Bill Text: PA HB9 | 2009-2010 | 1st Special Session | Introduced


Bill Title: Establishing public-private transportation partnerships; conferring powers and duties on the Pennsylvania Public Utility Commission, the State Transportation Commission and the Department of Transportation; and establishing the Public-Private Transportation Partnership Fund.

Spectrum: Moderate Partisan Bill (Republican 18-3)

Status: (Introduced - Dead) 2010-09-16 - Referred to TRANSPORTATION [HB9 Detail]

Download: Pennsylvania-2009-HB9-Introduced.html

  

 

    

PRINTER'S NO.  13

  

THE GENERAL ASSEMBLY OF PENNSYLVANIA

  

HOUSE BILL

 

No.

9

Special Session No. 1 of

2009-2010

  

  

INTRODUCED BY GEIST, MARKOSEK, BOYD, CARROLL, J. EVANS, GINGRICH, GROVE, HARRIS, HESS, KILLION, MARSICO, MILLER, PETRI, SAYLOR, SIPTROTH, STERN, VULAKOVICH AND WATSON, SEPTEMBER 16, 2010

  

  

REFERRED TO COMMITTEE ON TRANSPORTATION, SEPTEMBER 16, 2010  

  

  

  

AN ACT

  

1

Amending Title 74 (Transportation) of the Pennsylvania

2

Consolidated Statutes, establishing public-private

3

transportation partnerships; conferring powers and duties on

4

the Pennsylvania Public Utility Commission, the State

5

Transportation Commission and the Department of

6

Transportation; and establishing the Public-Private

7

Transportation Partnership Fund.

8

The General Assembly of the Commonwealth of Pennsylvania

9

hereby enacts as follows:

10

Section 1.  Title 74 of the Pennsylvania Consolidated

11

Statutes is amended by adding a part to read:

12

PART V

13

PUBLIC-PRIVATE TRANSPORTATION PARTNERSHIPS

14

Chapter

15

91.  Preliminary Provisions

16

92.  Public-Private Transportation Partnerships

17

CHAPTER 91

18

PRELIMINARY PROVISIONS

19

Sec.

 


1

9101.  Scope of part.

2

9102.  Declaration of policy.

3

9103.  Construction of part.

4

§ 9101.  Scope of part.

5

This part relates to public-private transportation

6

partnerships.

7

§ 9102.  Declaration of policy.

8

(a)  Legislative findings.--The General Assembly finds and

9

declares as follows:

10

(1)  There exists a public need for the timely

11

development and operation of transportation facilities within

12

this Commonwealth which address the needs of Commonwealth,

13

regional or local transportation by improving safety,

14

reducing congestion, abating environmental pollution,

15

advancing energy efficiency or conservation, improving

16

homeland security and increasing capacity or enhancing

17

economic efficiency.

18

(2)  This public need may not be wholly satisfied through

19

the use of currently existing methods of financing and

20

procurement in which transportation facilities are developed

21

or operated.

22

(3)  Authorizing private entities to develop and operate

23

transportation facilities may result in the availability of

24

these transportation facilities to the public in a more

25

timely, more efficient or less costly fashion, thereby

26

serving the public safety and welfare.

27

(b)  Intent.--It is the intent of this part:

28

(1)  to encourage investment in this Commonwealth by

29

private entities to assist in the development and operation

30

of transportation facilities; and

- 2 -

 


1

(2)  to accomplish the goal under paragraph (1), to

2

provide public entities and private entities with the

3

greatest possible flexibility in contracting with each other

4

for the provision of the public services which are the

5

subject of this title.

6

§ 9103.  Construction of part.

7

(a)  Liberal construction.--This part shall be liberally

8

construed in conformity with and to accomplish section 9102

9

(relating to declaration of policy).

10

(b)  Sole authority.--This part provides public-private

11

transportation partnership opportunities to public entities and

12

private entities and shall be construed as the sole statutory

13

authority enabling a public entity to participate with a private

14

entity in a transportation-related contract, project or activity

15

governed by this part.

16

CHAPTER 92

17

PUBLIC-PRIVATE TRANSPORTATION PARTNERSHIPS

18

Sec.

19

9201.  Definitions.

20

9202.  Prerequisite for operation.

21

9203.  Approval.

22

9204.  Service contracts.

23

9205.  Transfer and dedication of public property.

24

9206.  Powers, duties and liability of private entity.

25

9207.  Interim agreement.

26

9208.  Comprehensive agreement.

27

9209.  Multiple affected public entities.

28

9210.  Federal, Commonwealth and local assistance.

29

9211.  Financing.

30

9212.  Material default; remedies.

- 3 -

 


1

9213.  Eminent domain.

2

9214.  Public utility crossings.

3

9215.  Police powers; violations of law.

4

9216.  Transfer of assets.

5

9217.  Procurement.

6

9218.  Public-Private Transportation Partnership Fund.

7

§ 9201.  Definitions.

8

Subject to additional definitions contained in subsequent

9

provisions of this part which are applicable to specific

10

provisions of this part, the following words and phrases when

11

used in this part shall have the meanings given to them in this

12

section unless the context clearly indicates otherwise:

13

"Affected jurisdiction."  A county, city, borough,

14

incorporated town, township or local, regional or metropolitan

15

transportation organization:

16

(1)  in which all or a portion of a qualifying

17

transportation facility is located; or

18

(2)  which is directly affected by the qualifying

19

transportation facility.

20

"Affected public entity."  A public entity which owns a

21

proposed qualifying transportation facility or a qualifying

22

transportation facility, including, but not limited to:

23

(1)  A metropolitan transportation authority under 74

24

Pa.C.S. Ch. 17 (relating to metropolitan transportation

25

authorities).

26

(2)  The Delaware River Port Authority.

27

(3)  The Delaware River Joint Toll Bridge Commission.

28

(4)  A second class county port authority.

29

(5)  The Pennsylvania Turnpike Commission.

30

The term does not include a Commonwealth agency unless

- 4 -

 


1

specifically enumerated in this definition.

2

"Commission."  The Pennsylvania Public Utility Commission.

3

"Comprehensive agreement."  The comprehensive agreement

4

entered into between a private entity and the responsible public

5

entity or the affected public entity under section 9208

6

(relating to comprehensive agreement).

7

"Department."  The Department of Transportation of the

8

Commonwealth.

9

"Develop."  To plan, design, finance, lease, install,

10

construct or expand.

11

"Development."  Planning, designing, financing, leasing,

12

installing, constructing or expanding.

13

"Fund."  The Public-Private Transportation Partnership Fund

14

established in section 9218 (relating to Public-Private

15

Transportation Partnership Fund).

16

"Highway."  A way or place open to the use of the public for

17

purposes of vehicle traffic.

18

"Interim agreement."  An agreement, including a memorandum of

19

understanding or binding preliminary agreement, between a

20

private entity and the responsible public entity or the affected

21

public entity under section 9207 (relating to interim agreement)

22

which provides for completion of studies and any other

23

activities to advance the development or operation of a

24

qualifying transportation facility.

25

"Law enforcement officer."  An individual authorized by law

26

to make arrests for violations of law.

27

"Material default."  A default by a private entity in the

28

performance of its duties under section 9206 (relating to

29

powers, duties and liability of private entity) which:

30

(1)  jeopardizes adequate service to the public from a

- 5 -

 


1

qualifying transportation facility; and

2

(2)  remains unremedied after the responsible public

3

entity or the affected public entity has provided notice to

4

the private entity and a reasonable cure period has elapsed.

5

"Multimodal transportation facility."  A transportation

6

facility consisting of multiple modes of transportation.

7

"Operate."  To finance, maintain, improve, equip, modify,

8

repair, manage, run or control functioning.

9

"Operation."  The act of financing, maintaining, improving,

10

equipping, modifying, repairing, managing, running or

11

controlling functioning.

