PRINTER'S NO. 844

THE GENERAL ASSEMBLY OF PENNSYLVANIA


HOUSE BILL

No. 555 Session of 2007


        INTRODUCED BY GEIST, MARKOSEK, PERZEL, McCALL, GERBER, BEAR,
           BENNINGHOFF, BEYER, BIANCUCCI, BOYD, CALTAGIRONE, CAPPELLI,
           CARROLL, CIVERA, COX, CURRY, DENLINGER, DePASQUALE, DERMODY,
           FRANKEL, GALLOWAY, GERGELY, GRELL, HENNESSEY, KILLION, LEACH,
           MARSICO, R. MILLER, MOYER, MUSTIO, PAYNE, PICKETT, PYLE,
           RAPP, REICHLEY, ROEBUCK, ROHRER, RUBLEY, SAYLOR, SCHRODER,
           SIPTROTH, SONNEY, SWANGER AND TURZAI, MARCH 19, 2007

        REFERRED TO COMMITTEE ON TRANSPORTATION, MARCH 19, 2007

                                     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

     1  Sec.
     2  9101.  Scope of part.
     3  9102.  Declaration of policy.
     4  9103.  Construction of part.
     5  § 9101.  Scope of part.
     6     This part relates to public-private transportation
     7  partnerships.
     8  § 9102.  Declaration of policy.
     9     (a)  Legislative findings.--The General Assembly finds and
    10  declares as follows:
    11         (1)  There exists a public need for the timely
    12     development and operation of transportation facilities within
    13     this Commonwealth which address the needs of Commonwealth,
    14     regional or local transportation by improving safety,
    15     reducing congestion, abating environmental pollution,
    16     advancing energy efficiency or conservation, improving
    17     homeland security and increasing capacity or enhancing
    18     economic efficiency.
    19         (2)  This public need may not be wholly satisfied through
    20     the use of currently existing methods of financing and
    21     procurement in which transportation facilities are developed
    22     or operated.
    23         (3)  Authorizing private entities to develop and operate
    24     transportation facilities may result in the availability of
    25     these transportation facilities to the public in a more
    26     timely, more efficient or less costly fashion, thereby
    27     serving the public safety and welfare.
    28     (b)  Intent.--It is the intent of this part:
    29         (1)  to encourage investment in this Commonwealth by
    30     private entities to assist in the development and operation
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     1     of transportation facilities; and
     2         (2)  to accomplish the goal under paragraph (1), to
     3     provide public entities and private entities with the
     4     greatest possible flexibility in contracting with each other
     5     for the provision of the public services which are the
     6     subject of this title.
     7  § 9103.  Construction of part.
     8     (a)  Liberal construction.--This part shall be liberally
     9  construed in conformity with and to accomplish section 9102
    10  (relating to declaration of policy).
    11     (b)  Sole authority.--This part provides public-private
    12  transportation partnership opportunities to public entities and
    13  private entities and shall be construed as the sole statutory
    14  authority enabling a public entity to participate with a private
    15  entity in a transportation-related contract, project or activity
    16  governed by this part.
    17                             CHAPTER 92
    18             PUBLIC-PRIVATE TRANSPORTATION PARTNERSHIPS
    19  Sec.
    20  9201.  Definitions.
    21  9202.  Prerequisite for operation.
    22  9203.  Approval.
    23  9204.  Service contracts.
    24  9205.  Transfer and dedication of public property.
    25  9206.  Powers, duties and liability of private entity.
    26  9207.  Interim agreement.
    27  9208.  Comprehensive agreement.
    28  9209.  Multiple affected public entities.
    29  9210.  Federal, Commonwealth and local assistance.
    30  9211.  Financing.
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     1  9212.  Material default; remedies.
     2  9213.  Eminent domain.
     3  9214.  Public utility crossings.
     4  9215.  Police powers; violations of law.
     5  9216.  Transfer of assets.
     6  9217.  Procurement.
     7  9218.  Public-Private Transportation Partnership Fund.
     8  § 9201.  Definitions.
     9     Subject to additional definitions contained in subsequent
    10  provisions of this part which are applicable to specific
    11  provisions of this part, the following words and phrases when
    12  used in this part shall have the meanings given to them in this
    13  section unless the context clearly indicates otherwise:
    14     "Affected jurisdiction."  A county, city, borough,
    15  incorporated town, township or local, regional or metropolitan
    16  transportation organization:
    17         (1)  in which all or a portion of a qualifying
    18     transportation facility is located; or
    19         (2)  which is directly affected by the qualifying
    20     transportation facility.
    21     "Affected public entity."  A public entity which owns a
    22  proposed qualifying transportation facility or a qualifying
    23  transportation facility, including, but not limited to:
    24         (1)  A metropolitan transportation authority under 74
    25     Pa.C.S. Ch. 17 (relating to metropolitan transportation
    26     authorities).
    27         (2)  The Delaware River Port Authority.
    28         (3)  The Delaware River Joint Toll Bridge Commission.
    29         (4)  A second class county port authority.
    30         (5)  The Pennsylvania Turnpike Commission.
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     1  The term does not include a Commonwealth agency unless
     2  specifically enumerated in this definition.
     3     "Commission."  The Pennsylvania Public Utility Commission.
     4     "Comprehensive agreement."  The comprehensive agreement
     5  entered into between a private entity and the responsible public
     6  entity or the affected public entity under section 9208
     7  (relating to comprehensive agreement).
     8     "Department."  The Department of Transportation of the
     9  Commonwealth.
    10     "Develop."  To plan, design, finance, lease, install,
    11  construct or expand.
    12     "Development."  Planning, designing, financing, leasing,
    13  installing, constructing or expanding.
    14     "Fund."  The Public-Private Transportation Partnership Fund
    15  established in section 9218 (relating to Public-Private
    16  Transportation Partnership Fund).
    17     "Highway."  A way or place open to the use of the public for
    18  purposes of vehicle traffic.
    19     "Interim agreement."  An agreement, including a memorandum of
    20  understanding or binding preliminary agreement, between a
    21  private entity and the responsible public entity or the affected
    22  public entity under section 9207 (relating to interim agreement)
    23  which provides for completion of studies and any other
    24  activities to advance the development or operation of a
    25  qualifying transportation facility.
    26     "Law enforcement officer."  An individual authorized by law
    27  to make arrests for violations of law.
    28     "Material default."  A default by a private entity in the
    29  performance of its duties under section 9206 (relating to
    30  powers, duties and liability of private entity) which:
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     1         (1)  jeopardizes adequate service to the public from a
     2     qualifying transportation facility; and
     3         (2)  remains unremedied after the responsible public
     4     entity or the affected public entity has provided notice to
     5     the private entity and a reasonable cure period has elapsed.
     6     "Multimodal transportation facility."  A transportation
     7  facility consisting of multiple modes of transportation.
     8     "Operate."  To finance, maintain, improve, equip, modify,
     9  repair, manage, run or control functioning.
    10     "Operation."  The act of financing, maintaining, improving,
    11  equipping, modifying, repairing, managing, running or
    12  controlling functioning.
    13     "Private entity."  Any individual, corporation, partnership,
    14  limited liability company, limited partnership, joint venture,
    15  business trust, public utility, nonprofit corporation or other
    16  business entity authorized to conduct business in this
    17  Commonwealth.
    18     "Procurement Code."  The provisions of 62 Pa.C.S. Pt. I
    19  (relating to Commonwealth Procurement Code).
    20     "Public entity."  The Commonwealth; any department, board,
    21  commission, authority or agency of the Commonwealth, whether or
    22  not subject to the policy supervision and control of the
    23  Governor; a political subdivision; and a local, regional or
    24  metropolitan transportation authority. The term does not include
    25  any court or other officer or agency of the unified judicial
    26  system or the General Assembly and its officers and agencies.
    27     "Public utility."  As defined in 66 Pa.C.S. § 102 (relating
    28  to definitions).
    29     "Qualifying transportation facility."  A transportation
    30  facility developed or operated by a private entity under this
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     1  part. The term includes a multimodal transportation facility.
     2     "Responsible public entity."  The Department of
     3  Transportation of the Commonwealth.
     4     "Revenue."  Money generated from or received in support of
     5  the development or operation of a qualifying transportation
     6  facility. The term includes: income; earnings; user fees; lease
     7  payments; allocations; Federal, Commonwealth and political
     8  subdivision appropriations; proceeds of bonds or notes; equity
     9  investments; service payments; Federal grants; and money from a
    10  Federal agency or instrumentality.
    11     "Service contract."  A contract entered into between a public
    12  entity and a private entity under section 9204 (relating to
    13  service contracts).
    14     "Service payments."  Payments to a private entity pursuant to
    15  a service contract.
    16     "Transportation commission."  The State Transportation
    17  Commission created in section 468 of the act of April 9, 1929
    18  (P.L.177, No.175), known as The Administrative Code of 1929.
    19     "Transportation facility."  Any highway, bridge, tunnel,
    20  overpass, ferry, airport, mass transportation facility, vehicle
    21  parking facility, port facility, railroad, guideway, street
    22  railway or similar facility used for the transportation of
    23  persons or goods. The term:
    24         (1)  Includes:
    25             (i)  A substantial enhancement, an improvement or an
    26         increase in capacity made to a facility listed in this
    27         definition.
    28             (ii)  Any building, structure, parking area,
    29         appurtenance and other property needed to operate a
    30         facility listed in this definition.
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     1             (iii)  A substantial enhancement, an improvement or
     2         an increase in capacity to a facility excluded under
     3         paragraph (2).
     4         (2)  Does not include a facility listed in this
     5     definition:
     6             (i)  which is available for use by the public on the
     7         effective date of this definition; and
     8             (ii)  for the use of which no toll, fee or charge is
     9         imposed on the public.
    10     "Transportation organization."  Any mass transportation,
    11  port, bridge, rail, regional planning or airport authority or
    12  commission organized under the laws of this Commonwealth or
    13  under an interstate compact or otherwise empowered to render,
    14  contract for or assist in the rendering of transportation
    15  service or transportation planning in a limited area in this
    16  Commonwealth, even though it may also render or assist in
    17  rendering transportation service or transportation planning in
    18  adjacent states.
    19     "User fees."  Rates, tolls, fees or other charges imposed by
    20  a private entity for use of all or a portion of a qualifying
    21  transportation facility pursuant to an interim agreement or a
    22  comprehensive agreement.
    23     "Vehicle."  A conveyance in or on which persons or property
    24  may be carried.
    25  § 9202.  Prerequisite for operation.
    26     A private entity seeking authorization under this part to
    27  develop or operate a transportation facility must obtain written
    28  approval from the responsible public entity and the affected
    29  public entity or written approval from the responsible public
    30  entity and deemed approval from the affected public entity under
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     1  section 9203 (relating to approval). A private entity may
     2  initiate the approval process by requesting approval under
     3  section 9203(a), or the responsible public entity, on its own
     4  initiative or jointly with the affected public entity, may
     5  request proposals under section 9203(b).
     6  § 9203.  Approval.
     7     (a)  Submission of proposals by private entities.--The
     8  following shall apply to the submission of proposals by private
     9  entities:
    10         (1)  A private entity may submit a proposal to the
    11     responsible public entity for approval to develop or operate
    12     a transportation facility. The proposal shall be accompanied
    13     by the following material and information unless waived by
    14     the responsible public entity as provided in regulations
    15     adopted under subsection (f):
    16             (i)  A topographic map of 1:2,000 or other
    17         appropriate scale indicating the location of the
    18         transportation facility or facilities.
    19             (ii)  A description of the transportation facility or
    20         facilities, including the conceptual design of the
    21         facility and all proposed interconnections with other
    22         transportation facilities.
    23             (iii)  The proposed date for development or operation
    24         of the transportation facility along with an estimate of
    25         the life cycle cost of the transportation facility as
    26         proposed.
    27             (iv)  A statement setting forth the method by which
    28         the private entity proposes to secure any real, personal
    29         or mixed property interests required for the
    30         transportation facility.
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     1             (v)  Information relating to the current
     2         transportation plans of each affected jurisdiction.
     3             (vi)  A list of all permits and approvals required
     4         for developing or operating improvements to the
     5         transportation facility from Federal, Commonwealth or
     6         local agencies and a projected schedule for obtaining the
     7         permits and approvals.
     8             (vii)  A list of public utility, railroad and cable
