PRINTER'S NO. 3865
No. 2593 Session of 2008
INTRODUCED BY CAPPELLI AND D. EVANS, JUNE 5, 2008
REFERRED TO COMMITTEE ON TRANSPORTATION, JUNE 5, 2008
AN ACT 1 Amending Titles 74 (Transportation) and 75 (Vehicles) of the 2 Pennsylvania Consolidated Statutes, further providing for 3 public-private transportation projects for the development, 4 operation and financing of all or part of the Pennsylvania 5 Turnpike; establishing commission powers and duties; 6 providing for additional electronic toll collection methods 7 and certain rights of a private entity; providing for 8 promulgation of regulations related to public-private 9 transportation projects; establishing a public-private 10 transportation fund for the deposit of funds from 11 Pennsylvania Turnpike facility projects; providing for the 12 governance of the commission and a limited exemption from 13 sovereign immunity; further providing for the exemption of 14 private entity parties from fees and certain rights of such 15 parties under regulation of traffic rules; repealing 16 provisions related to the governance of the commission, the 17 conversion of Interstate 80 to a toll road, the lease of 18 Interstate 80 and related payments; further providing for 19 limitation on issuance of bonds backed by Motor License Fund; 20 and making related repeals. 21 The General Assembly of the Commonwealth of Pennsylvania 22 hereby enacts as follows: 23 Section 1. Section 1506(b)(1) and (e)(2)(i)(A.1), (B), (C) 24 and (D) and (ii) of Title 74 of the Pennsylvania Consolidated 25 Statutes are repealed: 26 § 1506. Fund.
1 * * * 2 [(b) Deposits to fund by department.-- 3 (1) The following apply: 4 (i) Except as provided under subparagraph (ii), upon 5 receipt, the department shall deposit into the fund the 6 revenues received by the department under 75 Pa.C.S. Ch. 7 89 (relating to Pennsylvania Turnpike) and the lease 8 agreement executed between the department and the 9 Pennsylvania Turnpike Commission under 75 Pa.C.S. § 10 8915.3 (relating to lease of Interstate 80; related 11 agreements) as follows: 12 (A) For fiscal year 2007-2008, $250,000,000. 13 (B) For fiscal year 2008-2009, $250,000,000. 14 (C) For fiscal year 2009-2010, $250,000,000. 15 (D) For fiscal year 2010-2011 and each fiscal 16 year thereafter, the amount calculated for the 17 previous fiscal year, increased by 2.5%. 18 (ii) The deposits made to the fund under this 19 subsection shall equal $250,000,000 annually for each 20 fiscal year commencing after the expiration of the 21 conversion period if the conversion notice is not 22 received by the secretary prior to expiration of the 23 conversion period as set forth under 75 Pa.C.S. § 24 8915.3(3).] 25 * * * 26 (e) Program funding.--Subject to available funds, the 27 programs established under this chapter shall be funded annually 28 as follows: 29 * * * 30 (2) (i) Except as provided under subparagraph (ii), for 20080H2593B3865 - 2 -
1 the program established under section 1514 (relating to 2 asset improvement program): 3 * * * 4 [(A.1) For fiscal year 2007-2008, $50,000,000 5 from the revenues received by the department under 75 6 Pa.C.S. Ch. 89 and the lease agreement executed 7 between the department and the Pennsylvania Turnpike 8 Commission under 75 Pa.C.S. § 8915.3. The amount 9 received by the department under this section shall 10 be deposited into the fund prior to distribution and 11 shall be in addition to the amounts received under 12 subsection (b)(1). 13 (B) For fiscal year 2008-2009, $100,000,000 from 14 the revenues received by the department under 75 15 Pa.C.S. Ch. 89 and the lease agreement executed 16 between the department and the Pennsylvania Turnpike 17 Commission under 75 Pa.C.S. § 8915.3. The amount 18 received by the department under this section shall 19 be deposited into the fund prior to distribution and 20 shall be in addition to the amounts received under 21 subsection (b)(1). 22 (C) For fiscal year 2009-2010, $150,000,000 from 23 the revenues received by the department under 75 24 Pa.C.S. Ch. 89 and the lease agreement executed 25 between the department and the Pennsylvania Turnpike 26 Commission under 75 Pa.C.S. § 8915.3. The amount 27 received by the department under this section shall 28 be deposited into the fund prior to distribution and 29 shall be in addition to the amounts received under 30 subsection (b)(1). 20080H2593B3865 - 3 -
1 (D) For fiscal year 2010-2011 and each fiscal 2 year thereafter, the amount calculated for the prior 3 fiscal year increased by 2.5% from the revenues 4 received by the department under 75 Pa.C.S. Ch. 89 5 and the lease agreement executed between the 6 department and the Pennsylvania Turnpike Commission 7 under 75 Pa.C.S. § 8915.3. The amount received by the 8 department under this section shall be deposited into 9 the fund prior to distribution and shall be in 10 addition to the amounts received under subsection 11 (b)(1). 12 (ii) If the conversion notice is not received by the 13 secretary prior to the end of the conversion period as 14 set forth in 75 Pa.C.S. § 8915.3(3), no additional 15 allocation shall be made under subparagraph (i).] 16 * * * 17 Section 2. The definition of "electronic toll collection" in 18 section 8102 of Title 74 is amended to read: 19 § 8102. Definitions. 20 The following words and phrases when used in this chapter 21 shall have the meanings given to them in this section unless the 22 context clearly indicates otherwise: 23 * * * 24 "Electronic toll collection." A system of collecting tolls 25 or charges that is capable of charging an account holder for the 26 prescribed toll by electronic transmission of information 27 [between a device on a vehicle and a device in a toll lane at a 28 toll collection facility.] including, without limitation, E-Z 29 Pass, open road tolling, video tolling or other similar 30 structural or technological enhancements pertaining to tolling. 20080H2593B3865 - 4 -
1 * * * 2 Section 3. Sections 8105, 8107(b) and 8116 of Title 74 are 3 repealed: 4 [§ 8105. Commission. 5 (a) (Reserved). 6 (b) Vacancies and terms.-- 7 (1) Notwithstanding any other law, any vacancy in the 8 membership of the commission shall be filled by appointment 9 of the Governor by and with the advice and consent of two- 10 thirds of the members elected to the Senate. 11 (2) The appointed member shall serve for a term of four 12 years. Upon the expiration of this term, the appointed member 13 may continue to hold office until his successor shall be duly 14 appointed and qualified. 15 (c) (Reserved). 16 (d) Secretary.--The provisions of subsection (a) shall not 17 apply to the appointment of the secretary, who shall continue to 18 be appointed and to serve as a member of the commission ex 19 officio in accordance with law. 20 (e) Chairman.--A majority of the members of the commission 21 shall elect a member of the commission to serve as chairman. 22 Upon the appointment and qualification of any new member to 23 serve on the commission, the office of chairman and the 24 positions of all other officers created by law shall be deemed 25 vacant, and a new chairman and other officers shall be elected 26 by a majority of the members of the commission. 27 (f) Actions by the commission.--Notwithstanding any other 28 law, court decision, precedent or practice to the contrary, any 29 and all actions by or on behalf of the commission shall be taken 30 solely upon the approval of a majority of the members to the 20080H2593B3865 - 5 -
1 commission. The term "actions by or on behalf of the 2 commission," as used in this subsection, means any action 3 whatsoever of the commission, including, but not limited to, the 4 hiring, appointment, removal, transfer, promotion or demotion of 5 any officers and employees; the retention, use or remuneration 6 of any advisors, counsel, auditors, architects, engineers or 7 consultants; the initiation of any legal action; the making of 8 any contracts, leases, agreements, bonds, notes or covenants; 9 the approval of requisitions, purchase orders, investments and 10 reinvestments; and the adoption, amendment, revision or 11 rescission of any rules and regulations, orders or other 12 directives. The chairman, vice chairman or any other officer or 13 employee of the commission may take no action by or on behalf of 14 the commission except as expressly authorized by a majority of 15 the members of the commission. 16 (g) Compensation.--The annual salary of the Chairman of the 17 Pennsylvania Turnpike Commission shall be $28,500, and the 18 annual salary of the remaining members of the Pennsylvania 19 Turnpike Commission shall be $26,000. These salaries shall be 20 paid in equal installments every other week.] 21 § 8107. Commission powers and duties. 22 * * * 23 [(b) Maintenance to be paid out of tolls.-- 24 (1) The turnpike extensions and improvements and toll- 25 free roads converted to toll roads when completed and open to 26 traffic shall be maintained and repaired by and under the 27 control of the commission. 28 (2) All charges and costs for the maintenance and 29 repairs actually expended by the commission shall be paid out 30 of tolls. 20080H2593B3865 - 6 -
1 (3) The turnpike, the turnpike extensions and 2 improvements and the toll-free roads converted to toll roads 3 shall also be policed and operated by a force of police, toll 4 takers and other operating employees as the commission may in 5 its discretion employ. 6 § 8116. Collection and disposition of tolls and other revenue. 7 (a) Establishment and changes in toll amounts.--Subject to 8 the terms of any trust indenture entered into by the commission 9 or any resolution authorizing the issuance of any bonds, notes 10 or other obligations of the commission, the commission is 11 authorized to fix and to revise tolls for the use of the 12 Pennsylvania Turnpike System and the different parts or sections 13 of the system, including the turnpike, the turnpike extensions 14 and improvements and the toll road conversions authorized by 15 this chapter. The commission is further authorized to charge and 16 collect tolls; to contract with any person, partnership, 17 association or corporation desiring the use of any part thereof, 18 including the right-of-way adjoining the paved portion, for 19 placing thereon telephone, telegraph, electric light or power 20 lines, gas stations, garages, stores, hotels, restaurants and 21 advertising signs or for any other purpose, except for service 22 plazas in the right-of-way along Interstate 80 and for tracks 23 for railroad or railway use; and to fix the terms, conditions, 24 rents and rates of charges for use. Tolls shall be fixed and 25 adjusted as to provide funds at least sufficient with other 26 revenues of the Pennsylvania Turnpike System, if any, to pay all 27 of the following: 28 (1) The cost of the turnpikes. This paragraph includes 29 the cost of constructing, reconstructing, widening, 30 expanding, extending, maintaining, repairing and operating 20080H2593B3865 - 7 -