12

"Private entity."  Any individual, corporation, partnership,

13

limited liability company, limited partnership, joint venture,

14

business trust, public utility, nonprofit corporation or other

15

business entity authorized to conduct business in this

16

Commonwealth.

17

"Procurement Code."  The provisions of 62 Pa.C.S. Pt. I 

18

(relating to Commonwealth Procurement Code).

19

"Public entity."  The Commonwealth; any department, board,

20

commission, authority or agency of the Commonwealth, whether or

21

not subject to the policy supervision and control of the

22

Governor; a political subdivision; and a local, regional or

23

metropolitan transportation authority. The term does not include

24

any court or other officer or agency of the unified judicial

25

system or the General Assembly and its officers and agencies.

26

"Public utility."  As defined in 66 Pa.C.S. § 102 (relating

27

to definitions).

28

"Qualifying transportation facility."  A transportation

29

facility developed or operated by a private entity under this

30

part. The term includes a multimodal transportation facility.

- 6 -

 


1

"Responsible public entity."  The Department of

2

Transportation of the Commonwealth.

3

"Revenue."  Money generated from or received in support of

4

the development or operation of a qualifying transportation

5

facility. The term includes: income; earnings; user fees; lease

6

payments; allocations; Federal, Commonwealth and political

7

subdivision appropriations; proceeds of bonds or notes; equity

8

investments; service payments; Federal grants; and money from a

9

Federal agency or instrumentality.

10

"Service contract."  A contract entered into between a public

11

entity and a private entity under section 9204 (relating to

12

service contracts).

13

"Service payments."  Payments to a private entity pursuant to

14

a service contract.

15

"Transportation commission."  The State Transportation

16

Commission created in section 468 of the act of April 9, 1929

17

(P.L.177, No.175), known as The Administrative Code of 1929.

18

"Transportation facility."  Any highway, bridge, tunnel,

19

overpass, ferry, airport, mass transportation facility, vehicle

20

parking facility, port facility, railroad, guideway, street

21

railway or similar facility used for the transportation of

22

persons or goods. The term:

23

(1)  Includes:

24

(i)  A substantial enhancement, an improvement or an

25

increase in capacity made to a facility listed in this

26

definition.

27

(ii)  Any building, structure, parking area,

28

appurtenance and other property needed to operate a

29

facility listed in this definition.

30

(iii)  A substantial enhancement, an improvement or

- 7 -

 


1

an increase in capacity to a facility excluded under

2

paragraph (2).

3

(2)  Does not include a facility listed in this

4

definition:

5

(i)  which is available for use by the public on the

6

effective date of this definition; and

7

(ii)  for the use of which no toll, fee or charge is

8

imposed on the public.

9

"Transportation organization."  Any mass transportation,

10

port, bridge, rail, regional planning or airport authority or

11

commission organized under the laws of this Commonwealth or

12

under an interstate compact or otherwise empowered to render,

13

contract for or assist in the rendering of transportation

14

service or transportation planning in a limited area in this

15

Commonwealth, even though it may also render or assist in

16

rendering transportation service or transportation planning in

17

adjacent states.

18

"User fees."  Rates, tolls, fees or other charges imposed by

19

a private entity for use of all or a portion of a qualifying

20

transportation facility pursuant to an interim agreement or a

21

comprehensive agreement.

22

"Vehicle."  A conveyance in or on which persons or property

23

may be carried.

24

§ 9202.  Prerequisite for operation.

25

A private entity seeking authorization under this part to

26

develop or operate a transportation facility must obtain written

27

approval from the responsible public entity and the affected

28

public entity or written approval from the responsible public

29

entity and deemed approval from the affected public entity under

30

section 9203 (relating to approval). A private entity may

- 8 -

 


1

initiate the approval process by requesting approval under

2

section 9203(a), or the responsible public entity, on its own

3

initiative or jointly with the affected public entity, may

4

request proposals under section 9203(b).

5

§ 9203.  Approval.

6

(a)  Submission of proposals by private entities.--The

7

following shall apply to the submission of proposals by private

8

entities:

9

(1)  A private entity may submit a proposal to the

10

responsible public entity for approval to develop or operate

11

a transportation facility. The proposal shall be accompanied

12

by the following material and information unless waived by

13

the responsible public entity as provided in regulations

14

adopted under subsection (f):

15

(i)  A topographic map of 1:2,000 or other

16

appropriate scale indicating the location of the

17

transportation facility or facilities.

18

(ii)  A description of the transportation facility or

19

facilities, including the conceptual design of the

20

facility and all proposed interconnections with other

21

transportation facilities.

22

(iii)  The proposed date for development or operation

23

of the transportation facility along with an estimate of

24

the life cycle cost of the transportation facility as

25

proposed.

26

(iv)  A statement setting forth the method by which

27

the private entity proposes to secure any real, personal

28

or mixed property interests required for the

29

transportation facility.

30

(v)  Information relating to the current

- 9 -

 


1

transportation plans of each affected jurisdiction.

2

(vi)  A list of all permits and approvals required

3

for developing or operating improvements to the

4

transportation facility from Federal, Commonwealth or

5

local agencies and a projected schedule for obtaining the

6

permits and approvals.

7

(vii)  A list of public utility, railroad and cable

8

television provider facilities that will be crossed by

9

the transportation facility and a statement of the plans

10

of the private entity to accommodate the crossings.

11

(viii)  A statement setting forth the private

12

entity's general plans for developing or operating the

13

transportation facility, including identification of

14

revenue or proposed debt or equity investment proposed by

15

the private entity.

16

(ix)  The names and addresses of the persons who may

17

be contacted for further information concerning the

18

proposal.

19

(x)  Information on how the private entity's proposal

20

will address the needs of Commonwealth, regional or local

21

transportation by improving safety, reducing congestion,

22

abating environmental pollution, advancing energy

23

efficiency or conservation, improving homeland security,

24

increasing capacity or enhancing economic efficiency.

25

(xi)  A summary of the proposal.

26

(xii)  Additional material and information as may

27

reasonably be requested under regulations promulgated

28

under subsection (f).

29

(2)  Within five days following receipt of a proposal,

30

the responsible public entity shall provide a copy of the

- 10 -

 


1

proposal to the transportation commission. Within 45 days

2

following receipt of a proposal, the transportation

3

commission may submit its comments on the proposal to the

4

responsible public entity, which shall provide a copy of the

5

commission's comments to the affected public entity and to

6

each affected jurisdiction.

7

(3)  The following shall apply:

8

(i)  The responsible public entity shall determine if

9

the proposal includes an affected public entity and

10

shall, within five days following receipt of the

11

proposal, provide each affected public entity with a copy

12

of the summary submitted by the private entity, together

13

with a written request for the affected public entity's

14

comments and recommendations on the proposal.

15

(ii)  The affected public entity's comments shall

16

include whether the proposed qualifying transportation

17

facility will address the needs of Commonwealth, regional

18

or local transportation by improving safety, reducing

19

congestion, abating environmental pollution, advancing

20

energy efficiency or conservation, improving homeland

21

security, increasing capacity or enhancing economic

22

efficiency. The comments and recommendations of the

23

affected public entity shall utilize the criteria

24

provided in subsection (d) and any additional criteria

25

specified in regulations promulgated under subsection (f)

26

and shall be submitted to the responsible public entity

27

and the transportation commission within 45 days

28

following receipt of the responsible public entity's

29

request for comments and recommendations.

30

(iii)  If the affected public entity fails to provide

- 11 -

 


1

its comments and recommendations to the responsible

2

public entity within the 45-day period specified in this

3

paragraph or if there are multiple affected public

4

entities, the affected public entity shall be deemed to

5

have approved the proposal and, if the responsible public

6

entity approves the proposal, shall cooperate fully in

7

the completion, execution and implementation of any

8

interim agreement or comprehensive agreement related to

9

the proposal.