     9         television provider facilities that will be crossed by
    10         the transportation facility and a statement of the plans
    11         of the private entity to accommodate the crossings.
    12             (viii)  A statement setting forth the private
    13         entity's general plans for developing or operating the
    14         transportation facility, including identification of
    15         revenue or proposed debt or equity investment proposed by
    16         the private entity.
    17             (ix)  The names and addresses of the persons who may
    18         be contacted for further information concerning the
    19         proposal.
    20             (x)  Information on how the private entity's proposal
    21         will address the needs of Commonwealth, regional or local
    22         transportation by improving safety, reducing congestion,
    23         abating environmental pollution, advancing energy
    24         efficiency or conservation, improving homeland security,
    25         increasing capacity or enhancing economic efficiency.
    26             (xi)  A summary of the proposal.
    27             (xii)  Additional material and information as may
    28         reasonably be requested under regulations promulgated
    29         under subsection (f).
    30         (2)  Within five days following receipt of a proposal,
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     1     the responsible public entity shall provide a copy of the
     2     proposal to the transportation commission. Within 45 days
     3     following receipt of a proposal, the transportation
     4     commission may submit its comments on the proposal to the
     5     responsible public entity, which shall provide a copy of the
     6     commission's comments to the affected public entity and to
     7     each affected jurisdiction.
     8         (3)  The following shall apply:
     9             (i)  The responsible public entity shall determine if
    10         the proposal includes an affected public entity and
    11         shall, within five days following receipt of the
    12         proposal, provide each affected public entity with a copy
    13         of the summary submitted by the private entity, together
    14         with a written request for the affected public entity's
    15         comments and recommendations on the proposal.
    16             (ii)  The affected public entity's comments shall
    17         include whether the proposed qualifying transportation
    18         facility will address the needs of Commonwealth, regional
    19         or local transportation by improving safety, reducing
    20         congestion, abating environmental pollution, advancing
    21         energy efficiency or conservation, improving homeland
    22         security, increasing capacity or enhancing economic
    23         efficiency. The comments and recommendations of the
    24         affected public entity shall utilize the criteria
    25         provided in subsection (d) and any additional criteria
    26         specified in regulations promulgated under subsection (f)
    27         and shall be submitted to the responsible public entity
    28         and the transportation commission within 45 days
    29         following receipt of the responsible public entity's
    30         request for comments and recommendations.
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     1             (iii)  If the affected public entity fails to provide
     2         its comments and recommendations to the responsible
     3         public entity within the 45-day period specified in this
     4         paragraph or if there are multiple affected public
     5         entities, the affected public entity shall be deemed to
     6         have approved the proposal and, if the responsible public
     7         entity approves the proposal, shall cooperate fully in
     8         the completion, execution and implementation of any
     9         interim agreement or comprehensive agreement related to
    10         the proposal.
    11         (4)  The following shall apply:
    12             (i)  Within 10 days following receipt of a proposal,
    13         the responsible public entity shall provide a copy of the
    14         summary submitted by the private entity, together with a
    15         written notification of receipt of the proposal, to each
    16         affected jurisdiction. As part of its written
    17         notification, the responsible public entity shall
    18         identify each affected public entity and shall request
    19         that comments on the proposal be submitted by each
    20         affected jurisdiction. Within 30 days following receipt
    21         of a request from the responsible public entity, each
    22         affected jurisdiction shall submit its comments to the
    23         responsible public entity, each affected public entity
    24         and the transportation commission.
    25             (ii)  The affected jurisdiction's comments shall
    26         include whether the proposed qualifying transportation
    27         facility will address the needs of Commonwealth, regional
    28         or local transportation by improving safety, reducing
    29         congestion, abating environmental pollution, advancing
    30         energy efficiency or conservation, improving homeland
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     1         security, increasing capacity or enhancing economic
     2         efficiency.
     3         (5)  A written approval or rejection of the proposal
     4     shall be submitted by the responsible public entity to the
     5     private entity within 30 days following the end of all review
     6     periods provided under paragraphs (2), (3) and (4).
     7         (6)  The following shall apply:
     8             (i)  If the responsible public entity approves the
     9         private entity's proposal, the responsible public entity,
    10         or the affected public entity and the responsible public
    11         entity, jointly, may issue a request for proposals under
    12         section 9217 (relating to procurement) from other private
    13         entities for the development or operation of the
    14         transportation facility. The request for proposals shall
    15         include a requirement that a summary of the response be
    16         submitted.
    17             (ii)  Within five days following receipt of a
    18         response to a request for proposals, the responsible
    19         public entity shall submit the summary of the response to
    20         the transportation commission and to each affected
    21         jurisdiction, which shall have 15 days following receipt
    22         of the summary within which to provide comments to the
    23         responsible public entity and the affected public entity.
    24             (iii)  Within 30 days following the expiration of the
    25         transportation commission and affected jurisdiction
    26         review period, the responsible public entity shall
    27         provide written notification of its acceptance or
    28         rejection of the initial proposal and each response to
    29         the request for proposals to the private entity which
    30         submitted the initial proposal, each private entity which
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     1         responded to the request for proposals, the
     2         transportation commission, the affected public entity and
     3         each affected jurisdiction.
     4         (7)  The responsible public entity and the affected
     5     public entity may provide for payment to a private entity
     6     whose proposal or response to any subsequent request for
     7     proposals is not approved of an amount as reimbursement or
     8     partial reimbursement for costs incurred by the private
     9     entity in preparing the proposal or response, and, in return
    10     for this payment, the private entity shall grant to the
    11     responsible public entity and the affected public entity the
    12     right to use all or any portion of the proposal or the
    13     response, including the technologies, techniques, methods,
    14     processes and information contained in the project design.
    15     (b)  Issuance of request for proposals.--The following shall
    16  apply to issuance of request for proposals:
    17         (1)  The responsible public entity may, on its own
    18     initiative or at the request of an affected public entity,
    19     issue a request for proposals from private entities for the
    20     development or operation of transportation facilities. An
    21     affected public entity may only issue a request for proposals
    22     from private entities for the development or operation of
    23     transportation facilities jointly with the responsible public
    24     entity. The responsible public entity or the affected public
    25     entity shall not charge a fee to cover the costs of
    26     processing, reviewing and evaluating responses received to a
    27     request for proposals issued under this subsection.
    28         (2)  The following shall apply:
    29             (i)  The responsible public entity shall, on the date
    30         of issuance of a request for proposals, provide a copy of
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     1         the request for proposals to the transportation
     2         commission and to each affected jurisdiction. As part of
     3         the request for proposals, the responsible public entity
     4         shall require a private entity submitting a response to
     5         simultaneously submit a written summary of its response
     6         to the responsible public entity, to the affected public
     7         entity, to the transportation commission and to each
     8         affected jurisdiction identified in the request for
     9         proposals.
    10             (ii)  Within 30 days of receipt of a summary of a
    11         response from a private entity, each affected
    12         jurisdiction shall submit its written comments on the
    13         response to the responsible public entity, the affected
    14         public entity and the transportation commission. Any
    15         comments submitted by an affected jurisdiction must
    16         include an indication of whether the affected
    17         jurisdiction believes the proposed qualifying
    18         transportation facility will address the needs of
    19         Commonwealth, regional or local transportation by
    20         improving safety, reducing congestion, abating
    21         environmental pollution, advancing energy efficiency or
    22         conservation, improving homeland security, increasing
    23         capacity or enhancing economic efficiency.
    24             (iii)  The transportation commission shall have 15
    25         days following the expiration of the 30-day affected
    26         jurisdiction comment period provided in this paragraph
    27         within which to submit written comments on the response
    28         to the responsible public entity and the affected public
    29         entity.
    30         (3)  If a private entity's response is not approved, the
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     1     responsible public entity and the affected public entity may
     2     provide for payment of an amount as reimbursement or partial
     3     reimbursement for costs incurred by the private entity in
     4     preparing the response, and, in return for this payment, the
     5     private entity shall grant to the responsible public entity
     6     and the affected public entity the right to use all or a
     7     portion of the response, including the technologies,
     8     techniques, methods, processes and information contained in
     9     the project design.
    10     (c)  Private entity adverse interests.--The following shall
    11  apply:
    12         (1)  Except as provided in paragraph (2), a private
    13     entity which submits a proposal or a response to a request
    14     for proposals under subsection (a) or which submits a
    15     response to a request for proposals under subsection (b) and
    16     which is also a State advisor or a State consultant for the
    17     responsible public entity or an affected public entity shall
    18     not be deemed to be in violation of the act of July 19, 1957
    19     (P.L.1017, No.451), known as the State Adverse Interest Act,
    20     while engaging in any of the following activities:
    21             (i)  Preparing or submitting the proposal or response
    22         to a request for proposals.
    23             (ii)  Participating in any activities with the
    24         responsible public entity or the affected public entity
    25         related to the proposal or response to request for
    26         proposals.
    27             (iii)  Negotiating and entering into any contract,
    28         lease, interim agreement or comprehensive agreement with
    29         the responsible public entity or the affected public
    30         entity which results from the proposal or response to
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     1         request for proposals.
     2             (iv)  Engaging in other actions taken in furtherance
     3         of the purposes of this part.
     4         (2)  A private entity which submits a proposal or a
     5     response to a request for proposals shall be prohibited from
     6     providing advice to the responsible public entity and the
     7     affected public entity under subsection (d) on its proposal
     8     or a request for proposals for which it has submitted a
     9     response.
    10     (d)  Criteria for review.--The responsible public entity and
    11  the affected public entity may grant approval of the development
    12  or operation of the transportation facility as a qualifying
    13  transportation facility if both the responsible public entity
    14  and the affected public entity determine that it serves the
    15  public purpose of this part. The responsible public entity and
    16  the affected public entity may determine that the development or
    17  operation of the transportation facility as a qualifying
    18  transportation facility serves such public purpose if all of the
    19  following apply:
    20         (1)  There is a public need for the transportation
    21     facility the private entity proposes to develop or operate as
    22     a qualifying transportation facility.
    23         (2)  The transportation facility and the proposed
    24     interconnections with existing transportation facilities and
    25     the private entity's plans for development or operation of
    26     the qualifying transportation facility are, in the opinion of
    27     the responsible public entity and the affected public entity,
    28     reasonable and will address the needs of Commonwealth,
    29     regional or local transportation by improving safety,
    30     reducing congestion, addressing environmental concerns,
    20070H0555B0844                 - 17 -     