1 the Pennsylvania Turnpike System and the different parts and 2 sections of the system. 3 (2) Any of the following: 4 (i) The commission's bonds, notes or other 5 obligations and the interest on them. 6 (ii) Sinking fund requirements of the commission. 7 (iii) Other requirements provided for by any 8 resolution authorizing the issuance of the bonds, notes 9 or other obligations by the commission, or by any trust 10 indenture to which the commission is a party, as they 11 become due. 12 (3) Amounts due to the department under 75 Pa.C.S. Ch. 13 89 (relating to Pennsylvania Turnpike) and pursuant to the 14 lease agreement under 75 Pa.C.S. § 8915.3 (relating to lease 15 of Interstate 80; related agreements). 16 (4) The cost of repayment to the Federal Government of 17 funds required to be repaid pursuant to Federal legislation 18 authorizing the conversion of toll-free roads to toll roads. 19 (5) Any other amounts payable to the Commonwealth or to 20 the department. 21 (b) Restrictions on toll revenue.--Tolls shall not be 22 subject to supervision or regulation by any other State 23 commission, board, bureau or agency. Subject to the terms of any 24 presently existing trust indenture entered into by the 25 commission and any presently existing resolution authorizing the 26 issuance of any bonds, notes or other obligations of the 27 commission, the tolls and all other revenue derived from the 28 Pennsylvania Turnpike System shall be set aside and pledged as 29 may be provided in any resolutions, trust indentures or any 30 other agreements that the commission may hereafter adopt or 20080H2593B3865 - 8 -
1 hereafter enter into with respect to the issuance of bonds, 2 notes or other obligations of the commission.] 3 Section 4. Section 8117(a)(1), (b)(8) and (e) of Title 74 4 are amended to read: 5 § 8117. Electronic toll collection. 6 (a) Liability of owner.-- 7 (1) If an operator of a vehicle fails to pay the 8 prescribed toll at any location where tolls are collected by 9 means of electronic toll collection, the owner of the vehicle 10 shall be liable to the commission or its authorized agent for 11 failure of the operator of the vehicle to comply with this 12 section if the violation is evidenced by information obtained 13 from a violation enforcement system. 14 * * * 15 (b) Imposition of liability.--Liability under this section 16 shall be imposed upon an owner for a violation of this section 17 or the regulations of the commission occurring within the 18 territorial limits of this Commonwealth. If a violation is 19 committed as evidenced by a violation enforcement system, the 20 following shall apply: 21 * * * 22 (8) An owner that admits, is found liable or fails to 23 respond to the notice of violation for a violation of this 24 section shall be civilly liable to the commission or its 25 authorized agent for all of the following: 26 (i) Either: 27 (A) the amount of the toll evaded or attempted 28 to be evaded if the amount can be determined; or 29 (B) the maximum toll from the farthest point of 30 entry on the Pennsylvania Turnpike to the actual 20080H2593B3865 - 9 -
1 point of exit if the amount of the toll evaded or 2 attempted to be evaded cannot be determined. 3 (ii) [A reasonable administrative fee not to exceed 4 $35 per notification.] Administrative costs in an amount 5 sufficient to cover the reasonable direct cost of 6 collecting the amount under subparagraph (i), but no 7 greater than an amount agreed to by the commission and 8 its authorized agent. 9 * * * 10 [(e) Definition.--As used in this section, the term "owner" 11 means any person, corporation, firm, partnership, agency, 12 association, organization or lessor that, at the time a vehicle 13 is operated in violation of this section or regulations of the 14 commission: 15 (1) is the beneficial or equitable owner of the vehicle; 16 (2) has title to the vehicle; or 17 (3) is the registrant or coregistrant of the vehicle 18 registered with the department or a comparable agency of 19 another jurisdiction or uses the vehicle in its vehicle 20 renting or leasing business. The term includes a person 21 entitled to the use and possession of a vehicle subject to a 22 security interest in another person.] 23 (e) Definitions.--As used in this section, the following 24 words and phrases shall have the meanings given to them in this 25 subsection unless the context clearly indicates otherwise: 26 "Authorized agent." The term includes any private entity 27 party to an agreement entered into with the Pennsylvania 28 Turnpike Commission concerning the Pennsylvania Turnpike under 29 section 9203 (relating to P3 agreement). 30 "Owner." Any person, corporation, firm, partnership, agency, 20080H2593B3865 - 10 -
1 association, organization or lessor that, at the time a vehicle 2 is operated in violation of this section or regulations of the 3 Pennsylvania Turnpike Commission: 4 (1) is the beneficial or equitable owner of the vehicle; 5 (2) has title to the vehicle; or 6 (3) is the registrant or coregistrant of the vehicle 7 registered with the Department of Transportation or a 8 comparable agency of another jurisdiction or uses the vehicle 9 in its vehicle renting or leasing business. The term includes 10 a person entitled to the use and possession of a vehicle 11 subject to a security interest in another person. 12 Section 5. Title 74 is amended by adding a part to read: 13 PART V 14 PENNSYLVANIA TURNPIKE PUBLIC-PRIVATE 15 TRANSPORTATION PROJECTS 16 Chapter 17 91. Preliminary Provisions 18 92. Public-private Transportation Projects 19 CHAPTER 91 20 PRELIMINARY PROVISIONS 21 Sec. 22 9101. Scope of part. 23 9102. Declaration of policy. 24 9103. Construction of part. 25 9104. Definitions. 26 § 9101. Scope of part. 27 This part relates to the creation and operation of public- 28 private transportation arrangements for the development, 29 operation and financing of all or part of the Pennsylvania 30 Turnpike. 20080H2593B3865 - 11 -
1 § 9102. Declaration of policy. 2 (a) Legislative findings.--The General Assembly finds and 3 declares as follows: 4 (1) There exists a public need for the timely 5 development and more efficient operation of transportation 6 facilities within this Commonwealth that address the local, 7 regional and State transportation needs of the Commonwealth, 8 including by improving safety, reducing congestion, abating 9 environmental pollution, advancing energy efficiency and 10 conservation, improving homeland security, increasing 11 capacity and enhancing economic efficiency, innovation and 12 revenues available for public transportation purposes. 13 (2) This public need cannot be effectively satisfied 14 solely through the use of currently existing methods of 15 financing by which transportation facilities are developed, 16 operated and financed in this Commonwealth. 17 (3) Authorizing financially sound private entities to 18 operate and finance all or part of the Pennsylvania Turnpike 19 can result in greater availability of transportation 20 facilities to the public in a timely, efficient and less 21 costly fashion, thereby serving the public safety and 22 welfare. 23 (b) Intent.--It is the intent of this part: 24 (1) to encourage financially sound private entities to 25 invest in this Commonwealth by participating in the 26 development, operation and financing of the Pennsylvania 27 Turnpike; 28 (2) in order to accomplish the goal under paragraph (1), 29 to provide the Pennsylvania Turnpike Commission, the 30 Department of Transportation and private entities with 20080H2593B3865 - 12 -
1 flexibility in contracting with each other for and in 2 financing the provision of the public services which are the 3 subject of this title; and 4 (3) in order to accomplish the goal under paragraph (1), 5 to make clear that the Pennsylvania Turnpike Commission and 6 the Department of Transportation are authorized and empowered 7 to contract with private entities for and in financing the 8 public services which are the subject of this title. 9 § 9103. Construction of part. 10 (a) Liberal construction.--This part shall be liberally 11 construed in conformity with and to accomplish the policies set 12 forth under section 9102 (relating to declaration of policy). 13 The powers conferred under this part are in addition and 14 supplemental to the powers conferred under any other law. If any 15 other law or rule is inconsistent with this part, this part 16 shall be controlling as to any P3 agreement. 17 (b) Specific authority.--This part provides public-private 18 transportation opportunities to private entities and shall be 19 construed as the specific statutory authority enabling the 20 Department of Transportation to solicit for and procure, and the 21 Pennsylvania Turnpike Commission and the Department of 22 Transportation to enter into, any contract, agreement, 23 instrument or document with a private entity with respect to the 24 development, operation and financing by the private entity of a 25 Pennsylvania Turnpike facility. Except as provided under this 26 part, no law, procedure, proceeding, publication, notice, 27 consent, approval, order or act by the Pennsylvania Turnpike 28 Commission or the Department of Transportation or any other 29 officer, department, agency or instrumentality of the 30 Commonwealth shall be required for the authority to enter into a 20080H2593B3865 - 13 -
1 P3 agreement. 2 § 9104. Definitions. 3 Subject to additional definitions contained in subsequent 4 provisions of this part which apply to specific provisions of 5 this part, the following words and phrases when used in this 6 part shall have the meanings given to them in this section 7 unless the context clearly indicates otherwise: 8 "Affected jurisdiction." A county, city, borough, 9 incorporated town, township or local, regional or metropolitan 10 transportation organization in this Commonwealth in which all or 11 a portion of a proposed or existing Pennsylvania Turnpike 12 facility is located. 13 "Board." The P3 Investment Board established under section 14 9218(e) (relating to Public-Private Transportation Fund). 15 "Department." The Department of Transportation of the 16 Commonwealth. 17 "Develop." To plan, design, lease as lessor or lessee, 18 acquire interests in, install, construct, reconstruct, replace 19 or expand an existing or proposed Pennsylvania Turnpike 20 facility. 21 "Development." Planning, designing, leasing, acquiring 22 interests in, installing, constructing, reconstructing, 23 replacing or expanding an existing or proposed Pennsylvania 24 Turnpike facility. 25 "Emergency services." The term as defined under 35 Pa.C.S. § 26 7102 (relating to definitions). 27 "Finance." The term shall mean finance of any type, 28 including refinance. 29 "Fund." The Public-Private Transportation Fund established 30 under section 9218 (relating to Public-Private Transportation 20080H2593B3865 - 14 -