10

(4)  The following shall apply:

11

(i)  Within 10 days following receipt of a proposal,

12

the responsible public entity shall provide a copy of the

13

summary submitted by the private entity, together with a

14

written notification of receipt of the proposal, to each

15

affected jurisdiction. As part of its written

16

notification, the responsible public entity shall

17

identify each affected public entity and shall request

18

that comments on the proposal be submitted by each

19

affected jurisdiction. Within 30 days following receipt

20

of a request from the responsible public entity, each

21

affected jurisdiction shall submit its comments to the

22

responsible public entity, each affected public entity

23

and the transportation commission.

24

(ii)  The affected jurisdiction's comments shall

25

include whether the proposed qualifying transportation

26

facility will address the needs of Commonwealth, regional

27

or local transportation by improving safety, reducing

28

congestion, abating environmental pollution, advancing

29

energy efficiency or conservation, improving homeland

30

security, increasing capacity or enhancing economic

- 12 -

 


1

efficiency.

2

(5)  A written approval or rejection of the proposal

3

shall be submitted by the responsible public entity to the

4

private entity within 30 days following the end of all review

5

periods provided under paragraphs (2), (3) and (4).

6

(6)  The following shall apply:

7

(i)  If the responsible public entity approves the

8

private entity's proposal, the responsible public entity,

9

or the affected public entity and the responsible public

10

entity, jointly, may issue a request for proposals under

11

section 9217 (relating to procurement) from other private

12

entities for the development or operation of the

13

transportation facility. The request for proposals shall

14

include a requirement that a summary of the response be

15

submitted.

16

(ii)  Within five days following receipt of a

17

response to a request for proposals, the responsible

18

public entity shall submit the summary of the response to

19

the transportation commission and to each affected

20

jurisdiction, which shall have 15 days following receipt

21

of the summary within which to provide comments to the

22

responsible public entity and the affected public entity.

23

(iii)  Within 30 days following the expiration of the

24

transportation commission and affected jurisdiction

25

review period, the responsible public entity shall

26

provide written notification of its acceptance or

27

rejection of the initial proposal and each response to

28

the request for proposals to the private entity which

29

submitted the initial proposal, each private entity which

30

responded to the request for proposals, the

- 13 -

 


1

transportation commission, the affected public entity and

2

each affected jurisdiction.

3

(7)  The responsible public entity and the affected

4

public entity may provide for payment to a private entity

5

whose proposal or response to any subsequent request for

6

proposals is not approved of an amount as reimbursement or

7

partial reimbursement for costs incurred by the private

8

entity in preparing the proposal or response, and, in return

9

for this payment, the private entity shall grant to the

10

responsible public entity and the affected public entity the

11

right to use all or any portion of the proposal or the

12

response, including the technologies, techniques, methods,

13

processes and information contained in the project design.

14

(b)  Issuance of request for proposals.--The following shall

15

apply to issuance of request for proposals:

16

(1)  The responsible public entity may, on its own

17

initiative or at the request of an affected public entity,

18

issue a request for proposals from private entities for the

19

development or operation of transportation facilities. An

20

affected public entity may only issue a request for proposals

21

from private entities for the development or operation of

22

transportation facilities jointly with the responsible public

23

entity. The responsible public entity or the affected public

24

entity shall not charge a fee to cover the costs of

25

processing, reviewing and evaluating responses received to a

26

request for proposals issued under this subsection.

27

(2)  The following shall apply:

28

(i)  The responsible public entity shall, on the date

29

of issuance of a request for proposals, provide a copy of

30

the request for proposals to the transportation

- 14 -

 


1

commission and to each affected jurisdiction. As part of

2

the request for proposals, the responsible public entity

3

shall require a private entity submitting a response to

4

simultaneously submit a written summary of its response

5

to the responsible public entity, to the affected public

6

entity, to the transportation commission and to each

7

affected jurisdiction identified in the request for

8

proposals.

9

(ii)  Within 30 days of receipt of a summary of a

10

response from a private entity, each affected

11

jurisdiction shall submit its written comments on the

12

response to the responsible public entity, the affected

13

public entity and the transportation commission. Any

14

comments submitted by an affected jurisdiction must

15

include an indication of whether the affected

16

jurisdiction believes the proposed qualifying

17

transportation facility will address the needs of

18

Commonwealth, regional or local transportation by

19

improving safety, reducing congestion, abating

20

environmental pollution, advancing energy efficiency or

21

conservation, improving homeland security, increasing

22

capacity or enhancing economic efficiency.

23

(iii)  The transportation commission shall have 15

24

days following the expiration of the 30-day affected

25

jurisdiction comment period provided in this paragraph

26

within which to submit written comments on the response

27

to the responsible public entity and the affected public

28

entity.

29

(3)  If a private entity's response is not approved, the

30

responsible public entity and the affected public entity may

- 15 -

 


1

provide for payment of an amount as reimbursement or partial

2

reimbursement for costs incurred by the private entity in

3

preparing the response, and, in return for this payment, the

4

private entity shall grant to the responsible public entity

5

and the affected public entity the right to use all or a

6

portion of the response, including the technologies,

7

techniques, methods, processes and information contained in

8

the project design.

9

(c)  Private entity adverse interests.--The following shall

10

apply:

11

(1)  Except as provided in paragraph (2), a private

12

entity which submits a proposal or a response to a request

13

for proposals under subsection (a) or which submits a

14

response to a request for proposals under subsection (b) and

15

which is also a State advisor or a State consultant for the

16

responsible public entity or an affected public entity shall

17

not be deemed to be in violation of the act of July 19, 1957

18

(P.L.1017, No.451), known as the State Adverse Interest Act,

19

while engaging in any of the following activities:

20

(i)  Preparing or submitting the proposal or response

21

to a request for proposals.

22

(ii)  Participating in any activities with the

23

responsible public entity or the affected public entity

24

related to the proposal or response to request for

25

proposals.

26

(iii)  Negotiating and entering into any contract,

27

lease, interim agreement or comprehensive agreement with

28

the responsible public entity or the affected public

29

entity which results from the proposal or response to

30

request for proposals.

- 16 -

 


1

(iv)  Engaging in other actions taken in furtherance

2

of the purposes of this part.

3

(2)  A private entity which submits a proposal or a

4

response to a request for proposals shall be prohibited from

5

providing advice to the responsible public entity and the

6

affected public entity under subsection (d) on its proposal

7

or a request for proposals for which it has submitted a

8

response.

9

(d)  Criteria for review.--The responsible public entity and

10

the affected public entity may grant approval of the development

11

or operation of the transportation facility as a qualifying

12

transportation facility if both the responsible public entity

13

and the affected public entity determine that it serves the

14

public purpose of this part. The responsible public entity and

15

the affected public entity may determine that the development or

16

operation of the transportation facility as a qualifying

17

transportation facility serves such public purpose if all of the

18

following apply:

19

(1)  There is a public need for the transportation

20

facility the private entity proposes to develop or operate as

21

a qualifying transportation facility.

22

(2)  The transportation facility and the proposed

23

interconnections with existing transportation facilities and

24

the private entity's plans for development or operation of

25

the qualifying transportation facility are, in the opinion of

26

the responsible public entity and the affected public entity,

27

reasonable and will address the needs of Commonwealth,

28

regional or local transportation by improving safety,

29

reducing congestion, addressing environmental concerns,

30

advancing energy efficiency or conservation, improving

- 17 -

 


1

homeland security, increasing capacity or enhancing economic

2

efficiency.

3

(3)  The estimated cost of the transportation facility is

4

reasonable in relation to similar facilities.

5

(4)  The private entity's plans will result in the timely

6

development, operation or more efficient operation of the

7

transportation facility.