     1     advancing energy efficiency or conservation, improving
     2     homeland security, increasing capacity or enhancing economic
     3     efficiency.
     4         (3)  The estimated cost of the transportation facility is
     5     reasonable in relation to similar facilities.
     6         (4)  The private entity's plans will result in the timely
     7     development, operation or more efficient operation of the
     8     transportation facility.
     9         (5)  The private entity will agree to honor any existing
    10     collective bargaining agreement related to the qualifying
    11     transportation facility for the term of the agreement and
    12     will comply with the act of August 15, 1961 (P.L.987,
    13     No.442), known as the Pennsylvania Prevailing Wage Act, with
    14     regard to the development or operation of the qualifying
    15     transportation facility. In evaluating a proposal or response
    16     to a request for proposals, the responsible public entity and
    17     the affected public entity may rely upon internal staff
    18     reports prepared by personnel familiar with the operation of
    19     similar facilities or the advice of outside advisors or
    20     consultants having relevant experience. The responsible
    21     public entity and the affected public entity may request the
    22     advice and assistance of other public entities in the
    23     performance of their duties under this part.
    24     (e)  Fees.--The following shall apply to fees:
    25         (1)  The responsible public entity may charge a
    26     reasonable fee to cover the costs of processing, reviewing
    27     and evaluating a proposal submitted by a private entity or a
    28     subsequent response to a request for proposals under
    29     subsection (a), including reasonable attorney fees and fees
    30     for financial and other necessary advisors or consultants.
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     1     The fee to be charged by the responsible public entity shall
     2     include a reasonable reimbursement for costs incurred by the
     3     affected public entity for its review of a proposal or a
     4     response to a request for proposals. The responsible public
     5     entity shall annually publish a notice in the Pennsylvania
     6     Bulletin of the fee schedule for the review of proposals and
     7     responses to requests for proposals submitted by private
     8     entities under subsection (a).
     9         (2)  All fees collected under paragraph (1) shall be
    10     retained by the responsible public entity and the affected
    11     public entity and used as provided under paragraph (1) or for
    12     other purposes permitted under this part.
    13         (3)  No fee shall be imposed by the responsible public
    14     entity or any affected public entity for the cost of
    15     processing, reviewing and evaluating responses to any request
    16     for proposals under subsection (b).
    17     (f)  Regulations.--The following shall apply to regulations:
    18         (1)  In order to facilitate the implementation of this
    19     part and to provide one uniform procedure for submission and
    20     review of proposals submitted, issuance of a request for
    21     proposals and submission and review of responses to a request
    22     for proposals under subsection (a) and responses to requests
    23     for proposals under subsection (b), the responsible public
    24     entity shall promulgate regulations that include all of the
    25     following:
    26             (i)  A specific schedule for review of proposals or
    27         responses to requests for proposals by the responsible
    28         public entity and the affected public entity.
    29             (ii)  A process for alteration of that schedule by
    30         the responsible public entity and the affected public
    20070H0555B0844                 - 19 -     

