| |
|
| |
| 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 |
|
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. |
|
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 |
|
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 |
|
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. |
|
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 |
|
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 |
|
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 |
|
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 |
|
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 |
|
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 |
|
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 |
|
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 |
|
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 |
|
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. |
|
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 |
|
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 |
|
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 |
|
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 |
|
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 |
|
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 |
|
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 |
|
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 |
|
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 |
|
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, |
|
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 |
|
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 |
|
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, |
|
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. |
|
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 |
|
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 |
|
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 |
|
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 |
|
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 |
|
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, |
|
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 |
|
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. |
|
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 |
|
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 |
|
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. |
|
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 |
|
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 |
|
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 |
|
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). |
|