8

(5)  The private entity will agree to honor any existing

9

collective bargaining agreement related to the qualifying

10

transportation facility for the term of the agreement and

11

will comply with the act of August 15, 1961 (P.L.987,

12

No.442), known as the Pennsylvania Prevailing Wage Act, with

13

regard to the development or operation of the qualifying

14

transportation facility. In evaluating a proposal or response

15

to a request for proposals, the responsible public entity and

16

the affected public entity may rely upon internal staff

17

reports prepared by personnel familiar with the operation of

18

similar facilities or the advice of outside advisors or

19

consultants having relevant experience. The responsible

20

public entity and the affected public entity may request the

21

advice and assistance of other public entities in the

22

performance of their duties under this part.

23

(e)  Fees.--The following shall apply to fees:

24

(1)  The responsible public entity may charge a

25

reasonable fee to cover the costs of processing, reviewing

26

and evaluating a proposal submitted by a private entity or a

27

subsequent response to a request for proposals under

28

subsection (a), including reasonable attorney fees and fees

29

for financial and other necessary advisors or consultants.

30

The fee to be charged by the responsible public entity shall

- 18 -

 


1

include a reasonable reimbursement for costs incurred by the

2

affected public entity for its review of a proposal or a

3

response to a request for proposals. The responsible public

4

entity shall annually publish a notice in the Pennsylvania

5

Bulletin of the fee schedule for the review of proposals and

6

responses to requests for proposals submitted by private

7

entities under subsection (a).

8

(2)  All fees collected under paragraph (1) shall be

9

retained by the responsible public entity and the affected

10

public entity and used as provided under paragraph (1) or for

11

other purposes permitted under this part.

12

(3)  No fee shall be imposed by the responsible public

13

entity or any affected public entity for the cost of

14

processing, reviewing and evaluating responses to any request

15

for proposals under subsection (b).

16

(f)  Regulations.--The following shall apply to regulations:

17

(1)  In order to facilitate the implementation of this

18

part and to provide one uniform procedure for submission and

19

review of proposals submitted, issuance of a request for

20

proposals and submission and review of responses to a request

21

for proposals under subsection (a) and responses to requests

22

for proposals under subsection (b), the responsible public

23

entity shall promulgate regulations that include all of the

24

following:

25

(i)  A specific schedule for review of proposals or

26

responses to requests for proposals by the responsible

27

public entity and the affected public entity.

28

(ii)  A process for alteration of that schedule by

29

the responsible public entity and the affected public

30

entity if changes are necessary because of the scope or

- 19 -

 


1

complexity of proposals or responses received.

2

(iii)  The process for receipt and review of

3

competing proposals and responses to requests for

4

proposals.

5

(iv)  The type and amount of information that is

6

necessary for adequate review of proposals or responses

7

to requests for proposals in each stage of review.

8

(v)  A prioritized documentation, review and

9

selection process for qualifying transportation

10

facilities that have approved or pending Federal and

11

Commonwealth clearances, have secured significant right-

12

of-way, have previously been allocated significant

13

Federal or Commonwealth funding or exhibit other

14

circumstances that could reasonably reduce the amount of

15

time to develop or operate the qualifying transportation

16

facility in accordance with the purpose of this part.

17

(vi)  Action to be taken to protect confidential and

18

proprietary information required under subsection (i).

19

(vii)  Any other provisions which are required under

20

this part or which the responsible public entity

21

determines are necessary for implementation of this part.

22

(2)  Within 120 days following the effective date of this

23

subsection, the responsible public entity shall publish draft

24

interim regulations in the Pennsylvania Bulletin for comment.

25

The draft interim regulations shall have a 60-day public

26

comment period. Within 90 days following the close of the

27

public comment period on the draft interim regulations, the

28

responsible public entity shall publish final interim

29

regulations in the Pennsylvania Bulletin implementing this

30

part. The draft interim regulations and the final interim

- 20 -

 


1

regulations shall not be subject to section 201 of the act of

2

July 31, 1968 (P.L.769, No.240), referred to as the

3

Commonwealth Documents Law, nor to review or approval under

4

the act of June 25, 1982 (P.L.633, No.181), known as the

5

Regulatory Review Act. The final interim regulations shall

6

expire on the earlier of the following:

7

(i)  Two years after their publication in the

8

Pennsylvania Bulletin.

9

(ii)  The publication of final regulations pursuant

10

to the Commonwealth Documents Law and the Regulatory

11

Review Act.

12

(g)  Requirement for interim agreement or comprehensive

13

agreement.--The approval of the responsible public entity and

14

the affected public entity shall be subject to the private

15

entity's entering into an interim agreement or a comprehensive

16

agreement with the responsible public entity and the affected

17

public entity.

18

(h)  Date for beginning construction or improvements.--In

19

connection with approval of the development or operation of the

20

transportation facility as a qualifying transportation facility,

21

the responsible public entity and the affected public entity

22

shall establish a date for the beginning of construction of or

23

improvements to the qualifying transportation facility. The

24

responsible public entity and the affected public entity may

25

extend this date.

26

(i)  Confidential and proprietary information.--The following

27

shall apply:

28

(1)  In the regulations promulgated under subsection (f),

29

the responsible public entity shall specify appropriate

30

action to be taken by the responsible public entity, the

- 21 -

 


1

affected public entity, the affected jurisdiction and the

2

transportation commission to protect confidential and

3

proprietary information provided by the private entity.

4

(2)  A proposal or a response to a request for proposals

5

submitted by a private entity under subsection (a), a

6

response submitted by a private entity to a request for

7

proposals under subsection (b) and the summary of the

8

proposal or response shall be confidential and, until a

9

comprehensive agreement under section 9208 (relating to

10

comprehensive agreement) is entered into by the private

11

entity and the responsible public entity or the affected

12

public entity, the proposal, the response and the summary

13

shall not be subject to disclosure under the act of February

14

14, 2008 (P.L.6, No.3), known as the Right-to-Know Law, or

15

any other act. Upon the execution of a comprehensive

16

agreement under section 9208, information contained in the

17

proposal, the response and the summary shall be considered to

18

be a public record for purposes of disclosure under the

19

Right-to-Know Law.

20

(j)  Federal credit assistance.--The responsible public

21

entity and the affected public entity may also apply for,

22

execute or endorse applications submitted by private entities to

23

obtain Federal credit assistance for qualifying transportation

24

facilities developed or operated under this part.

25

(k)  Taxes.--All of the following shall apply:

26

(1)  Revenue received by a private entity and all user

27

fees shall continue to be subject to any tax, and to future

28

increases in the rate of any tax, which was imposed by a

29

political subdivision prior to the effective date of this

30

subsection and which was otherwise applicable to the revenue

- 22 -

 


1

and user fees.

2

(2)  No new tax may be imposed by a political subdivision

3

on the revenue received by a private entity or on user fees.

4

(l)  Definitions.--As used in this section, the following

5

words and phrases shall have the meanings given to them in this

6

subsection:

7

"State advisor."  As defined in section 2 of the act of July

8

19, 1957 (P.L.1017, No.451), known as the State Adverse Interest

9

Act.

10

"State consultant."  As defined in section 2 of the act of

11

July 19, 1957 (P.L.1017, No.451), known as the State Adverse

12

Interest Act.

13

§ 9204.  Service contracts.

14

In addition to any authority otherwise conferred by law, a

15

public entity may contract with a private entity for

16

transportation services to be provided by a qualifying

17

transportation facility in exchange for service payments and

18

other consideration as the public entity may deem appropriate.

19

§ 9205.  Transfer and dedication of public property.

20

(a)  Powers.--Except for an ownership interest and subject to

21

the provisions of this part, a public entity may transfer a

22

real, personal or mixed property interest it has in a qualifying

23

transportation facility to a private entity for such

24

consideration as the public entity and the private entity may

25

agree upon.

26

(b)  Consideration.--Consideration under subsection (a) may

27

include the agreement of the private entity to operate the

28

qualifying transportation facility.