     1         entity if changes are necessary because of the scope or
     2         complexity of proposals or responses received.
     3             (iii)  The process for receipt and review of
     4         competing proposals and responses to requests for
     5         proposals.
     6             (iv)  The type and amount of information that is
     7         necessary for adequate review of proposals or responses
     8         to requests for proposals in each stage of review.
     9             (v)  A prioritized documentation, review and
    10         selection process for qualifying transportation
    11         facilities that have approved or pending Federal and
    12         Commonwealth clearances, have secured significant right-
    13         of-way, have previously been allocated significant
    14         Federal or Commonwealth funding or exhibit other
    15         circumstances that could reasonably reduce the amount of
    16         time to develop or operate the qualifying transportation
    17         facility in accordance with the purpose of this part.
    18             (vi)  Action to be taken to protect confidential and
    19         proprietary information required under subsection (i).
    20             (vii)  Any other provisions which are required under
    21         this part or which the responsible public entity
    22         determines are necessary for implementation of this part.
    23         (2)  Within 120 days following the effective date of this
    24     subsection, the responsible public entity shall publish draft
    25     interim regulations in the Pennsylvania Bulletin for comment.
    26     The draft interim regulations shall have a 60-day public
    27     comment period. Within 90 days following the close of the
    28     public comment period on the draft interim regulations, the
    29     responsible public entity shall publish final interim
    30     regulations in the Pennsylvania Bulletin implementing this
    20070H0555B0844                 - 20 -     

     1     part. The draft interim regulations and the final interim
     2     regulations shall not be subject to section 201 of the act of
     3     July 31, 1968 (P.L.769, No.240), referred to as the
     4     Commonwealth Documents Law, nor to review or approval under
     5     the act of June 25, 1982 (P.L.633, No.181), known as the
     6     Regulatory Review Act. The final interim regulations shall
     7     expire on the earlier of the following:
     8             (i)  Two years after their publication in the
     9         Pennsylvania Bulletin.
    10             (ii)  The publication of final regulations pursuant
    11         to the Commonwealth Documents Law and the Regulatory
    12         Review Act.
    13     (g)  Requirement for interim agreement or comprehensive
    14  agreement.--The approval of the responsible public entity and
    15  the affected public entity shall be subject to the private
    16  entity's entering into an interim agreement or a comprehensive
    17  agreement with the responsible public entity and the affected
    18  public entity.
    19     (h)  Date for beginning construction or improvements.--In
    20  connection with approval of the development or operation of the
    21  transportation facility as a qualifying transportation facility,
    22  the responsible public entity and the affected public entity
    23  shall establish a date for the beginning of construction of or
    24  improvements to the qualifying transportation facility. The
    25  responsible public entity and the affected public entity may
    26  extend this date.
    27     (i)  Confidential and proprietary information.--The following
    28  shall apply:
    29         (1)  In the regulations promulgated under subsection (f),
    30     the responsible public entity shall specify appropriate
    20070H0555B0844                 - 21 -     

     1     action to be taken by the responsible public entity, the
     2     affected public entity, the affected jurisdiction and the
     3     transportation commission to protect confidential and
     4     proprietary information provided by the private entity.
     5         (2)  A proposal or a response to a request for proposals
     6     submitted by a private entity under subsection (a), a
     7     response submitted by a private entity to a request for
     8     proposals under subsection (b) and the summary of the
     9     proposal or response shall be confidential and, until a
    10     comprehensive agreement under section 9208 (relating to
    11     comprehensive agreement) is entered into by the private
    12     entity and the responsible public entity or the affected
    13     public entity, the proposal, the response and the summary
    14     shall not be subject to disclosure under the act of June 21,
    15     1957 (P.L.390, No.212), referred to as the Right-to-Know Law,
    16     or any other act. Upon the execution of a comprehensive
    17     agreement under section 9208, information contained in the
    18     proposal, the response and the summary shall be considered to
    19     be a public record for purposes of disclosure under the
    20     Right-to-Know Law.
    21     (j)  Federal credit assistance.--The responsible public
    22  entity and the affected public entity may also apply for,
    23  execute or endorse applications submitted by private entities to
    24  obtain Federal credit assistance for qualifying transportation
    25  facilities developed or operated under this part.
    26     (k)  Taxes.--All of the following shall apply:
    27         (1)  Revenue received by a private entity and all user
    28     fees shall continue to be subject to any tax, and to future
    29     increases in the rate of any tax, which was imposed by a
    30     political subdivision prior to the effective date of this
    20070H0555B0844                 - 22 -     

     1     subsection and which was otherwise applicable to the revenue
     2     and user fees.
     3         (2)  No new tax may be imposed by a political subdivision
     4     on the revenue received by a private entity or on user fees.
     5     (l)  Definitions.--As used in this section, the following
     6  words and phrases shall have the meanings given to them in this
     7  subsection:
     8     "State advisor."  As defined in section 2 of the act of July
     9  19, 1957 (P.L.1017, No.451), known as the State Adverse Interest
    10  Act.
    11     "State consultant."  As defined in section 2 of the act of
    12  July 19, 1957 (P.L.1017, No.451), known as the State Adverse
    13  Interest Act.
    14  § 9204.  Service contracts.
    15     In addition to any authority otherwise conferred by law, a
    16  public entity may contract with a private entity for
    17  transportation services to be provided by a qualifying
    18  transportation facility in exchange for service payments and
    19  other consideration as the public entity may deem appropriate.
    20  § 9205.  Transfer and dedication of public property.
    21     (a)  Powers.--Except for an ownership interest and subject to
    22  the provisions of this part, a public entity may transfer a
    23  real, personal or mixed property interest it has in a qualifying
    24  transportation facility to a private entity for such
    25  consideration as the public entity and the private entity may
    26  agree upon.
    27     (b)  Consideration.--Consideration under subsection (a) may
    28  include the agreement of the private entity to operate the
    29  qualifying transportation facility.
    30     (c)  Interests.--Except for an ownership interest, the real,
    20070H0555B0844                 - 23 -     

     1  personal or mixed property interests that the public entity may
     2  transfer to the private entity under this section may include
     3  licenses, leaseholds, franchises, easements or any other right
     4  or interest in the qualifying transportation facility which the
     5  public entity deems appropriate.
     6     (d)  Additional property.--Subject to the provisions of this
     7  part, the private entity may acquire, construct and purchase
     8  additional real, personal and mixed property and incorporate the
     9  additional property into the qualifying transportation facility
    10  if, upon the incorporation, all ownership interests in the
    11  property are transferred and dedicated to and vested in the
    12  public entity, for such consideration as the public entity and
    13  the private entity may agree, with the private entity retaining
    14  the property interests other than an ownership interest.
    15     (e)  Definition.--As used in this section the term "ownership
    16  interest" means fee simple title and reversionary interest in
    17  the real property and similar title and rights in the personal
    18  and mixed property constituting the qualifying transportation
    19  facility.
    20  § 9206.  Powers, duties and liability of private entity.
    21     (a)  General powers.--A private entity shall have all power
    22  allowed by law generally to a private entity having the same
    23  form of organization as the private entity and shall have the
    24  power to develop or operate the qualifying transportation
    25  facility, impose user fees and enter into service contracts in
    26  connection with the use of the qualifying transportation
    27  facility. No tolls or user fees may be imposed by the private
    28  entity without the necessary Federal, Commonwealth or local
    29  approvals and as provided in the interim agreement or the
    30  comprehensive agreement.
    20070H0555B0844                 - 24 -     