1 Fund). 2 "Highway." The term as defined under 75 Pa.C.S. § 102 3 (relating to definitions), except that a highway comprising all 4 or part of a Pennsylvania Turnpike facility shall not be 5 required to be publicly maintained. 6 "Operate." To maintain, improve, equip, modify, expand, 7 enlarge, repair, manage, run or control. 8 "P3 agreement." The public-private transportation project 9 agreement or agreements approved by the Department of 10 Transportation and entered into between a private entity, the 11 Department of Transportation and the Pennsylvania Turnpike 12 Commission under section 9203 (relating to P3 agreement). The 13 term also includes a new or replacement agreement or agreements 14 that replace a P3 agreement that terminates prior to the 15 expiration of its term due to a default by the private entity 16 party thereto, where the replacement P3 agreement contains 17 covenants, agreements, terms, provisions and limitations similar 18 in all material respects to the P3 agreement it replaces. 19 "Pennsylvania Turnpike." The turnpikes, turnpike extensions 20 and turnpike improvements to be constructed, as described under 21 Chapter 81 (relating to turnpike). The phrase shall be deemed to 22 include not only the turnpikes and all connecting roads, storm 23 water management systems, tunnels and bridges connected 24 therewith, but also all property rights, easements and 25 franchises relating thereto and deemed necessary or convenient 26 for the construction or the operation thereof, which may also be 27 referred to as constituting a part of the Pennsylvania Turnpike. 28 "Pennsylvania Turnpike facility." All or any portion of the 29 Pennsylvania Turnpike for which a request for qualifications for 30 the development, operation or financing by a private entity has 20080H2593B3865 - 15 -
1 been approved under section 9202 (relating to approval) and for 2 which a P3 agreement is in full force and effect. 3 "Private entity." An individual, corporation, consortium, 4 partnership, limited liability company, limited partnership, 5 joint venture, trust, business trust, nonprofit corporation or 6 other nongovernmental entity. 7 "Procurement Code." 62 Pa.C.S. Pt. I (relating to 8 Commonwealth Procurement Code). 9 "PSP Account." The restricted revenue account to be 10 established under section 9218(b)(3) (relating to Public-Private 11 Transportation Fund) within the Public-Private Transportation 12 Fund. 13 "Public entity." The Commonwealth, any department, board, 14 agency or commission of the Commonwealth and any authority or 15 instrumentality created by the Commonwealth, whether or not 16 under the jurisdiction of the Governor. The term does not 17 include any court or other agency of the unified judicial 18 system, the General Assembly or any commission, board, agency or 19 committee of the General Assembly. 20 "Right-to-Know Law." The act of June 21, 1957 (P.L.390, 21 No.212), known as the Right-to-Know Law. 22 "SAFETEA-LU." The Safe, Accountable, Flexible, Efficient 23 Transportation Equity Act; A Legacy for Users (Public Law 109- 24 59, 119 Stat. 1144). 25 "Secretary." The Secretary of Transportation of the 26 Commonwealth. 27 "SERS." The Pennsylvania State Employees Retirement System. 28 "Transportation facility." Any highway, bridge, tunnel, 29 overpass, ferry, mass transportation facility, vehicle parking 30 facility, service area, railroad, guideway, street, railway or 20080H2593B3865 - 16 -
1 similar facility used for the transportation of persons or 2 goods, together with any buildings, structures, parking areas, 3 leases, easements, rights-of-way, licenses, appurtenance and 4 other interests in real and personal property needed to operate 5 the facility, including a multimodal transportation facility and 6 commercial or other uses, or other developments or enterprises 7 or activities incidental to and related to the transportation of 8 persons or goods. 9 "Turnpike Commission." The Pennsylvania Turnpike Commission 10 or a successor entity. 11 "User fees." Rates, tolls, fees or other charges for use of 12 all or a portion of a Pennsylvania Turnpike facility for 13 transportation of persons or goods, but shall not include or be 14 deemed to include other revenues received, including without 15 limitation revenues from sales at or leases of or other 16 agreements relating to portions of the Pennsylvania Turnpike 17 facility not directly used for transportation of persons or 18 goods. 19 "Vehicle." The term as defined under 75 Pa.C.S. § 102 20 (relating to definitions). 21 CHAPTER 92 22 PUBLIC-PRIVATE TRANSPORTATION PROJECTS 23 Sec. 24 9201. (Reserved). 25 9202. Approval. 26 9203. P3 agreement. 27 9204. Environmental and other authorizations 28 9205. Transfer and dedication of public property. 29 9206. Certain powers of Turnpike Commission and department. 30 9207. Additional property. 20080H2593B3865 - 17 -
1 9208. Regulations. 2 9209. Inspection. 3 9210. Federal, Commonwealth, local and private assistance. 4 9211. Violation or breach by private entity and remedies. 5 9212. Exemption from certain taxes. 6 9213. Eminent domain. 7 9214. Public utility. 8 9215. Police powers and violations of law. 9 9216. Transfer and disposition of assets. 10 9217. Method of source selection and adverse interests. 11 9218. Public-Private Transportation Fund. 12 9219. Special provisions relating to Turnpike Commission. 13 9220. Delegation. 14 9221. Dispute resolution. 15 9222. Sovereign immunity. 16 9223. Limitations on assignment. 17 9224. Limitation of actions. 18 9225. Exclusive jurisdiction of Supreme Court. 19 § 9201. (Reserved). 20 § 9202. Approval. 21 (a) Authorization.--The department is authorized to select a 22 private entity or entities to be party to a P3 agreement for a 23 Pennsylvania Turnpike facility in accordance with the provisions 24 of this section. The Turnpike Commission and the department are 25 authorized to execute, deliver and perform their obligations 26 under a P3 agreement created in accordance with this chapter. 27 (b) Requests for qualifications.--The department shall issue 28 a request for qualifications in connection with the proposed 29 execution of any P3 agreement with a private entity for a 30 Pennsylvania Turnpike facility. 20080H2593B3865 - 18 -
1 (c) Notice.--The department shall give adequate public 2 notice of any request for qualifications in a reasonable amount 3 of time prior to any deadline date for submission. 4 (d) No liability for costs.--The Turnpike Commission, the 5 department and their respective advisors are not responsible for 6 any costs or damages incurred by a private entity in connection 7 with any request for qualifications. 8 (e) Modification and termination rights.--The department may 9 modify a request for qualifications at any stage if it 10 determines the action to be in the best interest of the 11 Commonwealth. Any request for qualifications may be canceled and 12 any submissions and price offers made in response thereto may be 13 rejected at any time prior to the time a P3 agreement is 14 executed, in each case when the department, in its sole 15 discretion, determines that the action is in the best interest 16 of the Commonwealth. The reasons for the cancellation or 17 rejection shall be made part of the file. A decision to modify, 18 cancel or reject any request for qualifications shall be final 19 and unreviewable. The issuance of a request for qualifications 20 in no way shall obligate the Turnpike Commission or the 21 department to enter into a P3 agreement or any contract of any 22 kind with any party. 23 (f) Selection criteria and award.--The department may 24 conduct discussions with private entities to assure 25 understanding of and responsiveness to the requirements of a 26 request for qualifications, to determine qualifications of any 27 entity submitting a response to a request for qualifications and 28 proposing to submit a bid and to obtain bids for a P3 agreement. 29 The department shall conduct a competitive process to award a P3 30 agreement. The department shall select the responsible private 20080H2593B3865 - 19 -
1 entity that submits the final binding bid that offers the 2 highest price to enter into the P3 agreement. The department may 3 require that any bid submitted to enter into a P3 agreement be 4 accompanied by security in the form of cash, letters of credit 5 or other financial security acceptable to the department. 6 (g) Use of intellectual property.--Unless otherwise agreed, 7 the department and the Turnpike Commission shall have the right 8 to use all or any portion of any response to a request for 9 qualifications, including the technologies, techniques, methods, 10 processes and information contained in the response, except to 11 the extent not transferable by law, notice of which 12 nontransferability shall have been given to the department in 13 the response to the request for qualifications. 14 (h) Commercial enterprises or activities.--Notwithstanding 15 section 3 of the act of May 29, 1945 (P.L.1108, No.402), 16 entitled "An act authorizing the establishment, construction and 17 maintenance of limited access highways and local service 18 highways; and providing for closing certain highways; providing 19 for the taking of private property and for the payment of 20 damages therefor; providing for sharing the costs involved and 21 for the control of traffic thereover; providing penalties, and 22 making an appropriation," commercial enterprises or activities 23 may operate in any Pennsylvania Turnpike facility as permitted 24 by a P3 agreement. 25 (i) Records of requests for qualifications.--The following 26 shall apply: 27 (1) Upon the selection of a private entity to be a party 28 to a P3 agreement, the identity of the private entity 29 selected, the contents of the response of the private entity 30 to the request for qualifications, the final bid submitted by 20080H2593B3865 - 20 -
1 the private entity and the form of the P3 agreement shall be 2 made public. Prior to the selection of a private entity to be 3 a party to a P3 agreement, the identity of a private entity 4 submitting a response to a request for qualifications under 5 this section shall not be subject to public inspection unless 6 the request for qualifications is terminated. Any financial 7 information of a private entity that was requested in a 8 request for qualifications to demonstrate the economic 9 capability of a private entity to fully perform the 10 requirements of a P3 agreement and which is contained in a 11 response to the request for qualifications shall not be 12 subject to public inspection. 13 (2) The department may, in its discretion, make public 14 any information described under paragraph (1) that would not 15 otherwise be subject to public inspection. 16 (3) If the department or the Turnpike Commission 17 terminates a P3 agreement for default, rejects a private 18 entity or a person on the grounds that the private entity is 19 not responsible or suspends or debars a private entity or a 20 person, the private entity or person shall, upon written 21 request, be provided with a copy of the information contained 22 in the file of the private entity or person maintained by the 23 department, the Office of the Budget and the Department of 24 General Services under the contractor responsibility program. 25 (4) Any record, material or data received, prepared, 26 used or retained by the department or the Turnpike Commission 27 or their employees, consultants or agents in connection with 28 the evaluation of requests for qualifications, to the extent 29 they otherwise would constitute a public record, shall not 30 constitute a public record subject to public inspection under 20080H2593B3865 - 21 -