29

(c)  Interests.--Except for an ownership interest, the real,

30

personal or mixed property interests that the public entity may

- 23 -

 


1

transfer to the private entity under this section may include

2

licenses, leaseholds, franchises, easements or any other right

3

or interest in the qualifying transportation facility which the

4

public entity deems appropriate.

5

(d)  Additional property.--Subject to the provisions of this

6

part, the private entity may acquire, construct and purchase

7

additional real, personal and mixed property and incorporate the

8

additional property into the qualifying transportation facility

9

if, upon the incorporation, all ownership interests in the

10

property are transferred and dedicated to and vested in the

11

public entity, for such consideration as the public entity and

12

the private entity may agree, with the private entity retaining

13

the property interests other than an ownership interest.

14

(e)  Definition.--As used in this section the term "ownership

15

interest" means fee simple title and reversionary interest in

16

the real property and similar title and rights in the personal

17

and mixed property constituting the qualifying transportation

18

facility.

19

§ 9206.  Powers, duties and liability of private entity.

20

(a)  General powers.--A private entity shall have all power

21

allowed by law generally to a private entity having the same

22

form of organization as the private entity and shall have the

23

power to develop or operate the qualifying transportation

24

facility, impose user fees and enter into service contracts in

25

connection with the use of the qualifying transportation

26

facility. No tolls or user fees may be imposed by the private

27

entity without the necessary Federal, Commonwealth or local

28

approvals and as provided in the interim agreement or the

29

comprehensive agreement.

30

(b)  Right to lease, use, develop or operate qualifying

- 24 -

 


1

transportation facility.--A private entity may lease or acquire

2

any other right to use or develop or operate the qualifying

3

transportation facility. No interim agreement, comprehensive

4

agreement, lease or contract involving real property of a

5

qualifying transportation facility shall be subject to the

6

realty transfer tax imposed under Article XI-C or XI-D of the

7

act of March 4, 1971 (P.L.6, No.2), known as the Tax Reform Code

8

of 1971, or under the act of December 31, 1965 (P.L.1257,

9

No.511), known as The Local Tax Enabling Act.

10

(c)  Canals and waterways.--Subject to applicable permit

11

requirements, a private entity shall have the authority to cross

12

any canal or navigable watercourse if the crossing does not

13

unreasonably interfere with then-current navigation and use of

14

the waterway.

15

(d)  Operation of qualifying transportation facility.--In

16

operating the qualifying transportation facility, a private

17

entity may do all of the following:

18

(1)  Make classifications according to reasonable

19

categories for assessment of user fees.

20

(2)  Make and enforce, with the consent of the

21

responsible public entity or the affected public entity,

22

reasonable rules to the same extent that the responsible

23

public entity or the affected public entity may make and

24

enforce rules with respect to a similar transportation

25

facility.

26

(e)  Duties.--The private entity shall do all of the

27

following:

28

(1)  Develop or operate, in accordance with the

29

provisions of the interim agreement or the comprehensive

30

agreement, the qualifying transportation facility in a manner

- 25 -

 


1

that meets the standards of the responsible public entity or

2

the affected public entity for similar transportation

3

facilities operated and maintained by the responsible public

4

entity or the affected public entity.

5

(2)  Keep the qualifying transportation facility open for

6

use by the members of the public, in accordance with the

7

terms and conditions of the interim or comprehensive

8

agreement, after its initial opening upon payment of the

9

applicable user fees or service payments. The qualifying

10

transportation facility may be temporarily closed because of

11

emergencies or, with the consent of the responsible public

12

entity or the affected public entity, to protect the safety

13

of the public or for reasonable construction or maintenance

14

procedures.

15

(3)  Maintain or provide by contract for the maintenance

16

of the qualifying transportation facility.

17

(4)  Cooperate with the responsible public entity or the

18

affected public entity in establishing any interconnection

19

with the qualifying transportation facility requested by the

20

responsible public entity or the affected public entity.

21

(5)  Comply with the provisions of the interim or

22

comprehensive agreement and any service contract.

23

(f)  Liability.--In recognition of the public benefit derived

24

from a private entity's development or operation of a qualifying

25

transportation facility, a private entity which develops or

26

operates a qualifying transportation facility shall not be

27

subject to civil liability that arises due to the injury or

28

death of an individual using the qualifying transportation

29

facility, unless the injury or death results from an act or

30

omission of the private entity constituting gross negligence,

- 26 -

 


1

recklessness or intentional misconduct.

2

§ 9207.  Interim agreement.

3

(a)  Provisions.--Prior to or in connection with the

4

negotiation of the comprehensive agreement as provided under

5

section 9208 (relating to comprehensive agreement), the

6

responsible public entity or the affected public entity may

7

enter into an interim agreement with a private entity proposing

8

the development or operation of the proposed qualifying

9

transportation facility. The interim agreement shall require a

10

private entity, for the term of the interim agreement, to

11

provide the responsible public entity or the affected public

12

entity with periodic reports and audits related to disclosure,

13

internal control and performance and financial accounting. The

14

periodic reports and audits shall be prepared by an independent

15

consulting or certified public accounting firm engaged by the

16

private entity and shall be made available by the responsible

17

public entity or the affected public entity for public

18

inspection and copying under the act of February 14, 2008

19

(P.L.6, No.3), known as the Right-to-Know Law. The interim

20

agreement may provide for all of the following:

21

(1)  Permitting the private entity to commence activities

22

for which it may be compensated relating to the proposed

23

qualifying transportation facility, including project

24

planning and development, advance right-of-way acquisition,

25

design and engineering, environmental analysis and

26

mitigation, survey, conducting transportation and revenue

27

studies and ascertaining the availability of financing for

28

the proposed qualifying transportation facility or

29

facilities.

30

(2)  Establishing the process and timing of the

- 27 -

 


1

negotiation of the comprehensive agreement.

2

(3)  Containing any other provisions related to any

3

aspect of the development or operation of a qualifying

4

transportation facility that the parties may deem

5

appropriate.

6

(b)  Multiple private entities.--Notwithstanding any other

7

provision of this part, the responsible public entity or the

8

affected public entity may enter into an interim agreement with

9

multiple private entities if the responsible public entity or

10

the affected public entity determines in writing that it is in

11

the public interest to do so. The written determination may not

12

take effect until a copy is provided to the transportation

13

commission and is published as a notice in the Pennsylvania

14

Bulletin.

15

§ 9208.  Comprehensive agreement.

16

(a)  Provisions.--Prior to developing or operating the

17

qualifying transportation facility, a private entity shall enter

18

into a comprehensive agreement with the responsible public

19

entity or the affected public entity. The comprehensive

20

agreement shall, as appropriate, provide for all of the

21

following:

22

(1)  Delivery of performance and payment bonds in

23

connection with the development or operation of the

24

qualifying transportation facility, in the forms and amounts

25

satisfactory to the responsible public entity or the affected

26

public entity.

27

(2)  Review of plans for the development or operation of

28

the qualifying transportation facility by the responsible

29

public entity or the affected public entity and approval by

30

the responsible public entity or the affected public entity

- 28 -

 


1

if the plans conform to standards acceptable to the

2

responsible public entity or the affected public entity.

3

(3)  Periodic inspection of construction of or

4

improvements to the qualifying transportation facility by the

5

responsible public entity or the affected public entity to

6

ensure that they conform to the standards acceptable to the

7

responsible public entity or the affected public entity.

8

(4)  Maintenance of a policy of public liability

9

insurance, copies of which shall be filed with the

10

responsible public entity or the affected public entity,

11

accompanied by proofs of coverage, or self-insurance, each in

12

form and amount satisfactory to the responsible public entity

13

or the affected 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 qualifying

16

transportation facility.