     1     (b)  Right to lease, use, develop or operate qualifying
     2  transportation facility.--A private entity may lease or acquire
     3  any other right to use or develop or operate the qualifying
     4  transportation facility. No interim agreement, comprehensive
     5  agreement, lease or contract involving real property of a
     6  qualifying transportation facility shall be subject to the
     7  realty transfer tax imposed under Article XI-C or XI-D of the
     8  act of March 4, 1971 (P.L.6, No.2), known as the Tax Reform Code
     9  of 1971, or under the act of December 31, 1965 (P.L.1257,
    10  No.511), known as The Local Tax Enabling Act.
    11     (c)  Canals and waterways.--Subject to applicable permit
    12  requirements, a private entity shall have the authority to cross
    13  any canal or navigable watercourse if the crossing does not
    14  unreasonably interfere with then-current navigation and use of
    15  the waterway.
    16     (d)  Operation of qualifying transportation facility.--In
    17  operating the qualifying transportation facility, a private
    18  entity may do all of the following:
    19         (1)  Make classifications according to reasonable
    20     categories for assessment of user fees.
    21         (2)  Make and enforce, with the consent of the
    22     responsible public entity or the affected public entity,
    23     reasonable rules to the same extent that the responsible
    24     public entity or the affected public entity may make and
    25     enforce rules with respect to a similar transportation
    26     facility.
    27     (e)  Duties.--The private entity shall do all of the
    28  following:
    29         (1)  Develop or operate, in accordance with the
    30     provisions of the interim agreement or the comprehensive
    20070H0555B0844                 - 25 -     

     1     agreement, the qualifying transportation facility in a manner
     2     that meets the standards of the responsible public entity or
     3     the affected public entity for similar transportation
     4     facilities operated and maintained by the responsible public
     5     entity or the affected public entity.
     6         (2)  Keep the qualifying transportation facility open for
     7     use by the members of the public, in accordance with the
     8     terms and conditions of the interim or comprehensive
     9     agreement, after its initial opening upon payment of the
    10     applicable user fees or service payments. The qualifying
    11     transportation facility may be temporarily closed because of
    12     emergencies or, with the consent of the responsible public
    13     entity or the affected public entity, to protect the safety
    14     of the public or for reasonable construction or maintenance
    15     procedures.
    16         (3)  Maintain or provide by contract for the maintenance
    17     of the qualifying transportation facility.
    18         (4)  Cooperate with the responsible public entity or the
    19     affected public entity in establishing any interconnection
    20     with the qualifying transportation facility requested by the
    21     responsible public entity or the affected public entity.
    22         (5)  Comply with the provisions of the interim or
    23     comprehensive agreement and any service contract.
    24     (f)  Liability.--In recognition of the public benefit derived
    25  from a private entity's development or operation of a qualifying
    26  transportation facility, a private entity which develops or
    27  operates a qualifying transportation facility shall not be
    28  subject to civil liability that arises due to the injury or
    29  death of an individual using the qualifying transportation
    30  facility, unless the injury or death results from an act or
    20070H0555B0844                 - 26 -     

     1  omission of the private entity constituting gross negligence,
     2  recklessness or intentional misconduct.
     3  § 9207.  Interim agreement.
     4     (a)  Provisions.--Prior to or in connection with the
     5  negotiation of the comprehensive agreement as provided under
     6  section 9208 (relating to comprehensive agreement), the
     7  responsible public entity or the affected public entity may
     8  enter into an interim agreement with a private entity proposing
     9  the development or operation of the proposed qualifying
    10  transportation facility. The interim agreement shall require a
    11  private entity, for the term of the interim agreement, to
    12  provide the responsible public entity or the affected public
    13  entity with periodic reports and audits related to disclosure,
    14  internal control and performance and financial accounting. The
    15  periodic reports and audits shall be prepared by an independent
    16  consulting or certified public accounting firm engaged by the
    17  private entity and shall be made available by the responsible
    18  public entity or the affected public entity for public
    19  inspection and copying under the act of June 21, 1957 (P.L.390,
    20  No.212), referred to as the Right-to-Know Law. The interim
    21  agreement may provide for all of the following:
    22         (1)  Permitting the private entity to commence activities
    23     for which it may be compensated relating to the proposed
    24     qualifying transportation facility, including project
    25     planning and development, advance right-of-way acquisition,
    26     design and engineering, environmental analysis and
    27     mitigation, survey, conducting transportation and revenue
    28     studies and ascertaining the availability of financing for
    29     the proposed qualifying transportation facility or
    30     facilities.
    20070H0555B0844                 - 27 -     

     1         (2)  Establishing the process and timing of the
     2     negotiation of the comprehensive agreement.
     3         (3)  Containing any other provisions related to any
     4     aspect of the development or operation of a qualifying
     5     transportation facility that the parties may deem
     6     appropriate.
     7     (b)  Multiple private entities.--Notwithstanding any other
     8  provision of this part, the responsible public entity or the
     9  affected public entity may enter into an interim agreement with
    10  multiple private entities if the responsible public entity or
    11  the affected public entity determines in writing that it is in
    12  the public interest to do so. The written determination may not
    13  take effect until a copy is provided to the transportation
    14  commission and is published as a notice in the Pennsylvania
    15  Bulletin.
    16  § 9208.  Comprehensive agreement.
    17     (a)  Provisions.--Prior to developing or operating the
    18  qualifying transportation facility, a private entity shall enter
    19  into a comprehensive agreement with the responsible public
    20  entity or the affected public entity. The comprehensive
    21  agreement shall, as appropriate, provide for all of the
    22  following:
    23         (1)  Delivery of performance and payment bonds in
    24     connection with the development or operation of the
    25     qualifying transportation facility, in the forms and amounts
    26     satisfactory to the responsible public entity or the affected
    27     public entity.
    28         (2)  Review of plans for the development or operation of
    29     the qualifying transportation facility by the responsible
    30     public entity or the affected public entity and approval by
    20070H0555B0844                 - 28 -     

     1     the responsible public entity or the affected public entity
     2     if the plans conform to standards acceptable to the
     3     responsible public entity or the affected public entity.
     4         (3)  Periodic inspection of construction of or
     5     improvements to the qualifying transportation facility by the
     6     responsible public entity or the affected public entity to
     7     ensure that they conform to the standards acceptable to the
     8     responsible public entity or the affected public entity.
     9         (4)  Maintenance of a policy of public liability
    10     insurance, copies of which shall be filed with the
    11     responsible public entity or the affected public entity,
    12     accompanied by proofs of coverage, or self-insurance, each in
    13     form and amount satisfactory to the responsible public entity
    14     or the affected public entity and reasonably sufficient to
    15     insure coverage of tort liability to the public and employees
    16     and to enable the continued operation of the qualifying
    17     transportation facility.
    18         (5)  Periodic monitoring of the maintenance practices of
    19     the private entity by the responsible public entity or the
    20     affected public entity and the taking of actions as the
    21     responsible public entity or the affected public entity finds
    22     appropriate to ensure that the qualifying transportation
    23     facility is properly maintained.
    24         (6)  Reimbursement to be paid to the responsible public
    25     entity or the affected public entity for services provided by
    26     the responsible public entity or the affected public entity.
    27         (7)  Filing of appropriate financial statements in a form
    28     acceptable to the responsible public entity or the affected
    29     public entity on a periodic basis.
    30         (8)  Compensation to the private entity, which may
    20070H0555B0844                 - 29 -     