1 the Right-to-Know Law, if, in the reasonable judgment of the 2 department, the inspection would cause substantial 3 competitive harm to the person from whom the information was 4 received. 5 (j) Diversity.--The following shall apply: 6 (1) It is the intent and goal of the General Assembly 7 that the department and the Turnpike Commission promote and 8 ensure diversity in all aspects of development and operation 9 of any Pennsylvania Turnpike facility authorized under this 10 part. The department and the Turnpike Commission shall work 11 to enhance the representation of diverse groups in the 12 development and operation by private entities of any 13 Pennsylvania Turnpike facility through the participation of 14 business enterprises utilized by private entities in the 15 development and operation of any Pennsylvania Turnpike 16 facility under this part and through the provision of goods 17 and services utilized by private entities in the development 18 and operation of any Pennsylvania Turnpike facility under 19 this part. 20 (2) The department is authorized to investigate and 21 conduct periodic studies to ascertain whether effective and 22 meaningful action has been taken or will be taken to enhance 23 the representation of diverse groups in the development and 24 operation by private entities of any Pennsylvania Turnpike 25 facility in this Commonwealth through the participation of 26 business enterprises utilized by private entities in the 27 development and operation of any Pennsylvania Turnpike 28 facility under this part and through the provision of goods 29 and services utilized by private entities in the development 30 and operation of any Pennsylvania Turnpike facility and 20080H2593B3865 - 22 -
1 through employment opportunities. 2 (k) Selection.--Not later than 15 days after entering into a 3 P3 agreement, the department shall publicly announce the 4 execution and delivery of the P3 agreement by forwarding a 5 notice of the P3 agreement to the Legislative Reference Bureau 6 for publication in the Pennsylvania Bulletin and by any other 7 means reasonably designed, in its judgment, to inform the public 8 of the execution and delivery. 9 (l) Approval.--The following shall apply: 10 (1) Except as provided under paragraph (2) and 11 notwithstanding any other law, neither the Turnpike 12 Commission nor the department shall, on or after the date 13 occurring one year following the effective date of this 14 section, enter into a P3 agreement with a private entity for 15 a Pennsylvania Turnpike facility unless legislation is 16 enacted to authorize the performance by the Turnpike 17 Commission and the department of their obligations under that 18 P3 agreement. 19 (2) Paragraph (1) shall not apply to amendments to and 20 replacements of a P3 agreement originally executed within one 21 year of the effective date of this section. 22 § 9203. P3 agreement. 23 (a) P3 agreement provisions.--Each P3 agreement shall 24 include all of the following: 25 (1) A provision stating that nothing in the P3 agreement 26 shall be deemed to constitute the Turnpike Commission or the 27 department as a partner, agent or co-venturer of the private 28 entity party thereto. 29 (2) A description of any planning, development, design, 30 leasing, acquisition of interests in, financing, 20080H2593B3865 - 23 -
1 installation, construction, reconstruction, replacement, 2 expansion, operation, maintenance, improvement, equipping, 3 modification, expansion, enlargement, repair, management, 4 running, control and operation, as applicable, of the 5 Pennsylvania Turnpike facility. 6 (3) The term of the P3 agreement. 7 (4) The type of property interest, if any, or other 8 relationship the private entity will have in, or with respect 9 to, a Pennsylvania Turnpike facility, which may include a 10 lease of all of the Turnpike Commission's right, title and 11 interest in and to the Pennsylvania Turnpike facility, an 12 assignment of the Turnpike Commission's right, title and 13 interest in and to certain agreements related thereto and an 14 exclusive franchise and license to operate, manage, maintain, 15 rehabilitate, toll and expand the Pennsylvania Turnpike 16 facility. 17 (5) A provision authorizing the Turnpike Commission and 18 the department, or their authorized representatives, to 19 inspect all assets and properties of the Pennsylvania 20 Turnpike facility and all books and records of the private 21 entity relating to the Pennsylvania Turnpike facility and any 22 aspect thereof and to review the private entity's performance 23 under the P3 agreement, or any aspect thereof. 24 (6) Whether user fees will be collected for use of the 25 Pennsylvania Turnpike facility and the basis by which any 26 user fees shall be determined. 27 (7) Grounds for termination of the P3 agreement by the 28 private entity, the Turnpike Commission and the department or 29 any of them. 30 (8) Procedures for amendment of the P3 agreement. 20080H2593B3865 - 24 -
1 (9) The rights and remedies available in the event of 2 breach, default or delay, including those rights and remedies 3 of the Turnpike Commission and the department under section 4 9211 (relating to violation or breach by private entity and 5 remedies). 6 (10) A provision for maintenance of insurance, bonds or 7 letters of credit by the private entity, providing coverages 8 and amounts acceptable to the department. 9 (11) A provision requiring delivery to the Turnpike 10 Commission and the department by the private entity, on a 11 periodic basis, of financial statements in a form acceptable 12 to the Turnpike Commission and the department and prepared in 13 accordance with generally accepted accounting principles 14 consistently applied in the United States which financial 15 statements shall be accompanied at least annually by an 16 opinion of an independent public accounting firm of national 17 stature engaged by the private entity. 18 (12) A provision requiring delivery to the Turnpike 19 Commission and the department by the private entity, on a 20 quarterly basis, of traffic characteristic reports, as well 21 as other traffic or traffic-related reports. 22 (13) Provisions setting forth the rights and duties of 23 the private entity and the Turnpike Commission and other 24 public entities and local government entities or affected 25 jurisdictions with respect to use of the Pennsylvania 26 Turnpike facility, including a provision that any police, 27 fire and emergency services and any other security or 28 emergency personnel, including the armed forces, and any 29 public entity with jurisdiction over a Pennsylvania Turnpike 30 facility shall have access to the Pennsylvania Turnpike 20080H2593B3865 - 25 -
1 facility as necessary for the enforcement of police powers, 2 emergency management and homeland security purposes, 3 including the prevention of, practice drills for or response 4 to a public safety emergency, in each case within or outside 5 the limits of a Pennsylvania Turnpike facility, and a 6 provision that the private entity will cooperate with such 7 other public entities, local government entities and affected 8 jurisdictions. 9 (14) Subject to the limitations under section 9223 10 (relating to limitations on assignment), provisions governing 11 any assignment, subcontracting or other delegation of rights 12 and responsibilities of the private entity to third parties, 13 including other private entities or other public entities. 14 (15) Provisions regarding the use by the Turnpike 15 Commission and the department of their respective rights of 16 eminent domain relating to the Pennsylvania Turnpike 17 facility. 18 (16) A description of the sale, lease or other transfer 19 of any real property interests or transfer of other interests 20 or rights to the private entity related to the Pennsylvania 21 Turnpike facility, including any interest in any asset 22 relating to but not itself constituting transportation 23 facilities, if the request for qualifications provides for 24 the assets. 25 (17) A requirement that the private entity will keep the 26 Pennsylvania Turnpike facility open for use by the members of 27 the public in accordance with the P3 agreement. 28 (18) An obligation of the private entity to do all of 29 the following: 30 (i) Offer employment to all Turnpike Commission 20080H2593B3865 - 26 -
1 employees employed at the Pennsylvania Turnpike facility 2 who are in good standing and employed in a collective 3 bargaining unit at the time the private entity assumes 4 responsibility for the operation of the Pennsylvania 5 Turnpike facility pursuant to a P3 agreement and, except 6 as provided under subparagraph (ii), to cause the offers 7 of employment to contain the salary and other terms and 8 conditions of employment, provided that at the expiration 9 of each applicable collective bargaining agreement, the 10 rights and obligations of the private entity with respect 11 to its employees set forth in this subparagraph shall be 12 governed by applicable law. 13 (ii) Provide retirement benefits to all former 14 Turnpike Commission employees who are hired by the 15 private entity that are substantially identical to the 16 benefits the employees were entitled to receive under 17 SERS in effect on the date the private entity assumes 18 responsibility for the operation of the Pennsylvania 19 Turnpike facility, provided that: 20 (A) the private entity shall recognize for the 21 employees all services recognized under SERS for 22 purposes of eligibility to participate, vesting, 23 retirement and benefit accrual; and 24 (B) the retirement benefit payable by the 25 private entity to any individual shall be offset by 26 the actuarial equivalent of any benefit payable to 27 the individual under SERS. 28 (iii) Provide active and postretirement health and 29 welfare benefits to all former Turnpike Commission 30 employees who are hired by the private entity that are at 20080H2593B3865 - 27 -
1 least substantially identical to the active and 2 postretirement health and welfare benefits provided by 3 the Turnpike Commission immediately prior to the date 4 that the private entity assumes responsibility for the 5 operation of the Pennsylvania Turnpike facility. The 6 obligation described under this subparagraph shall 7 terminate at the expiration of the collective bargaining 8 agreement that is in effect on such date, and that has 9 the longest term, and thereafter the relationship between 10 the private entity and its employees shall be governed by 11 applicable law. 12 (19) Standards for maintenance and operation by the 13 private entity of the Pennsylvania Turnpike facility. 14 (20) Assurances that the private entity will cooperate 15 with the Turnpike Commission, operators of other 16 transportation facilities and the department in establishing 17 any interconnection between the Pennsylvania Turnpike 18 facility and other transportation facilities requested by the 19 Turnpike Commission or the department. 20 (21) Provisions permitting and limiting any commercial 21 use or other use or development or enterprises or activities 22 in any Pennsylvania Turnpike facility. 23 (22) Provisions for making capital improvements and 24 modifications to a Pennsylvania Turnpike facility. 25 (23) Provisions requiring the private entity to engage 26 solely in activities related to: 27 (i) owning an interest in a Pennsylvania Turnpike 28 facility; 29 (ii) using, possessing, leasing, operating, tolling 30 and collecting revenues with respect to, and otherwise 20080H2593B3865 - 28 -
