision of law 4 enforcement services pursuant to subsections (a) and (b) within 5 the limits of a qualifying transportation project. 6 (d) Fines.--Fines imposed by law enforcement officers for 7 violations occurring within the limits of a qualifying 8 transportation project shall be imposed, collected, distributed 9 and governed as otherwise provided by applicable law. 10 § 9113. Taxation of authorized development entity or entities. 11 (a) General rule.--To the extent that revenues or user fees 12 received by an authorized development entity or entities are 13 subject to any tax imposed by a political subdivision prior to 14 the effective date of this chapter, the revenues or user fees 15 shall continue to be subject to the tax and to future increases 16 in the rate of the tax. 17 (b) New taxation barred.--After the effective date of this 18 chapter, no new tax shall be imposed by a political subdivision 19 on the revenues or user fees received by an authorized 20 development entity or entities. 21 (c) Realty transfer tax.--No transportation development 22 agreement, lease, concession, franchise or other contract 23 involving real property of a qualifying transportation project 24 shall be subject to any Commonwealth or local realty transfer 25 tax imposed under the act of December 31, 1965 (P.L.1257, 26 No.511), known as The Local Tax Enabling Act, the act of March 27 4, 1971 (P.L.6, No.2), known as the Tax Reform Code of 1971, or 28 a successor statute. 29 (d) Property.--Property used in connection with a qualifying 30 transportation project shall be considered public property and 20070S1158B2145 - 23 -
1 is exempt from ad valorem property taxes and special assessments 2 levied against property by the Commonwealth or any political 3 subdivision. 4 § 9114. Pennsylvania Transportation Development Trust Fund. 5 (a) Establishment of fund.--The Pennsylvania Transportation 6 Development Trust Fund is hereby established separate and 7 distinct from the General Fund of the Commonwealth. Interest 8 earned on moneys held in the fund shall be credited to the fund. 9 The Transportation Commission shall hold, administer and manage 10 the fund, and expenses of administering the fund shall be paid 11 from money in the fund. 12 (b) Separate accounts.--Within the fund, separate accounts 13 and subaccounts may be established. 14 (c) Deposits.--Subject to the provisions of a transportation 15 development agreement, the following moneys may be deposited 16 into the fund: 17 (1) Payments received from an authorized development 18 entity or entities under a transportation development 19 agreement. 20 (2) Revenues received from a qualifying transportation 21 project pursuant to a transportation development agreement 22 with an authorized development entity or entities. 23 (3) Excess earnings over the negotiated maximum rate of 24 return for an authorized development entity or entities in a 25 transportation development agreement. 26 (4) Surcharges or other service fees or user fees which 27 may be imposed or levied by the Commonwealth on passenger or 28 commercial travel. 29 (5) Appropriations, if any, made by the General 30 Assembly. 20070S1158B2145 - 24 -
1 (6) Interest, premiums, gains or other earnings on the 2 fund. 3 (7) Any other moneys from any sources, public or 4 private, that are done by donation, grant, contract, law or 5 other means transferred, allocated or appropriated to the 6 fund. 7 (d) Permitted uses.-- 8 (1) The fund shall be a separate trust fund to be 9 appropriated and used by the Transportation Commission, upon 10 majority vote thereof, solely for the operation and 11 development of transportation facilities wholly or partly 12 within this Commonwealth. Included as a permitted use of fund 13 moneys is the funding of regional mobility authorities 14 designated by the Transportation Commission under section 15 9115 (relating to regional mobility account, etc.). 16 (2) Money may not be transferred, assigned or otherwise 17 removed from the fund except by the Transportation Commission 18 and not by the General Assembly or any other agency, 19 authority or other political subdivision of the Commonwealth. 20 (3) Money in the fund at the end of the fiscal year 21 shall not revert to the General Fund. 22 § 9115. Regional mobility account, etc. 23 (Reserved). 24 § 9116. Regional mobility authority. 25 A regional mobility authority shall be eligible to receive 26 transportation development revenues directly from the fund or 27 from a regional mobility fund. An existing local governmental 28 entity shall be eligible for designation as a regional mobility 29 authority upon application to the Transportation Commission. 30 § 9117. Turnpike lease restricted. 20070S1158B2145 - 25 -
1 The Pennsylvania Turnpike, its additions and lease properties 2 may not be subject to a transfer of oversight responsibilities 3 through a lease, sale or other agreement unless specific 4 authority is granted through an act of law passed by a majority 5 of members of the General Assembly. This section shall not 6 restrict the ability of the Pennsylvania Turnpike Commission or 7 the Transportation Commission to consider and approve 8 partnership agreements which do not require a transfer of 9 operational oversight from the Pennsylvania Turnpike Commission. 10 Section 2. This act shall take effect in 60 days. J31L74RLE/20070S1158B2145 - 26 -