     1     include one or a combination of a reasonable development fee,
     2     a reasonable maximum rate of return on investment or
     3     reimbursement of development expenses in the event of
     4     termination for convenience by the responsible public entity
     5     or the affected public entity, as agreed upon between the
     6     responsible public entity or the affected public entity and
     7     the private entity.
     8         (9)  The date of termination of the private entity's
     9     authority and duties under this part and transfer to the
    10     responsible public entity or the affected public entity.
    11         (10)  Guaranteed cost and completion guarantees related
    12     to the development or operation of the qualifying
    13     transportation facility and payment of damages for failure to
    14     meet the completion guarantee.
    15         (11)  Submission, on at least an annual basis, by the
    16     private entity to the responsible public entity or the
    17     affected public entity of reports and audits related to
    18     disclosure, internal control and performance and financial
    19     accounting. The reports and audits shall be prepared by an
    20     independent consulting or certified public accounting firm
    21     engaged by the private entity and shall be made available by
    22     the responsible public entity or the affected public entity
    23     for public inspection and copying under the act of June 21,
    24     1957 (P.L.390, No.212), referred to as the Right-to-Know Law.
    25     (b)  User fees.--The following shall apply:
    26         (1)  The comprehensive agreement shall provide for user
    27     fees as may be established by agreement of the parties.
    28         (2)  User fees shall be set at a level that takes into
    29     account lease payments, service payments and compensation to
    30     the private entity or as specified in the comprehensive
    20070H0555B0844                 - 30 -     

     1     agreement.
     2         (3)  A copy of any service contract shall be filed with
     3     the responsible public entity or the affected public entity.
     4         (4)  A schedule of the current user fees shall be
     5     provided by the private entity to the responsible public
     6     entity, the affected public entity and each affected
     7     jurisdiction when initially imposed and whenever changed and
     8     shall be made available by the private entity to any member
     9     of the public on request.
    10         (5)  In negotiating user fees under this section, the
    11     parties shall establish fees that are the same for persons
    12     using the qualifying transportation facility under like
    13     conditions, except as required by agreement between the
    14     parties to preserve capacity and prevent congestion on the
    15     qualifying transportation facility.
    16         (6)  The execution of the comprehensive agreement or any
    17     amendment to the comprehensive agreement shall constitute
    18     conclusive evidence that the user fees provided in the
    19     comprehensive agreement comply with this part.
    20         (7)  User fees established in the comprehensive agreement
    21     as a source of revenue may be in addition to or in lieu of
    22     service payments.
    23     (c)  Grants and loans.--In the comprehensive agreement, the
    24  responsible public entity or the affected public entity may
    25  agree to make grants or loans to the private entity for the
    26  development or operation of the qualifying transportation
    27  facility from amounts received from the Federal Government or
    28  any of its agencies or instrumentalities.
    29     (d)  Additional provisions.--The following shall apply:
    30         (1)  The comprehensive agreement shall incorporate the
    20070H0555B0844                 - 31 -     

     1     duties of the private entity under this part and may contain
     2     other terms and conditions as the responsible public entity
     3     or the affected public entity determines serve the public
     4     purpose of this part.
     5         (2)  The comprehensive agreement may contain provisions
     6     under which the responsible public entity or the affected
     7     public entity agrees to provide notice of default and cure
     8     rights for the benefit of the private entity and the persons
     9     specified in the comprehensive agreement as providing
    10     financing for the qualifying transportation facility.
    11         (3)  The comprehensive agreement may contain other lawful
    12     terms and conditions to which the private entity and the
    13     responsible public entity or the affected public entity
    14     mutually agree, including provisions regarding unavoidable
    15     delays or provisions providing for a loan of public funds for
    16     the development or operation of one or more qualifying
    17     transportation facilities.
    18     (e)  Excess earnings.--The comprehensive agreement shall
    19  provide for the distribution of any earnings in excess of the
    20  maximum rate of return as negotiated in the comprehensive
    21  agreement. Excess earnings may be distributed to the fund
    22  established under section 9218 (relating to Public-Private
    23  Transportation Partnership Fund) or to the private entity for
    24  debt reduction.
    25     (f)  Amendment.--Any changes in the terms of the
    26  comprehensive agreement as may be agreed upon by the parties
    27  shall be added to the comprehensive agreement by written
    28  amendment.
    29     (g)  Multiple private entities.--Notwithstanding any other
    30  provision of this part, the responsible public entity or the
    20070H0555B0844                 - 32 -     

     1  affected public entity may enter into a comprehensive agreement
     2  with multiple private entities if the responsible public entity
     3  or the affected public entity determines in writing that it is
     4  in the public interest to do so. The written determination may
     5  not take effect until a copy is provided to the transportation
     6  commission and is published as a notice in the Pennsylvania
     7  Bulletin.
     8     (h)  Phased development and operation.--The comprehensive
     9  agreement may provide for the development or operation of phases
    10  or segments of the qualifying transportation facility.
    11  § 9209.  Multiple affected public entities.
    12     (a)  Private entity proposals.--If a private entity submits a
    13  proposal pursuant to section 9203(a) (relating to approval) to
    14  develop or operate a qualifying transportation facility that may
    15  require approval by the responsible public entity and more than
    16  one affected public entity, representatives of each of the
    17  affected public entities shall convene and determine which
    18  affected public entity shall serve as the coordinating affected
    19  public entity. The determination shall occur within ten days of
    20  the receipt of the summary of the proposal by the respective
    21  affected public entities. If the affected public entities cannot
    22  reach agreement on which affected public entity will serve as
    23  the coordinating affected public entity within the allotted ten-
    24  day period, the responsible public entity shall designate one of
    25  the affected public entities to serve as the coordinating
    26  affected public entity.
    27     (b)  Comments and review.--The coordinating affected public
    28  entity shall be subject to the requirements of section
    29  9203(a)(3) for completion of its review and submission of its
    30  comments and recommendations, except that the coordinating
    20070H0555B0844                 - 33 -     

     1  affected public entity may submit a written request to the
     2  responsible public entity requesting approval of an extension of
     3  up to 20 days for completion of its review and submission of its
     4  recommendations. If the coordinating affected public entity
     5  fails to provide its comments and recommendations to the
     6  responsible public entity within the 45-day period specified in
     7  section 9203(a)(3) or any extension of that period granted by
     8  the responsible public entity, all affected public entities on
     9  whose behalf the coordinating affected public entity was
    10  designated to act shall be deemed to have approved the proposal
    11  and, if the responsible public entity approves the proposal,
    12  shall cooperate fully in completion, execution and
    13  implementation of any interim agreement or comprehensive
    14  agreement related to the proposal.
    15     (c)  Request for proposals.--If a request for proposals is
    16  issued pursuant to section 9203(b) and the issuance includes
    17  more than one affected public entity, the responsible public
    18  entity shall request that representatives of each of the
    19  affected public entities convene and determine which affected
    20  public entity shall serve as the coordinating affected public
    21  entity. The determination of which affected public entity shall
    22  serve as the coordinating affected public entity shall be made
    23  prior to issuance of a request for proposals. If the affected
    24  public entities cannot reach agreement on the designation of a
    25  coordinating affected public entity within ten days of receipt
    26  of a written request from the responsible public entity to
    27  convene and make a designation, the responsible public entity
    28  shall designate one of the affected public entities to serve as
    29  the coordinating affected public entity.
    30     (d)  Action following determination.--Once a determination
    20070H0555B0844                 - 34 -     