1 dealing with, a Pennsylvania Turnpike facility and 2 performing services in respect thereof; and 3 (iii) carrying out other activities permitted 4 pursuant to the corresponding P3 agreement and any 5 activities reasonably incidental thereto. 6 (24) Other terms and provisions as are required by the 7 provisions of this chapter. 8 (25) Other terms and conditions as may be agreed between 9 the private entity and the department. 10 (b) Service agreements.--The private entity, the department 11 and, with approval of the department, the Turnpike Commission, 12 may enter into one or more agreements to provide for all or any 13 portion of the operation, maintenance, development or financing 14 of a Pennsylvania Turnpike facility, including agreements for 15 maintenance or repair of a Pennsylvania Turnpike facility. 16 (c) Certain environmental costs.--The following shall apply: 17 (1) The Commonwealth or the Turnpike Commission may 18 agree to pay or reimburse, on terms that it deems 19 appropriate, a private entity in a P3 agreement or other 20 agreement for actual costs associated with necessary 21 remediation, including investigation activities, for existing 22 environmental contaminants, if any, on, under or emanating 23 from the real property associated with a Pennsylvania 24 Turnpike facility as of the date a private entity assumes 25 responsibility for the operation of that facility. If 26 payment or reimbursement is agreed to, the P3 agreement shall 27 require that the department and the Turnpike Commission be 28 given all of the following: 29 (i) Prompt notice of any claim pertaining to the 30 contaminants. 20080H2593B3865 - 29 -
1 (ii) The right to elect to undertake the necessary 2 remediation. 3 (iii) The right to participate in the defense of or 4 response to the claim. 5 (iv) The right of prior approval before the private 6 entity may settle the claim. 7 (2) No payment by the Commonwealth or the Turnpike 8 Commission under this subsection may be for anything other 9 than, or extend beyond, actual losses, liabilities, damages, 10 penalties, charges, costs and expenses incurred by a private 11 entity to remediate the environmental contamination on, under 12 or emanating from the real property associated with the 13 Pennsylvania Turnpike facility as of the date the private 14 entity assumes responsibility for that Pennsylvania Turnpike 15 facility. 16 (d) User fees.--The following shall apply: 17 (1) The P3 agreement shall include one of the following: 18 (i) any user fees agreed to by the parties, a cap 19 upon increases to or amounts of such user fees, formulae 20 for establishing and limiting the size and frequency of 21 changes in user fees; or 22 (ii) a mechanism for establishing user fees from 23 time to time. 24 (2) In operating a Pennsylvania Turnpike facility, the 25 private entity may make classifications according to 26 reasonable categories for assessment of user fees. 27 (3) A schedule of the current user fees, if any, to be 28 imposed, shall be provided by the private entity to the 29 Turnpike Commission, the affected jurisdictions and the 30 department when user fees are initially imposed after 20080H2593B3865 - 30 -
1 approval under section 9202 (relating to approval) and 2 whenever user fees are changed. A schedule of current user 3 fees as then in effect shall be made available by the private 4 entity to the public. 5 (e) Department as party to P3 agreement.--The department 6 may, in its discretion, become a party to a P3 agreement. If the 7 department elects not to become a party to a P3 agreement, the 8 P3 agreement shall provide that the department shall be an 9 express third party beneficiary of the P3 agreement with full 10 rights to enforce the terms thereof and that there may be no 11 amendments to the P3 agreement without the department's prior 12 consent. The Turnpike Commission may not amend a P3 agreement 13 without first obtaining the consent of the department and any 14 purported amendment to a P3 agreement made without the consent 15 of the department shall be void. 16 (f) Revenues.--The P3 agreement shall provide for the 17 amount, if any, to be paid to the Turnpike Commission from user 18 fees received by, and any other revenues received by, the 19 private entity and any other person having or claiming a right 20 to any interest in the Pennsylvania Turnpike facility under or 21 through the private entity. 22 (g) Amounts payable under P3 agreements.--The following 23 shall apply: 24 (1) The Turnpike Commission and the department are 25 authorized to make payments to a private entity pursuant to 26 and to the extent set forth in a P3 agreement under any of 27 the following: 28 (i) Upon a breach by the Turnpike Commission or the 29 department of its representations, covenants, warranties 30 or other obligations under the P3 agreement. 20080H2593B3865 - 31 -
1 (ii) If the Commonwealth takes adverse actions 2 against the private entity in violation of the terms of 3 the P3 agreement. 4 (iii) Upon the occurrence of force majeure and other 5 events that have an adverse effect on the ability of the 6 private entity to perform its obligations under the P3 7 agreement or to obtain the benefits of the P3 agreement. 8 (2) The payments made pursuant to a P3 agreement may be 9 for losses, liabilities, damages, penalties, costs and 10 expenses of the private entity, as well as for amounts 11 necessary to restore the private entity to the same after-tax 12 economic position it would have been in had the event in 13 question not occurred and for amounts necessary to pay the 14 fair market value of the interest, benefits and rights of the 15 private entity and the rights and obligations of the private 16 entity created and made under the corresponding P3 agreement. 17 (h) Amounts received under P3 agreement.--The net proceeds 18 received under a P3 agreement by the Turnpike Commission shall 19 be available to provide funding for transportation needs in this 20 Commonwealth, unless the net proceeds are otherwise appropriated 21 to the department under section 9218(c) (relating to Public- 22 Private Transportation Fund). 23 § 9204. Environmental and other authorizations. 24 (a) No submission of plan under Administrative Code.-- 25 Notwithstanding any other provision of law, neither soliciting 26 nor approving a request for qualifications, nor executing a P3 27 agreement under this part, shall constitute the submission of a 28 preliminary plan or design to the department under section 29 2002(b) of the act of April 9, 1929 (P.L.177, No.175), known as 30 The Administrative Code of 1929. 20080H2593B3865 - 32 -
1 (b) Certain environmental authorizations.--A P3 agreement 2 may require that prior to commencing any construction in 3 connection with the development, operation or financing of any 4 Pennsylvania Turnpike facility, the private entity shall do any 5 of the following: 6 (1) Secure all necessary environmental permits and 7 authorizations, and if specified under the act of May 19, 8 1995 (P.L.4, No.2), known as the Land Recycling and 9 Environmental Remediation Standards Act, obtain the approval 10 of the Department of Environmental Protection. 11 (2) Complete environmental remediation of the site on 12 which a Pennsylvania Turnpike facility is or is to be 13 located, including acts required under any agreement entered 14 into with the Department of Environmental Protection for 15 remediation of the site under the Land Recycling and 16 Environmental Remediation Standards Act. 17 § 9205. Transfer and dedication of public property. 18 (a) Powers.--Except as otherwise provided under this section 19 and notwithstanding any other provision of law, the Turnpike 20 Commission may transfer a real, personal or mixed property 21 interest which is used, or will be potentially used, in a 22 Pennsylvania Turnpike facility to a private entity for the 23 consideration as the Turnpike Commission and the private entity 24 may agree. The transfer may be accomplished by the Turnpike 25 Commission's delivering, granting or entering into a deed, 26 lease, license, franchise agreement, easement agreement or any 27 other contract or an instrument transferring any other right or 28 interest in the Pennsylvania Turnpike facility as the Turnpike 29 Commission deems appropriate. 30 (b) Limitation.--The following shall apply: 20080H2593B3865 - 33 -
1 (1) Notwithstanding any other provision of this part or 2 other law, the Turnpike Commission shall not agree to any 3 restrictive covenant or transfer any interest, whether in 4 fee, leasehold or otherwise, in real property, being used by 5 or proposed to be used by the public for transportation of 6 persons or goods that expires, terminates or contains a right 7 of reversion to the Turnpike Commission or to the 8 Commonwealth as of a date that is later than one of the 9 following dates, whichever occurs first: 10 (i) Seventy-five years after the date as of which 11 the related P3 agreement shall become effective. The 75- 12 year period may be extended if the term of the related P3 13 agreement is extended in accordance with the provisions 14 of the related P3 agreement. 15 (ii) The date the related P3 agreement terminates. 16 (2) Nothing in this section shall prohibit a P3 17 agreement from authorizing the Turnpike Commission to agree 18 to join in easements or rights of access of more than 75 19 years, as extended under paragraph (1)(i), or for an 20 unlimited term or that terminate, expire or revert after the 21 date the P3 agreement expires, that are granted by the 22 private entity if the Turnpike Commission believes that the 23 easements or rights of access will not materially adversely 24 affect the utility or value of the real property for the 25 purposes for which it is being used or for future 26 development. Any purported transfer made or restrictive 27 covenant agreed to in violation of this subsection shall be 28 null and void ab initio. Any lien, security interest, 29 easement, restrictive covenant or other encumbrance that was 30 granted without the Turnpike Commission's prior written 20080H2593B3865 - 34 -