17

(5)  Periodic monitoring of the maintenance practices of

18

the private entity by the responsible public entity or the

19

affected public entity and the taking of actions as the

20

responsible public entity or the affected public entity finds

21

appropriate to ensure that the qualifying transportation

22

facility is properly maintained.

23

(6)  Reimbursement to be paid to the responsible public

24

entity or the affected public entity for services provided by

25

the responsible public entity or the affected public entity.

26

(7)  Filing of appropriate financial statements in a form

27

acceptable to the responsible public entity or the affected

28

public entity on a periodic basis.

29

(8)  Compensation to the private entity, which may

30

include one or a combination of a reasonable development fee,

- 29 -

 


1

a reasonable maximum rate of return on investment or

2

reimbursement of development expenses in the event of

3

termination for convenience by the responsible public entity

4

or the affected public entity, as agreed upon between the

5

responsible public entity or the affected public entity and

6

the private entity.

7

(9)  The date of termination of the private entity's

8

authority and duties under this part and transfer to the

9

responsible public entity or the affected public entity.

10

(10)  Guaranteed cost and completion guarantees related

11

to the development or operation of the qualifying

12

transportation facility and payment of damages for failure to

13

meet the completion guarantee.

14

(11)  Submission, on at least an annual basis, by the

15

private entity to the responsible public entity or the

16

affected public entity of reports and audits related to

17

disclosure, internal control and performance and financial

18

accounting. The reports and audits shall be prepared by an

19

independent consulting or certified public accounting firm

20

engaged by the private entity and shall be made available by

21

the responsible public entity or the affected public entity

22

for public inspection and copying under the act of February

23

14, 2008 (P.L.6, No.3), known as the Right-to-Know Law.

24

(b)  User fees.--The following shall apply:

25

(1)  The comprehensive agreement shall provide for user

26

fees as may be established by agreement of the parties.

27

(2)  User fees shall be set at a level that takes into

28

account lease payments, service payments and compensation to

29

the private entity or as specified in the comprehensive

30

agreement.

- 30 -

 


1

(3)  A copy of any service contract shall be filed with

2

the responsible public entity or the affected public entity.

3

(4)  A schedule of the current user fees shall be

4

provided by the private entity to the responsible public

5

entity, the affected public entity and each affected

6

jurisdiction when initially imposed and whenever changed and

7

shall be made available by the private entity to any member

8

of the public on request.

9

(5)  In negotiating user fees under this section, the

10

parties shall establish fees that are the same for persons

11

using the qualifying transportation facility under like

12

conditions, except as required by agreement between the

13

parties to preserve capacity and prevent congestion on the

14

qualifying transportation facility.

15

(6)  The execution of the comprehensive agreement or any

16

amendment to the comprehensive agreement shall constitute

17

conclusive evidence that the user fees provided in the

18

comprehensive agreement comply with this part.

19

(7)  User fees established in the comprehensive agreement

20

as a source of revenue may be in addition to or in lieu of

21

service payments.

22

(c)  Grants and loans.--In the comprehensive agreement, the

23

responsible public entity or the affected public entity may

24

agree to make grants or loans to the private entity for the

25

development or operation of the qualifying transportation

26

facility from amounts received from the Federal Government or

27

any of its agencies or instrumentalities.

28

(d)  Additional provisions.--The following shall apply:

29

(1)  The comprehensive agreement shall incorporate the

30

duties of the private entity under this part and may contain

- 31 -

 


1

other terms and conditions as the responsible public entity

2

or the affected public entity determines serve the public

3

purpose of this part.

4

(2)  The comprehensive agreement may contain provisions

5

under which the responsible public entity or the affected

6

public entity agrees to provide notice of default and cure

7

rights for the benefit of the private entity and the persons

8

specified in the comprehensive agreement as providing

9

financing for the qualifying transportation facility.

10

(3)  The comprehensive agreement may contain other lawful

11

terms and conditions to which the private entity and the

12

responsible public entity or the affected public entity

13

mutually agree, including provisions regarding unavoidable

14

delays or provisions providing for a loan of public funds for

15

the development or operation of one or more qualifying

16

transportation facilities.

17

(e)  Excess earnings.--The comprehensive agreement shall

18

provide for the distribution of any earnings in excess of the

19

maximum rate of return as negotiated in the comprehensive

20

agreement. Excess earnings may be distributed to the fund

21

established under section 9218 (relating to Public-Private

22

Transportation Partnership Fund) or to the private entity for

23

debt reduction.

24

(f)  Amendment.--Any changes in the terms of the

25

comprehensive agreement as may be agreed upon by the parties

26

shall be added to the comprehensive agreement by written

27

amendment.

28

(g)  Multiple private entities.--Notwithstanding any other

29

provision of this part, the responsible public entity or the

30

affected public entity may enter into a comprehensive agreement

- 32 -

 


1

with multiple private entities if the responsible public entity

2

or the affected public entity determines in writing that it is

3

in the public interest to do so. The written determination may

4

not take effect until a copy is provided to the transportation

5

commission and is published as a notice in the Pennsylvania

6

Bulletin.

7

(h)  Phased development and operation.--The comprehensive

8

agreement may provide for the development or operation of phases

9

or segments of the qualifying transportation facility.

10

§ 9209.  Multiple affected public entities.

11

(a)  Private entity proposals.--If a private entity submits a

12

proposal pursuant to section 9203(a) (relating to approval) to

13

develop or operate a qualifying transportation facility that may

14

require approval by the responsible public entity and more than

15

one affected public entity, representatives of each of the

16

affected public entities shall convene and determine which

17

affected public entity shall serve as the coordinating affected

18

public entity. The determination shall occur within ten days of

19

the receipt of the summary of the proposal by the respective

20

affected public entities. If the affected public entities cannot

21

reach agreement on which affected public entity will serve as

22

the coordinating affected public entity within the allotted ten-

23

day period, the responsible public entity shall designate one of

24

the affected public entities to serve as the coordinating

25

affected public entity.

26

(b)  Comments and review.--The coordinating affected public

27

entity shall be subject to the requirements of section 9203(a)

28

(3) for completion of its review and submission of its comments

29

and recommendations, except that the coordinating affected

30

public entity may submit a written request to the responsible

- 33 -

 


1

public entity requesting approval of an extension of up to 20

2

days for completion of its review and submission of its

3

recommendations. If the coordinating affected public entity

4

fails to provide its comments and recommendations to the

5

responsible public entity within the 45-day period specified in

6

section 9203(a)(3) or any extension of that period granted by

7

the responsible public entity, all affected public entities on

8

whose behalf the coordinating affected public entity was

9

designated to act shall be deemed to have approved the proposal

10

and, if the responsible public entity approves the proposal,

11

shall cooperate fully in completion, execution and

12

implementation of any interim agreement or comprehensive

13

agreement related to the proposal.

14

(c)  Request for proposals.--If a request for proposals is

15

issued pursuant to section 9203(b) and the issuance includes

16

more than one affected public entity, the responsible public

17

entity shall request that representatives of each of the

18

affected public entities convene and determine which affected

19

public entity shall serve as the coordinating affected public

20

entity. The determination of which affected public entity shall

21

serve as the coordinating affected public entity shall be made

22

prior to issuance of a request for proposals. If the affected

23

public entities cannot reach agreement on the designation of a

24

coordinating affected public entity within ten days of receipt

25

of a written request from the responsible public entity to

26

convene and make a designation, the responsible public entity

27

shall designate one of the affected public entities to serve as

28

the coordinating affected public entity.

29

(d)  Action following determination.--Once a determination

30

has been made in accordance with subsection (a), (b) or (c), the

- 34 -

 


1

responsible public entity, the coordinating affected public

2

entity and the private entity shall proceed in accordance with

3

this part.

4

§ 9210.  Federal, Commonwealth and local assistance.