     1  has been made in accordance with subsection (a), (b) or (c), the
     2  responsible public entity, the coordinating affected public
     3  entity and the private entity shall proceed in accordance with
     4  this part.
     5  § 9210.  Federal, Commonwealth and local assistance.
     6     (a)  Obtaining assistance.--The responsible public entity and
     7  the affected public entity may take any action to obtain
     8  Federal, Commonwealth or local assistance for a qualifying
     9  transportation facility that serves the public purpose of this
    10  part and may enter into any contracts required to receive
    11  Federal assistance. Funds received from the Commonwealth, other
    12  than grant or loan funds provided pursuant to statute, or from
    13  the Federal Government or a Federal agency or instrumentality
    14  shall be subject to appropriation by the General Assembly. The
    15  responsible public entity and the affected public entity may
    16  determine that it serves the public purpose of this part for all
    17  or any portion of the costs of a qualifying transportation
    18  facility to be paid, directly or indirectly, from the proceeds
    19  of a grant or loan made by the Federal, Commonwealth or local
    20  government or a government agency or instrumentality.
    21     (b)  Use of grants and loans.--The responsible public entity
    22  and the affected public entity may agree to make grants or loans
    23  for the development or operation of the qualifying
    24  transportation facility from amounts received from the Federal,
    25  Commonwealth or local government or a government agency or
    26  instrumentality.
    27     (c)  Pledge of Commonwealth full faith and credit.--Nothing
    28  in this part or in an interim or comprehensive agreement entered
    29  into pursuant to this part shall be deemed to enlarge, diminish
    30  or affect the authority otherwise possessed by the responsible
    20070H0555B0844                 - 35 -     

     1  public entity and the affected public entity to take action that
     2  would impact the debt capacity of the Commonwealth or the
     3  affected jurisdictions, except that in no event shall any debt
     4  financing for a qualifying transportation facility pledge the
     5  full faith and credit of the Commonwealth for the payment of
     6  debt and that any debt incurred for financing of a qualifying
     7  transportation facility shall be payable solely from one or a
     8  combination of:
     9         (1)  revenue for the qualifying transportation facility;
    10         (2)  a pledge of, security interest in or lien on grants,
    11     loans or other funds received by or provided by the private
    12     entity, the affected public entity or an affected
    13     jurisdiction; or
    14         (3)  a pledge of, security interest in or lien on real,
    15     personal or mixed property owned by the private entity.
    16  § 9211.  Financing.
    17     (a)  General rule.--Except as provided in section 9210(c)
    18  (relating to Federal, Commonwealth and local assistance), any
    19  financing of a qualifying transportation facility may be in
    20  amounts and upon terms and conditions as determined by the
    21  parties to the interim or comprehensive agreement.
    22     (b)  Exception.--Without limiting the generality of
    23  subsection (a), the private entity, the responsible public
    24  entity, the affected public entity and an affected jurisdiction
    25  may propose to utilize any and all money that may be available
    26  to them and may, to the fullest extent permitted by applicable
    27  law and subject to the limitations of section 9210(c), issue
    28  debt, equity or other securities or obligations, enter into
    29  leases and grant and loan agreements, access any designated
    30  transportation trust funds, borrow or accept grants from any
    20070H0555B0844                 - 36 -     

     1  Commonwealth program and secure any financing with a pledge of,
     2  security interest in or lien on, any or all of the revenue from
     3  the qualifying transportation facility, money from any grants,
     4  loans or other funds received by or provided by the private
     5  entity, the affected public entity or an affected jurisdiction,
     6  and any real, personal or mixed property owned by the private
     7  entity.
     8  § 9212.  Material default; remedies.
     9     (a)  Remedies.--Upon the occurrence and during the
    10  continuation of material default, the responsible public entity
    11  or the affected public entity may exercise the following
    12  remedies:
    13         (1)  The responsible public entity or the affected public
    14     entity may elect to take over the qualifying transportation
    15     facility and shall succeed to all of the right, title and
    16     interest in the qualifying transportation facility, subject
    17     to liens on revenue previously granted by the private entity
    18     to a person providing financing for the transportation
    19     facility.
    20         (2)  The responsible public entity or the affected public
    21     entity may terminate the interim or comprehensive agreement
    22     and exercise any other rights and remedies which may be
    23     available to it at law or in equity.
    24         (3)  The responsible public entity or the affected public
    25     entity may make or cause to be made any appropriate claims
    26     under the performance or payment bonds required by section
    27     9208 (relating to comprehensive agreement).
    28     (b)  Exercise of remedies.--If the responsible public entity
    29  or the affected public entity elects to take over a qualifying
    30  transportation facility under subsection (a), the responsible
    20070H0555B0844                 - 37 -     

     1  public entity or the affected public entity may develop or
     2  operate the qualifying transportation facility, impose user fees
     3  for the use of the facility and comply with service contracts as
     4  if the responsible public entity or the affected public entity
     5  were the private entity. Revenue subject to a lien shall be
     6  collected for the benefit of, and paid to, secured parties as
     7  their interests may appear and to the extent necessary to
     8  satisfy the private entity's obligations to the secured parties,
     9  including the maintenance of reserves, and the liens shall be
    10  correspondingly reduced and, when paid off, released. Before any
    11  payments to, or for the benefit of, secured parties, the
    12  responsible public entity or the affected public entity may use
    13  revenue to pay current operation and maintenance costs of the
    14  qualifying transportation facility or facilities, including
    15  compensation to the responsible public entity or the affected
    16  public entity for its services in operating and maintaining the
    17  qualifying transportation facility. Remaining revenue after all
    18  payments for operation and maintenance of the qualifying
    19  transportation facility and all payments to or for the benefit
    20  of secured parties shall be paid to the private entity, subject
    21  to the negotiated maximum rate of return. The right to receive
    22  the payment shall be considered just compensation for the
    23  qualifying transportation facility. The full faith and credit of
    24  the Commonwealth shall not be pledged to secure any financing of
    25  the private entity by the election to take over the qualifying
    26  transportation facility. Assumption of operation of the
    27  qualifying transportation facility shall not obligate the
    28  responsible public entity or the affected public entity to pay
    29  any obligation of the private entity from sources other than
    30  revenue.
    20070H0555B0844                 - 38 -     

     1  § 9213.  Eminent domain.
     2     (a)  Exercise of eminent domain.--At the request of the
     3  private entity, the responsible public entity and the affected
     4  public entity may exercise the right of eminent domain for the
     5  purpose of acquiring any lands or estates or interests therein
     6  to the extent permitted by laws governing eminent domain and to
     7  the extent that the responsible public entity or the affected
     8  public entity finds that the action serves the public purpose of
     9  this part. Any amounts to be paid in any such eminent domain
    10  proceeding shall be paid by the private entity.
    11     (b)  Exercise against qualifying transportation facility.--
    12  Except as provided in subsection (a), until the responsible
    13  public entity or the affected public entity, after notice to the
    14  private entity and the secured parties as may appear in the
    15  private entity's records and an opportunity for hearing, has
    16  obtained a final declaratory judgment that a material default
    17  has occurred and is continuing, the power of eminent domain may
    18  not be exercised against a qualifying transportation facility.
    19     (c)  Exercise following declaratory judgment.--After the
    20  entry of a final declaratory judgment, the responsible public
    21  entity or the affected public entity having the power of eminent
    22  domain under the laws of this Commonwealth may exercise the
    23  power of eminent domain, in lieu of or at any time after taking
    24  over the qualifying transportation facility pursuant to section
    25  9212(a)(1) (relating to material default; remedies), in order to
    26  acquire the qualifying transportation facility or facilities.
    27  Nothing in this part shall be construed to limit the exercise of
    28  the power of eminent domain by the responsible public entity or
    29  the affected public entity against a qualifying transportation
    30  facility after the entry of a final declaratory judgment
    20070H0555B0844                 - 39 -     

     1  pursuant to subsection (b). Any person that has provided
     2  financing for the qualifying transportation facility and the
     3  private entity, to the extent of its capital investment, may
     4  participate in the eminent domain proceedings with the standing
     5  of a property owner.
     6  § 9214.  Public utility crossings.
     7     A private entity and each public utility, railroad and cable
     8  television provider whose facilities are to be crossed or
     9  affected shall cooperate fully with each other in planning and
    10  arranging the manner of the crossing or relocation of the
    11  facilities. Any entity possessing the power of eminent domain is
    12  expressly granted authority to utilize such powers to the extent
    13  permitted by laws governing eminent domain in connection with
    14  the moving or relocation of facilities to be crossed by the
    15  qualifying transportation facility or that must be relocated to
    16  the extent that such moving or relocation is made necessary or
    17  desirable by construction of or improvements to the qualifying
    18  transportation facility, which shall be construed to include
    19  construction of or improvements to temporary facilities for the
    20  purpose of providing service during the period of construction
    21  or improvement. If the private entity and any public utility,
    22  railroad and cable television provider are unable to agree upon
    23  a plan for a crossing or relocation, the commission may
    24  determine the manner in which the crossing or relocation shall
    25  be accomplished and shall determine any damages due as a result
    26  of the crossing or relocation. The commission may employ expert
    27  engineers to examine the location and plans for the crossing or
    28  relocation, hear objections, consider modifications and make
    29  recommendations to the commission, in which case the cost of the
    30  expert shall be borne by the private entity. Any amount to be
    20070H0555B0844                 - 40 -     