1 consent shall be extinguished upon the expiration, 2 termination or reversion. 3 (c) Related real property.--Notwithstanding any other 4 provision of this part or other law, if the Turnpike Commission 5 holds any real property or interest therein not required for use 6 of a Pennsylvania Turnpike facility, the Turnpike Commission 7 may, either pursuant to a process set forth in the P3 agreement, 8 or subsequently pursuant to appropriate public solicitation, 9 sever the real property or interests therein not required for 10 operation of the Pennsylvania Turnpike facility for 11 transportation of persons or goods from the remainder of the 12 property and convey the excess interests on the terms and 13 conditions as it may determine to be reasonable and appropriate. 14 (d) Recordation and legal description.--The legal 15 description of the real property comprising a Pennsylvania 16 Turnpike facility set forth under a P3 agreement constitutes a 17 sufficient legal description to convey a leasehold interest in 18 the Pennsylvania Turnpike facility and for all other purposes, 19 including a legal description in satisfaction of section 2 of 20 the act of June 2, 1959 (P.L.454, No.86), entitled "An act 21 permitting the recording of leases, subleases and agreements to 22 lease or sublease; permitting the recording of memoranda 23 thereof; prescribing the minimum contents of such memoranda; 24 prescribing the effect of recording such instruments, including 25 provisions thereof for the purchase of or refusal on the demised 26 premises; and specifying that the recording of such a memorandum 27 shall be a sufficient recording of the full lease, sublease, or 28 agreement in connection with the assignment or mortgaging of the 29 lessee's interest therein" and a legal description sufficient to 30 create a mortgageable leasehold interest and to permit a 20080H2593B3865 - 35 -
1 foreclosure thereof or permit an execution of a valid judgment 2 against the owner of the leasehold interest in the Pennsylvania 3 Turnpike facility, so long as the description contains the name 4 of the county and the city, borough or township in which the 5 Pennsylvania Turnpike facility is located and a description of 6 the principal use of the Pennsylvania Turnpike facility as of 7 the date of the related P3 agreement. If the applicable 8 Pennsylvania Turnpike facility is used principally as a limited 9 access highway with appurtenant rest areas, a statement to that 10 effect is sufficient to satisfy the description requirement 11 under this subsection. 12 (e) Exemption from zoning regulations.--A Pennsylvania 13 Turnpike facility and any addition or accession to the facility 14 during the term of the related P3 agreement is and shall be 15 exempt from county, municipal, township or other district or 16 borough zoning and land use regulations and ordinances in 17 connection with the construction, expansion, conversion, 18 maintenance, improvement, use, occupancy and operation of the 19 facility. 20 § 9206. Certain powers of Turnpike Commission and department. 21 (a) General powers.--In confirmation of any enumerated 22 powers provided to the Turnpike Commission or the department 23 under any other provision of law and in addition to any 24 enumerated powers provided to the Turnpike Commission and the 25 department set forth under any other provision of law or 26 elsewhere in this part, the Turnpike Commission and the 27 department may do all or any of the following in connection with 28 a Pennsylvania Turnpike facility: 29 (1) Take all necessary acts to secure authority under 30 any applicable Federal program to issue or arrange for the 20080H2593B3865 - 36 -
1 issuance of governmental bonds and private activity bonds or 2 to borrow or receive the proceeds of bonds issued by another 3 public entity, and to be eligible for funding, grants, loan 4 guarantees or loans under any such program, including Title 5 XI of SAFETEA-LU and the Transportation Infrastructure and 6 Innovation Act of 1998 (Public Law 105-178, 112 Stat. 241). 7 (2) Negotiate and execute instruments, including P3 8 agreements, financing agreements, leases, as lessor or 9 lessee, letter of credit agreements, liquidity agreements, 10 guarantees, sureties, mortgages, loans, standby loan 11 commitments and contracts of insurance, which are necessary 12 or appropriate for carrying on the business of the Turnpike 13 Commission and the department relating to existing or 14 proposed Pennsylvania Turnpike facilities. This paragraph 15 shall include the ability to negotiate and act pursuant to 16 appropriate default provisions and remedies and shall not be 17 construed as relieving or exempting the Turnpike Commission 18 and the department from any restrictions on their respective 19 ability to incur indebtedness. 20 (3) Resolve claims of default by the private entity or 21 the Turnpike Commission and the department relating to a 22 Pennsylvania Turnpike facility and, in connection therewith, 23 to negotiate and enter into settlement agreements, workout 24 agreements, consent decrees and similar instruments. 25 (4) Enter into agreements with private entities and 26 governmental entities which may provide, among other things, 27 for measures by which private entities and government 28 entities agree to coordinate development, operation and 29 maintenance of transportation facilities, on the terms and 30 conditions as are customary or as are deemed necessary and 20080H2593B3865 - 37 -
1 appropriate by the Turnpike Commission and the department. 2 (5) Acquire by condemnation or otherwise any lands, 3 estates or interests deemed necessary or appropriate for the 4 acquisition, development, operation, construction, 5 improvement, alteration or maintenance of a Pennsylvania 6 Turnpike facility under a P3 agreement, including for 7 roadways, highways, bridges, transportation infrastructure of 8 all kinds, roadside rest stops, rest areas, service areas and 9 other related commercial facilities. 10 (6) Exercise any rights established in a P3 agreement, 11 including those set forth under section 9211 (relating to 12 violation or breach by private entity and remedies). 13 (b) Additional powers.--In addition to all other powers 14 under this part, the Turnpike Commission or the department, as 15 applicable, shall have the following additional powers: 16 (1) The Turnpike Commission and the department may do 17 any other appropriate act necessary or convenient to carry 18 out and effectuate the purposes of this part and to exercise 19 the powers set forth in this part, including any act 20 reasonably implied from those powers. 21 (2) In connection with the selection of a winning bidder 22 for a Pennsylvania Turnpike facility, the Turnpike Commission 23 may enter into agreements with private entities on such terms 24 as the Turnpike Commission determines are reasonable to 25 mitigate potential decreases in the price determined under a 26 final binding bid for the facility arising from changes in 27 interest rates. In order to secure amounts due under such 28 agreements, the Turnpike Commission and the winning bidder 29 may enter into agreements pursuant to which a bank shall 30 receive and apply or set-off amounts due to the Turnpike 20080H2593B3865 - 38 -
1 Commission, the winning bidder and the private entities. 2 (c) Coordination regarding transportation facilities.--The 3 Turnpike Commission and the department may enter into agreements 4 with one another and with public entities or private entities 5 that have entered into P3 agreements for a Pennsylvania Turnpike 6 facility to coordinate development and operation of 7 transportation facilities. 8 § 9207. Additional property. 9 Subject to the other provisions of this part and other 10 applicable law, a P3 agreement may provide that the private 11 entity may acquire by purchase, lease or otherwise additional 12 real, personal and mixed property, construct improvements on any 13 additional real property and incorporate any additional property 14 into a Pennsylvania Turnpike facility. The property shall, 15 without the necessity for any further action, become the 16 property of the Turnpike Commission under section 9216(a) 17 (relating to transfer and disposition of assets), free and clear 18 of any lease, lien, security interest, easement or other 19 encumbrance other than encumbrances that do not significantly 20 interfere with the enjoyment of the property, no later than the 21 date of termination of the P3 agreement or on the earlier date 22 as set forth in the P3 agreement. 23 § 9208. Regulations. 24 (a) General rule.--In order to facilitate the implementation 25 of this part, the department may promulgate regulations or 26 publish guidelines that include any or all of the following: 27 (1) The process for the review of requests for 28 qualifications or responses to requests for qualifications 29 issued by the department. 30 (2) The process for receipt and review of and response 20080H2593B3865 - 39 -
1 to competing responses to requests for qualifications. 2 (3) The type and amount of information that is necessary 3 for adequate review of and response to requests for 4 qualifications in each stage of review. 5 (4) Any other provisions which are required under this 6 part or which the department determines are appropriate for 7 implementation of this part. 8 (b) Temporary regulations.--Notwithstanding any other 9 provision of law and in order to facilitate the prompt 10 implementation of this part, any regulations promulgated by the 11 department under this part during the two years following the 12 effective date of this section shall be deemed temporary 13 regulations which shall expire no later than three years 14 following the effective date of this section or upon 15 promulgation of regulations as generally provided by law. The 16 temporary regulations shall not be subject to any of the 17 following: 18 (1) Sections 201, 202, 203 and 204 of the act of July 19 31, 1968 (P.L.769, No.240), referred to as the Commonwealth 20 Documents Law. 21 (2) The act of June 25, 1982 (P.L.633, No.181), known as 22 the Regulatory Review Act. 23 § 9209. Inspection. 24 The Turnpike Commission, the department and their authorized 25 representatives are authorized to inspect all assets and 26 properties of any Pennsylvania Turnpike facility and all books 27 and records of the private entity party to a P3 agreement for 28 the related Pennsylvania Turnpike facility and any aspect 29 thereof, and to review the private entity's performance under 30 the P3 agreement, its plans for the Pennsylvania Turnpike 20080H2593B3865 - 40 -
1 facility and any aspect thereof and its execution of the plans. 2 § 9210. Federal, Commonwealth, local and private assistance. 3 (a) Federal assistance.--The following shall apply: 4 (1) The Turnpike Commission or the department may accept 5 from the United States, or any of its agencies, funds that 6 are available to the Commonwealth for carrying out this part, 7 whether the funds are made available by grant, loan, loan 8 guarantee or otherwise. 9 (2) The department and the Turnpike Commission are 10 authorized to assent to any Federal requirements, conditions 11 or terms of any Federal funding accepted by the department or 12 the Turnpike Commission under this section. 13 (3) The Turnpike Commission or the department may enter 14 into agreements or other arrangements with the United States, 15 or any of its agencies, as may be necessary for carrying out 16 the purposes of this part. 17 (b) Acceptance of grants and donations.--The department and 18 the Turnpike Commission may accept from any source any grant, 19 donation, gift or other form of conveyance of land, money, other 20 real, personal or mixed property or other item of value for 21 carrying out the purpose of this part. 22 (c) Contributions.--Subject to acceptance and agreement by 23 the private entity and the Turnpike Commission, any Pennsylvania 24 Turnpike facility may be financed in whole or in part by 25 contribution of any funds or property made by the department, 26 the Turnpike Commission, any private entity, any public entity 27 or any affected jurisdiction. 28 (d) Combination of funds.--The department and the Turnpike 29 Commission may combine Federal, State, local and private funds 30 to finance a Pennsylvania Turnpike facility under this part. 20080H2593B3865 - 41 -