5

(a)  Obtaining assistance.--The responsible public entity and

6

the affected public entity may take any action to obtain

7

Federal, Commonwealth or local assistance for a qualifying

8

transportation facility that serves the public purpose of this

9

part and may enter into any contracts required to receive

10

Federal assistance. Funds received from the Commonwealth, other

11

than grant or loan funds provided pursuant to statute, or from

12

the Federal Government or a Federal agency or instrumentality

13

shall be subject to appropriation by the General Assembly. The

14

responsible public entity and the affected public entity may

15

determine that it serves the public purpose of this part for all

16

or any portion of the costs of a qualifying transportation

17

facility to be paid, directly or indirectly, from the proceeds

18

of a grant or loan made by the Federal, Commonwealth or local

19

government or a government agency or instrumentality.

20

(b)  Use of grants and loans.--The responsible public entity

21

and the affected public entity may agree to make grants or loans

22

for the development or operation of the qualifying

23

transportation facility from amounts received from the Federal,

24

Commonwealth or local government or a government agency or

25

instrumentality.

26

(c)  Pledge of Commonwealth full faith and credit.--Nothing

27

in this part or in an interim or comprehensive agreement entered

28

into pursuant to this part shall be deemed to enlarge, diminish

29

or affect the authority otherwise possessed by the responsible

30

public entity and the affected public entity to take action that

- 35 -

 


1

would impact the debt capacity of the Commonwealth or the

2

affected jurisdictions, except that in no event shall any debt

3

financing for a qualifying transportation facility pledge the

4

full faith and credit of the Commonwealth for the payment of

5

debt and that any debt incurred for financing of a qualifying

6

transportation facility shall be payable solely from one or a

7

combination of:

8

(1)  revenue for the qualifying transportation facility;

9

(2)  a pledge of, security interest in or lien on grants,

10

loans or other funds received by or provided by the private

11

entity, the affected public entity or an affected

12

jurisdiction; or

13

(3)  a pledge of, security interest in or lien on real,

14

personal or mixed property owned by the private entity.

15

§ 9211.  Financing.

16

(a)  General rule.--Except as provided in section 9210(c)

17

(relating to Federal, Commonwealth and local assistance), any

18

financing of a qualifying transportation facility may be in

19

amounts and upon terms and conditions as determined by the

20

parties to the interim or comprehensive agreement.

21

(b)  Exception.--Without limiting the generality of

22

subsection (a), the private entity, the responsible public

23

entity, the affected public entity and an affected jurisdiction

24

may propose to utilize any and all money that may be available

25

to them and may, to the fullest extent permitted by applicable

26

law and subject to the limitations of section 9210(c), issue

27

debt, equity or other securities or obligations, enter into

28

leases and grant and loan agreements, access any designated

29

transportation trust funds, borrow or accept grants from any

30

Commonwealth program and secure any financing with a pledge of,

- 36 -

 


1

security interest in or lien on, any or all of the revenue from

2

the qualifying transportation facility, money from any grants,

3

loans or other funds received by or provided by the private

4

entity, the affected public entity or an affected jurisdiction,

5

and any real, personal or mixed property owned by the private

6

entity.

7

§ 9212.  Material default; remedies.

8

(a)  Remedies.--Upon the occurrence and during the

9

continuation of material default, the responsible public entity

10

or the affected public entity may exercise the following

11

remedies:

12

(1)  The responsible public entity or the affected public

13

entity may elect to take over the qualifying transportation

14

facility and shall succeed to all of the right, title and

15

interest in the qualifying transportation facility, subject

16

to liens on revenue previously granted by the private entity

17

to a person providing financing for the transportation

18

facility.

19

(2)  The responsible public entity or the affected public

20

entity may terminate the interim or comprehensive agreement

21

and exercise any other rights and remedies which may be

22

available to it at law or in equity.

23

(3)  The responsible public entity or the affected public

24

entity may make or cause to be made any appropriate claims

25

under the performance or payment bonds required by section

26

9208 (relating to comprehensive agreement).

27

(b)  Exercise of remedies.--If the responsible public entity

28

or the affected public entity elects to take over a qualifying

29

transportation facility under subsection (a), the responsible

30

public entity or the affected public entity may develop or

- 37 -

 


1

operate the qualifying transportation facility, impose user fees

2

for the use of the facility and comply with service contracts as

3

if the responsible public entity or the affected public entity

4

were the private entity. Revenue subject to a lien shall be

5

collected for the benefit of, and paid to, secured parties as

6

their interests may appear and to the extent necessary to

7

satisfy the private entity's obligations to the secured parties,

8

including the maintenance of reserves, and the liens shall be

9

correspondingly reduced and, when paid off, released. Before any

10

payments to, or for the benefit of, secured parties, the

11

responsible public entity or the affected public entity may use

12

revenue to pay current operation and maintenance costs of the

13

qualifying transportation facility or facilities, including

14

compensation to the responsible public entity or the affected

15

public entity for its services in operating and maintaining the

16

qualifying transportation facility. Remaining revenue after all

17

payments for operation and maintenance of the qualifying

18

transportation facility and all payments to or for the benefit

19

of secured parties shall be paid to the private entity, subject

20

to the negotiated maximum rate of return. The right to receive

21

the payment shall be considered just compensation for the

22

qualifying transportation facility. The full faith and credit of

23

the Commonwealth shall not be pledged to secure any financing of

24

the private entity by the election to take over the qualifying

25

transportation facility. Assumption of operation of the

26

qualifying transportation facility shall not obligate the

27

responsible public entity or the affected public entity to pay

28

any obligation of the private entity from sources other than

29

revenue.

30

§ 9213.  Eminent domain.

- 38 -

 


1

(a)  Exercise of eminent domain.--At the request of the

2

private entity, the responsible public entity and the affected

3

public entity may exercise the right of eminent domain for the

4

purpose of acquiring any lands or estates or interests therein

5

to the extent permitted by laws governing eminent domain and to

6

the extent that the responsible public entity or the affected

7

public entity finds that the action serves the public purpose of

8

this part. Any amounts to be paid in any such eminent domain

9

proceeding shall be paid by the private entity.

10

(b)  Exercise against qualifying transportation facility.--

11

Except as provided in subsection (a), until the responsible

12

public entity or the affected public entity, after notice to the

13

private entity and the secured parties as may appear in the

14

private entity's records and an opportunity for hearing, has

15

obtained a final declaratory judgment that a material default

16

has occurred and is continuing, the power of eminent domain may

17

not be exercised against a qualifying transportation facility.

18

(c)  Exercise following declaratory judgment.--After the

19

entry of a final declaratory judgment, the responsible public

20

entity or the affected public entity having the power of eminent

21

domain under the laws of this Commonwealth may exercise the

22

power of eminent domain, in lieu of or at any time after taking

23

over the qualifying transportation facility pursuant to section

24

9212(a)(1) (relating to material default; remedies), in order to

25

acquire the qualifying transportation facility or facilities.

26

Nothing in this part shall be construed to limit the exercise of

27

the power of eminent domain by the responsible public entity or

28

the affected public entity against a qualifying transportation

29

facility after the entry of a final declaratory judgment

30

pursuant to subsection (b). Any person that has provided

- 39 -

 


1

financing for the qualifying transportation facility and the

2

private entity, to the extent of its capital investment, may

3

participate in the eminent domain proceedings with the standing

4

of a property owner.

5

§ 9214.  Public utility crossings.