     1  paid for a crossing or for construction of, moving or relocating
     2  facilities shall be paid by the private entity or any other
     3  person who is contractually responsible to make the payment
     4  under an interim or comprehensive agreement or any other
     5  contract, license or permit. The commission shall make a
     6  determination within 90 days of notification by the private
     7  entity that the qualifying transportation facility will cross
     8  public utilities subject to the commission's jurisdiction.
     9  § 9215.  Police powers; violations of law.
    10     (a)  Powers and jurisdiction.--All law enforcement officers
    11  of the Commonwealth and each affected jurisdiction shall have
    12  the same powers and jurisdiction within the limits of a
    13  qualifying transportation facility as they have in their
    14  respective areas of jurisdiction, and law enforcement officers
    15  shall have access to the qualifying transportation facility at
    16  any time for the purpose of exercising their law enforcement
    17  powers and jurisdiction. The grant of authority in this
    18  subsection does not extend to the private offices, buildings,
    19  garages and other improvements of the private entity to any
    20  greater degree than the police power extends to any other
    21  private buildings and improvements.
    22     (b)  Enforcement of traffic laws.--To the extent the
    23  qualifying transportation facility is a highway, bridge, tunnel,
    24  overpass or similar transportation facility for motor vehicles,
    25  the traffic and motor vehicle laws of this Commonwealth or, if
    26  applicable, any local jurisdiction shall be the same as those
    27  applying to conduct on similar transportation facilities in this
    28  Commonwealth or the local jurisdiction. Punishment for offenses
    29  shall be as prescribed by law for conduct occurring on similar
    30  transportation facilities in this Commonwealth or the local
    20070H0555B0844                 - 41 -     

     1  jurisdiction.
     2     (c)  Payment of costs.--A private entity shall be responsible
     3  for the payment of all costs associated with the provision of
     4  law enforcement services pursuant to subsections (a) and (b)
     5  within the limits of a qualifying transportation facility.
     6     (d)  Imposition, collection and disposition of fines.--Fines
     7  imposed by law enforcement officers for violations occurring
     8  within the limits of a qualifying transportation facility shall
     9  be imposed, collected, distributed and governed as otherwise
    10  provided by applicable law.
    11  § 9216.  Transfer of assets.
    12     The responsible public entity or the affected public entity
    13  shall terminate the private entity's authority and duties under
    14  this part on the date set forth in the interim or comprehensive
    15  agreement. Upon termination, the authority and duties of the
    16  private entity under this part shall cease, and all property,
    17  real, personal and mixed, constituting the qualifying
    18  transportation facility shall be transferred to the responsible
    19  public entity or the affected public entity, if any.
    20  § 9217.  Procurement.
    21     (a)  General rule.--The Procurement Code shall not apply to
    22  this part or to development, operation, construction,
    23  improvement, alteration or maintenance of a qualifying
    24  transportation facility by a private entity. Contracts shall be
    25  awarded and interim and comprehensive agreements shall be
    26  entered into through use of a competitive process or by private
    27  negotiation as provided in regulations promulgated pursuant to
    28  section 9203(f) (relating to approval). Responsible public
    29  entities and affected public entities shall not be required to
    30  select the proposal with the lowest price offer or the highest
    20070H0555B0844                 - 42 -     

     1  price offer, but may consider price as one factor in evaluating
     2  the proposals received. Other factors that may be considered
     3  include:
     4         (1)  proposed cost of the qualifying transportation
     5     facility;
     6         (2)  general reputation, qualifications, industry
     7     experience and financial capacity of the private entity;
     8         (3)  proposed design, operation and feasibility of the
     9     qualifying transportation facility;
    10         (4)  eligibility of the qualifying transportation
    11     facility for priority selection, review and documentation
    12     time lines under the regulations promulgated pursuant to
    13     section 9203(f);
    14         (5)  local citizen and public entity comments;
    15         (6)  benefits to the public;
    16         (7)  the private entity's compliance with a minority
    17     business enterprise participation plan or good faith effort
    18     to comply with the goals of a plan;
    19         (8)  the private entity's plans to employ local
    20     contractors and residents;
    21         (9)  the safety record of the private entity;
    22         (10)  the ability of the qualifying transportation
    23     facility to address the needs of Commonwealth, regional or
    24     local transportation by improving safety, reducing
    25     congestion, abating environmental pollution, advancing energy
    26     efficiency or conservation, improving homeland security,
    27     increasing capacity or enhancing economic efficiency; and
    28         (11)  other criteria that the responsible public entity
    29     and the affected public entity deem appropriate.
    30     (b)  Specific exemption.--In no event shall a private entity,
    20070H0555B0844                 - 43 -     

     1  a responsible public entity or an affected public entity be
     2  subject to requirements of the act of May 1, 1913 (P.L.155,
     3  No.104), referred to as the Separations Act, with regard to a
     4  qualifying transportation facility which is the subject of an
     5  interim agreement or a comprehensive agreement.
     6  § 9218.  Public-Private Transportation Partnership Fund.
     7     (a)  Establishment.--There is established within the State
     8  Treasury a special fund to be known as the Public-Private
     9  Transportation Partnership Fund for the purposes enumerated in
    10  this section. Interest and investment earnings on money in the
    11  fund shall be retained in the fund. Money in the fund shall be
    12  used for the purposes enumerated in subsection (c). Money in the
    13  fund shall not lapse and is appropriated upon approval of the
    14  Governor for the purposes enumerated in subsection (c).
    15     (b)  Deposits to fund.--Money to be deposited in the fund
    16  includes:
    17         (1)  excess earnings as provided in section 9208(e)
    18     (relating to comprehensive agreement);
    19         (2)  monetary damages received by the responsible public
    20     entity and the affected public entity for failure by the
    21     private entity to comply with the terms of an interim
    22     agreement or a comprehensive agreement;
    23         (3)  payments made to the responsible public entity and
    24     the affected public entity from any performance or payment
    25     bond; and
    26         (4)  any other money received by the responsible public
    27     entity and the affected public entity and earmarked for
    28     deposit into the fund pursuant to the terms of an interim
    29     agreement or a comprehensive agreement.
    30     (c)  Authorized uses.--Money in the fund shall be allocated
    20070H0555B0844                 - 44 -     

     1  by majority vote of the transportation commission and may, upon
     2  allocation, be used:
     3         (1)  for maintenance, repair, construction,
     4     reconstruction and operation of transportation facilities
     5     available for use by the public and for which no toll, fee or
     6     other charge is imposed for public use; or
     7         (2)  by an affected public entity for transportation-
     8     related purposes under a written agreement with the
     9     responsible public entity as approved by majority vote of the
    10     transportation commission.
    11     (d)  Restrictions on transfers from fund.--Money in the fund
    12  shall not be transferred to the General Fund or any other fund
    13  or used for any purpose not specifically authorized in
    14  subsection (c) unless the transfer or use is by statute approved
    15  by a two-thirds vote of the General Assembly.
    16     Section 2.  All acts and parts of acts are repealed to the
    17  extent they are inconsistent with the provisions of 74 Pa.C.S.
    18  Pt. V.
    19     Section 3.  This act shall take effect as follows:
    20         (1)  The following provisions shall take effect
    21     immediately:
    22             (i)  The addition of 74 Pa.C.S. § 9203(f) and (k).
    23             (ii)  This section.
    24         (2)  The remainder of this act shall take effect on the
    25     earlier of:
    26             (i)  120 days; or
    27             (ii)  the date of publication of draft interim
    28         regulations under 74 Pa.C.S. § 9203(f).


    A9L74BIL/20070H0555B0844        - 45 -
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