1 § 9211. Violation or breach by private entity and remedies. 2 (a) Violation or breach.--The following shall apply: 3 (1) A P3 agreement may provide that, in the event of any 4 failure of a private entity to perform its duties or fulfill 5 its obligations under a P3 agreement, or should a default or 6 event of default by the private entity in its obligations 7 under a P3 agreement otherwise occur which remains unremedied 8 after required notice, if any, to the private entity has been 9 provided by the Turnpike Commission or the department and the 10 specified period of time, if any, for cure has expired, or 11 which creates a material danger to the safety of the 12 operations of the related Pennsylvania Turnpike facility or a 13 material impairment to the facility or to the continuing use 14 thereof for transportation purposes, the Turnpike Commission 15 and the department, subject to any cure periods in the 16 related P3 agreement, may do any of the following: 17 (i) Elect to terminate the P3 agreement and take 18 over the Pennsylvania Turnpike facility subject to the P3 19 agreement, including the applicable succession to all 20 right, title and interest in the Pennsylvania Turnpike 21 facility as an exercise of the powers of the Turnpike 22 Commission and the department to provide for safe, 23 efficient transportation in order to protect the health, 24 safety and welfare of the citizens of this Commonwealth 25 or otherwise. 26 (ii) Agree to accept the Pennsylvania Turnpike 27 facility subject to any liens previously granted by the 28 private entity to entities providing financing to the 29 private entity for the Pennsylvania Turnpike facility or 30 to purchase the debt of the private entity held by 20080H2593B3865 - 42 -
1 entities providing financing to the private entity for 2 the Pennsylvania Turnpike facility. 3 (iii) Seek specific performance, injunction or other 4 equitable remedies. 5 (iv) Exercise any additional rights and remedies 6 allowed by law or in equity or provided in the P3 7 agreement, including the ejection of the private entity 8 from the Pennsylvania Turnpike facility, the assessment 9 of liquidated damages or other amounts or the liquidating 10 of any bond, security or reserve accounts established 11 thereunder. 12 (2) Notwithstanding paragraph (1), the General Assembly 13 specifically finds that the commencement of a reorganization 14 or liquidation proceeding under 11 United States Code 15 (relating to bankruptcy) or under any comparable state or 16 local law by any private entity that is a party to a P3 17 agreement would constitute an immediate threat to the public 18 health, safety and welfare of the citizens of this 19 Commonwealth. 20 (b) Exercise of remedies.--If the Turnpike Commission or the 21 department takes over a Pennsylvania Turnpike facility under 22 subsection (a), the Turnpike Commission or the department may do 23 any of the following: 24 (1) Collect any revenues to satisfy any obligation of 25 the private entity, the Turnpike Commission or the 26 department. 27 (2) Develop, operate and finance the Pennsylvania 28 Turnpike facility, including the imposition of user fees and 29 compliance with any service agreements in connection with the 30 use of the Pennsylvania Turnpike facility as set forth under 20080H2593B3865 - 43 -
1 section 9203 (relating to P3 agreement). 2 (3) Solicit requests for qualifications for the 3 maintenance and operation of the Pennsylvania Turnpike 4 facility. 5 (4) Exercise any other remedies set forth in a P3 6 agreement. 7 § 9212. Exemption from certain taxes. 8 (a) Exemption.--A Pennsylvania Turnpike facility is used for 9 an essential government function and public purpose and shall be 10 exempt and continue to be immune from local ad valorem real 11 estate tax, and any direct or indirect transfer or lease of a 12 Pennsylvania Turnpike facility pursuant to or permitted by a P3 13 agreement, any recording of any memoranda of lease pursuant to 14 or permitted by a P3 agreement, and any transfer of any 15 ownership interest in any private entity party to a P3 agreement 16 shall be exempt from any realty transfer tax imposed by the 17 Commonwealth or any political subdivision. Neither the 18 Commonwealth nor any political subdivision shall impose any of 19 the following: 20 (1) Tax on business privilege or activities or gross 21 receipts of a private entity party to a P3 agreement. 22 (2) Capital stock or franchise tax under Article VI of 23 the act of March 4, 1971 (P.L.6, No.2), known as the Tax 24 Reform Code of 1971, in respect of a private entity party to 25 a P3 agreement. 26 (3) Sales and use tax on any of the following: 27 (i) The rent for or revenues from a Pennsylvania 28 Turnpike facility. 29 (ii) The sale, purchase or use by any person, 30 including a contractor or subcontractor, of tangible 20080H2593B3865 - 44 -
1 personal property or services constituting or 2 incorporated into a Pennsylvania Turnpike facility. 3 (iii) The sale, purchase or use of any motor vehicle 4 that is or will be used principally in connection with a 5 Pennsylvania Turnpike facility. 6 (b) Deposit.--The department shall cause a portion of the 7 initial payment made under a P3 agreement to be deposited in the 8 General Fund as representing a prepayment of sales and use tax 9 that otherwise would be imposed on any sale or purchase at 10 retail by the private entity that would be subject to the sales 11 and use tax imposed under Article II of the Tax Reform Code of 12 1971 if the exemption from sales and use tax under subsection 13 (a) were not in effect. The department's determination of the 14 amount to be deposited in the General Fund under this subsection 15 shall be final. 16 § 9213. Eminent domain. 17 The Turnpike Commission or the department may exercise the 18 right of eminent domain for the purpose of acquiring any lands 19 or estates or interests therein required or necessary for the 20 Turnpike Commission and the department to perform their 21 obligations under any P3 agreement, to the extent permitted by 22 laws governing eminent domain and to the extent that the 23 Turnpike Commission and the department find that the action 24 serves the public purpose of this part. Any amount to be paid in 25 the eminent domain proceeding, and all costs incurred in 26 connection therewith, shall be paid by the private entity, 27 unless otherwise agreed to by the Turnpike Commission and the 28 department or provided for in the corresponding P3 agreement. 29 § 9214. Public utility. 30 A private entity developing or operating a Pennsylvania 20080H2593B3865 - 45 -
1 Turnpike facility shall not be considered a public utility by 2 virtue of the activity under Title 66 (relating to public 3 utilities) or otherwise. The Pennsylvania Public Utility 4 Commission shall have no jurisdiction or authority over tolls, 5 rates or other user fees in connection with any Pennsylvania 6 Turnpike facility. No tolls, rates or other user fees imposed by 7 the private entity in connection with its operation of a 8 Pennsylvania Turnpike facility shall be subject to approval 9 except as provided in the P3 agreement. 10 § 9215. Police powers and violations of law. 11 (a) Powers and jurisdiction.--All officers authorized by law 12 to make arrests for violations of law in this Commonwealth and 13 each affected jurisdiction shall have the same powers, duties 14 and jurisdiction within the limits of a Pennsylvania Turnpike 15 facility as they have in their respective areas of jurisdiction, 16 and law enforcement officers shall have access to a Pennsylvania 17 Turnpike facility at any time for the purpose of exercising 18 their law enforcement powers and jurisdiction. The grant of 19 authority under this subsection shall not extend to the private 20 offices, buildings, garages and other improvements of a private 21 entity to any greater degree than the police power extends to 22 any other private offices, buildings, garages and other 23 improvements. 24 (b) Enforcement of traffic laws.--To the extent a 25 Pennsylvania Turnpike facility is a highway, bridge, tunnel, 26 overpass or similar transportation facility for motor vehicles, 27 the traffic and motor vehicle laws of this Commonwealth or, if 28 applicable, any local jurisdiction shall be the same as those 29 applying to conduct on similar transportation facilities in this 30 Commonwealth or the local jurisdiction. Punishment for offenses 20080H2593B3865 - 46 -
1 shall be as prescribed by law for conduct occurring on similar 2 transportation facilities in this Commonwealth or the local 3 jurisdiction. 4 (c) Payment of costs for emergency services.--The private 5 entity may enter into agreements with providers of emergency 6 services for the payment to the providers of emergency services 7 for the reasonable cost of the emergency services. The form and 8 amount of emergency services shall be as agreed between the 9 private entity and the providers of the services in the several 10 areas of this Commonwealth from time to time but, at a minimum, 11 shall be adequate as determined by the department and the 12 Pennsylvania Emergency Management Agency for protection of the 13 public and compliance with all applicable requirements or the 14 higher standards as may be established in a P3 agreement. 15 (d) Imposition, collection and disposition of fines.--The 16 Commonwealth's share of fines imposed for violations occurring 17 within the limits of a Pennsylvania Turnpike facility shall 18 first be applied to defray the cost of police services for which 19 the Pennsylvania Turnpike facility is liable. Any excess of the 20 Commonwealth's share of the fines over the costs of providing 21 the services shall be distributed and governed as otherwise 22 provided under applicable law. 23 § 9216. Transfer and disposition of assets. 24 (a) Termination of P3 agreement.--The following shall apply: 25 (1) The rights and obligations of a private entity under 26 this part and under a P3 agreement shall terminate on the 27 termination date set forth in a P3 agreement or as otherwise 28 provided for under a P3 agreement, except that all of the 29 following shall apply: 30 (i) The requirement to make any payments required to 20080H2593B3865 - 47 -