6

A private entity and each public utility, railroad and cable

7

television provider whose facilities are to be crossed or

8

affected shall cooperate fully with each other in planning and

9

arranging the manner of the crossing or relocation of the

10

facilities. Any entity possessing the power of eminent domain is

11

expressly granted authority to utilize such powers to the extent

12

permitted by laws governing eminent domain in connection with

13

the moving or relocation of facilities to be crossed by the

14

qualifying transportation facility or that must be relocated to

15

the extent that such moving or relocation is made necessary or

16

desirable by construction of or improvements to the qualifying

17

transportation facility, which shall be construed to include

18

construction of or improvements to temporary facilities for the

19

purpose of providing service during the period of construction

20

or improvement. If the private entity and any public utility,

21

railroad and cable television provider are unable to agree upon

22

a plan for a crossing or relocation, the commission may

23

determine the manner in which the crossing or relocation shall

24

be accomplished and shall determine any damages due as a result

25

of the crossing or relocation. The commission may employ expert

26

engineers to examine the location and plans for the crossing or

27

relocation, hear objections, consider modifications and make

28

recommendations to the commission, in which case the cost of the

29

expert shall be borne by the private entity. Any amount to be

30

paid for a crossing or for construction of, moving or relocating

- 40 -

 


1

facilities shall be paid by the private entity or any other

2

person who is contractually responsible to make the payment

3

under an interim or comprehensive agreement or any other

4

contract, license or permit. The commission shall make a

5

determination within 90 days of notification by the private

6

entity that the qualifying transportation facility will cross

7

public utilities subject to the commission's jurisdiction.

8

§ 9215.  Police powers; violations of law.

9

(a)  Powers and jurisdiction.--All law enforcement officers

10

of the Commonwealth and each affected jurisdiction shall have

11

the same powers and jurisdiction within the limits of a

12

qualifying transportation facility as they have in their

13

respective areas of jurisdiction, and law enforcement officers

14

shall have access to the qualifying transportation facility at

15

any time for the purpose of exercising their law enforcement

16

powers and jurisdiction. The grant of authority in this

17

subsection does not extend to the private offices, buildings,

18

garages and other improvements of the private entity to any

19

greater degree than the police power extends to any other

20

private buildings and improvements.

21

(b)  Enforcement of traffic laws.--To the extent the

22

qualifying transportation facility is a highway, bridge, tunnel,

23

overpass or similar transportation facility for motor vehicles,

24

the traffic and motor vehicle laws of this Commonwealth or, if

25

applicable, any local jurisdiction shall be the same as those

26

applying to conduct on similar transportation facilities in this

27

Commonwealth or the local jurisdiction. Punishment for offenses

28

shall be as prescribed by law for conduct occurring on similar

29

transportation facilities in this Commonwealth or the local

30

jurisdiction.

- 41 -

 


1

(c)  Payment of costs.--A private entity shall be responsible

2

for the payment of all costs associated with the provision of

3

law enforcement services pursuant to subsections (a) and (b)

4

within the limits of a qualifying transportation facility.

5

(d)  Imposition, collection and disposition of fines.--Fines

6

imposed by law enforcement officers for violations occurring

7

within the limits of a qualifying transportation facility shall

8

be imposed, collected, distributed and governed as otherwise

9

provided by applicable law.

10

§ 9216.  Transfer of assets.

11

The responsible public entity or the affected public entity

12

shall terminate the private entity's authority and duties under

13

this part on the date set forth in the interim or comprehensive

14

agreement. Upon termination, the authority and duties of the

15

private entity under this part shall cease, and all property,

16

real, personal and mixed, constituting the qualifying

17

transportation facility shall be transferred to the responsible

18

public entity or the affected public entity, if any.

19

§ 9217.  Procurement.

20

(a)  General rule.--The Procurement Code shall not apply to

21

this part or to development, operation, construction,

22

improvement, alteration or maintenance of a qualifying

23

transportation facility by a private entity. Contracts shall be

24

awarded and interim and comprehensive agreements shall be

25

entered into through use of a competitive process or by private

26

negotiation as provided in regulations promulgated pursuant to

27

section 9203(f) (relating to approval). Responsible public

28

entities and affected public entities shall not be required to

29

select the proposal with the lowest price offer or the highest

30

price offer, but may consider price as one factor in evaluating

- 42 -

 


1

the proposals received. Other factors that may be considered

2

include:

3

(1)  proposed cost of the qualifying transportation

4

facility;

5

(2)  general reputation, qualifications, industry

6

experience and financial capacity of the private entity;

7

(3)  proposed design, operation and feasibility of the

8

qualifying transportation facility;

9

(4)  eligibility of the qualifying transportation

10

facility for priority selection, review and documentation

11

time lines under the regulations promulgated pursuant to

12

section 9203(f);

13

(5)  local citizen and public entity comments;

14

(6)  benefits to the public;

15

(7)  the private entity's compliance with a minority

16

business enterprise participation plan or good faith effort

17

to comply with the goals of a plan;

18

(8)  the private entity's plans to employ local

19

contractors and residents;

20

(9)  the safety record of the private entity;

21

(10)  the ability of the qualifying transportation

22

facility to address the needs of Commonwealth, regional or

23

local transportation by improving safety, reducing

24

congestion, abating environmental pollution, advancing energy

25

efficiency or conservation, improving homeland security,

26

increasing capacity or enhancing economic efficiency; and

27

(11)  other criteria that the responsible public entity

28

and the affected public entity deem appropriate.

29

(b)  Specific exemption.--In no event shall a private entity,

30

a responsible public entity or an affected public entity be

- 43 -

 


1

subject to requirements of the act of May 1, 1913 (P.L.155,

2

No.104), referred to as the Separations Act, with regard to a

3

qualifying transportation facility which is the subject of an

4

interim agreement or a comprehensive agreement.

5

§ 9218.  Public-Private Transportation Partnership Fund.

6

(a)  Establishment.--There is established within the State

7

Treasury a special fund to be known as the Public-Private

8

Transportation Partnership Fund for the purposes enumerated in

9

this section. Interest and investment earnings on money in the

10

fund shall be retained in the fund. Money in the fund shall be

11

used for the purposes enumerated in subsection (c). Money in the

12

fund shall not lapse and is appropriated upon approval of the

13

Governor for the purposes enumerated in subsection (c).

14

(b)  Deposits to fund.--Money to be deposited in the fund

15

includes:

16

(1)  excess earnings as provided in section 9208(e)

17

(relating to comprehensive agreement);

18

(2)  monetary damages received by the responsible public

19

entity and the affected public entity for failure by the

20

private entity to comply with the terms of an interim

21

agreement or a comprehensive agreement;

22

(3)  payments made to the responsible public entity and

23

the affected public entity from any performance or payment

24

bond; and

25

(4)  any other money received by the responsible public

26

entity and the affected public entity and earmarked for

27

deposit into the fund pursuant to the terms of an interim

28

agreement or a comprehensive agreement.

29

(c)  Authorized uses.--Money in the fund shall be allocated

30

by majority vote of the transportation commission and may, upon

- 44 -

 


1

allocation, be used:

2

(1)  for maintenance, repair, construction,

3

reconstruction and operation of transportation facilities

4

available for use by the public and for which no toll, fee or

5

other charge is imposed for public use; or

6

(2)  by an affected public entity for transportation-

7

related purposes under a written agreement with the

8

responsible public entity as approved by majority vote of the

9

transportation commission.

10

(d)  Restrictions on transfers from fund.--Money in the fund

11

shall not be transferred to the General Fund or any other fund

12

or used for any purpose not specifically authorized in

13

subsection (c) unless the transfer or use is by statute approved

14

by a two-thirds vote of the General Assembly.

15

Section 2.  All acts and parts of acts are repealed to the

16

extent they are inconsistent with the provisions of 74 Pa.C.S.

17

Pt. V.

18

Section 3.  This act shall take effect as follows:

19

(1)  The following provisions shall take effect

20

immediately:

21

(i)  The addition of 74 Pa.C.S. § 9203(f) and (k).

22

(ii)  This section.

23

(2)  The remainder of this act shall take effect on the

24

earlier of:

25

(i)  120 days; or

26

(ii)  the date of publication of draft interim

27

regulations under 74 Pa.C.S. § 9203(f).

- 45 -

 


feedback