1 be made by a private entity that have accrued but not yet 2 been paid shall survive the termination. 3 (ii) Any rights and obligations that extend beyond 4 termination as provided for in a P3 agreement shall not 5 terminate. 6 (2) Any property, real, personal and mixed, constituting 7 a Pennsylvania Turnpike facility shall, without the necessity 8 of any further action, become the property of the Turnpike 9 Commission free and clear of any lease, lien, security 10 interest, easement or other encumbrance, other than 11 encumbrances that do not significantly interfere with the 12 enjoyment of the property, no later than the scheduled 13 termination date of the related P3 agreement or on the 14 earlier date as set forth in the related P3 agreement. 15 (b) User fees.--If a Pennsylvania Turnpike facility reverts 16 to the Turnpike Commission under subsection (a), the Turnpike 17 Commission may continue to charge user fees for the use of the 18 facility. 19 § 9217. Method of source selection and adverse interests. 20 (a) General rule.--The Procurement Code shall not apply to 21 the development, operation or financing of a Pennsylvania 22 Turnpike facility by a private entity. Except as specifically 23 provided under section 9218(e)(3) (relating to Public-Private 24 Transportation Fund), the Procurement Code shall not apply to 25 this part, except for all of the following provisions: 26 (1) 62 Pa.C.S. § 531 (relating to debarment or 27 suspension). 28 (2) 62 Pa.C.S. § 541 (relating to approval of accounting 29 system). 30 (3) 62 Pa.C.S. § 551 (relating to right to inspect 20080H2593B3865 - 48 -
1 plant). 2 (4) 62 Pa.C.S. § 552 (relating to right to audit 3 records). 4 (5) 62 Pa.C.S. § 563 (relating to retention of 5 procurement records). 6 (b) Exemption.--Notwithstanding any other provision of law, 7 the provisions of the act of May 1, 1913 (P.L.155, No.104), 8 referred to as the Separations Act, shall not be applicable to 9 any contract entered into by a private entity party to a P3 10 agreement related to the development, operation or financing of 11 a Pennsylvania Turnpike facility. 12 (c) Private entity adverse interests.--The following shall 13 apply: 14 (1) Except as provided under paragraph (2), a private 15 entity which submits a response to a request for 16 qualifications under section 9202 (relating to approval) and 17 which is also a State advisor or a State consultant as each 18 term is defined in the act of July 19, 1957 (P.L.1017, 19 No.451), known as the State Adverse Interest Act, for the 20 department or the Turnpike Commission, shall not be deemed to 21 be in violation of the State Adverse Interest Act while 22 engaging in any of the following activities: 23 (i) Preparing or submitting a response to a request 24 for qualifications. 25 (ii) Participating in any activities with the 26 department or the Turnpike Commission related to a 27 request for qualifications. 28 (iii) Negotiating and entering into any contract, 29 lease or P3 agreement with the department or the Turnpike 30 Commission which results from a request for 20080H2593B3865 - 49 -
1 qualifications. 2 (iv) Engaging in other actions taken in furtherance 3 of the purposes of this part. 4 (2) A private entity which submits a response to a 5 request for qualifications or acts as a consultant or an 6 advisor to a private entity which submits a response to a 7 request for qualifications to the department shall be 8 prohibited from consulting or providing advice to the 9 department on the review or approval of the response to the 10 request for qualifications so submitted. 11 (d) Additional procurement provisions.--The following 12 provisions shall apply to any contract entered into by a private 13 entity party to a P3 agreement related to the development, 14 operation or financing of the Pennsylvania Turnpike facility 15 subject to the P3 agreement: 16 (1) The act of August 15, 1961 (P.L.987, No.442), known 17 as the Pennsylvania Prevailing Wage Act. 18 (2) 62 Pa.C.S. § 107 (relating to reciprocal 19 limitations). 20 (3) The act of March 3, 1978 (P.L.6, No.3), known as the 21 Steel Products Procurement Act. 22 (4) The act of July 23, 1968 (P.L.686, No.226), entitled 23 "An act equalizing trade practices in public works 24 procurement; authorizing the purchase by the Commonwealth, 25 its political subdivisions, and all public agencies, of 26 aluminum and steel products produced in a foreign country, 27 provided the foreign country does not prohibit or 28 discriminate against the importation to, sale or use in the 29 foreign country of supplies, material or equipment 30 manufactured in this Commonwealth; establishing procedures 20080H2593B3865 - 50 -
1 for determining whether foreign countries discriminate 2 against supplies, materials or equipment manufactured in this 3 Commonwealth; and imposing penalties and providing for relief 4 for violation of this act." 5 § 9218. Public-Private Transportation Fund. 6 (a) Establishment of fund.--There is established within the 7 State Treasury a separate fund known as the Public-Private 8 Transportation Fund for the deposit of all money specified under 9 subsection (b) received by the department, the Turnpike 10 Commission or any other agency or instrumentality of the 11 Commonwealth pursuant to or in connection with a P3 agreement 12 for a Pennsylvania Turnpike facility, whose funds are required 13 by other applicable law to be held by the State Treasurer. The 14 State Treasurer shall be the custodian of the fund. Money in the 15 fund shall be used only for the purposes enumerated under 16 subsection (c). 17 (b) Deposits to fund.--The following shall apply: 18 (1) The State Treasurer shall deposit in the fund all 19 money received from the following sources by the department 20 or the Turnpike Commission or any other agency or 21 instrumentality of the Commonwealth whose funds are required 22 to be held by the State Treasurer by other applicable law: 23 (i) All money received pursuant to the terms of a P3 24 agreement by the department or the Turnpike Commission or 25 any other agency or instrumentality of the Commonwealth, 26 except for a deposit into the General Fund made pursuant 27 to section 9212 (relating to exemption from certain 28 taxes). 29 (ii) Repayment of any loans made under this part. 30 (iii) Subject to the provisions of any P3 agreement, 20080H2593B3865 - 51 -
1 monetary damages and other amounts for failure by a 2 private entity to comply with the terms of a P3 3 agreement, which damages and other amounts are received 4 by the department, the Turnpike Commission or any other 5 agency or instrumentality of the Commonwealth whose funds 6 are required to be held by the State Treasurer by other 7 applicable law. 8 (iv) Subject to the provisions of any P3 agreement, 9 payments made from any insurance proceeds or reserve 10 funds or performance or payment bonds in connection with 11 a Pennsylvania Turnpike facility to the department, the 12 Turnpike Commission or any other agency or 13 instrumentality of the Commonwealth whose funds are 14 required to be held by the State Treasurer by other 15 applicable law. 16 (v) Earnings from the investment of the money in the 17 fund. 18 (vi) All other money authorized to be received under 19 this part. 20 (2) The Secretary of the Budget shall establish a 21 separate restricted revenue account within the fund each time 22 that a P3 agreement in connection with a Pennsylvania 23 Turnpike facility is executed by the Turnpike Commission or 24 the department, or both. Except as provided under paragraph 25 (3), the State Treasurer shall deposit the money received 26 under paragraph (1) pursuant to a particular P3 agreement or 27 in connection with a particular Pennsylvania Turnpike 28 facility into the related restricted revenue account 29 established by the Secretary of the Budget in connection with 30 the P3 agreement. 20080H2593B3865 - 52 -
1 (3) The Secretary of the Budget shall establish a 2 restricted revenue account within the fund at the time a P3 3 agreement in connection with a Pennsylvania Turnpike facility 4 is executed by the Turnpike Commission or the department, or 5 both, to be designated the PSP Account. Money in the PSP 6 Account shall be used for the exclusive purpose of paying the 7 Pennsylvania State Police, its successors or any other public 8 law enforcement service provider permitted to assume the 9 responsibilities of the Pennsylvania State Police for the 10 provision of traffic patrol and traffic law enforcement 11 services on a Pennsylvania Turnpike facility. The State 12 Treasurer shall deposit into the PSP Account $350,000,000 of 13 the money received under paragraph (1)(i) pursuant to the 14 first P3 agreement executed in connection with a Pennsylvania 15 Turnpike facility. 16 (4) If any bonds, notes or other obligations of the 17 Turnpike Commission secured by oil company franchise tax or 18 other Motor License Fund money are paid, or provision for 19 payment is made in accordance with the agreements under which 20 the bonds, notes or other obligations were issued, the amount 21 of oil company franchise tax receipts or other Motor License 22 Fund allocations for highway maintenance and construction 23 allocated for the toll roads included in a Pennsylvania 24 Turnpike facility shall be appropriated from the Motor 25 License Fund to the fund and shall be deposited in a separate 26 restricted revenue account established by the Secretary of 27 the Budget for the money. The oil company franchise tax 28 receipts and the Motor License Fund allocations shall be 29 disbursed from the fund only for the purposes as are 30 permitted by law. 20080H2593B3865 - 53 -
1 (5) The Secretary of the Budget shall establish any 2 other restricted accounts within the fund as the secretary 3 deems necessary for the proper administration of the fund. 4 (c) Appropriation.--To the extent permitted by law, the net 5 proceeds received under a P3 agreement by the department, the 6 Turnpike Commission, or any other agency or instrumentality of 7 the Commonwealth whose funds are required to be held by the 8 State Treasurer by other applicable law, shall be appropriated 9 to the department to provide funding for transportation needs in 10 this Commonwealth. Money in the fund, and in restricted accounts 11 within the fund, is appropriated to the department for any of 12 the following purposes: 13 (1) Paying any amounts required to be paid to discharge 14 the department's pledge for the benefit of the Turnpike 15 Commission of the allocation to the Pennsylvania Turnpike of 16 amounts paid from the oil company franchise tax pursuant to 17 75 Pa.C.S. § 9511 (relating to allocation of proceeds) and 18 Motor License Fund allocations under section 20 of the act of 19 April 17, 1997 (P.L.6, No.3), entitled "An act Amending 20 Titles 74 (Transportation) and 75 (Vehicles) of the 21 Pennsylvania Consolidated Statutes, further providing for 22 annual appropriation and computation of subsidy and for 23 distribution of funding; providing for distribution of 24 supplemental funding; further providing for use of funds 25 distributed; providing for public transportation grants 26 management accountability, for competitive procurement and 27 for the Public Transportation Assistance Fund; further 28 providing for period of registration, for duties of agents, 29 for registration and other fees, for requirements for 30 periodic inspection of vehicles, for limits on number of 20080H2593B3865 - 54 -
1 towed vehicles, for operation of certain combinations on 2 interstate and other highways and for width and length of 3 vehicles; providing for liquid fuels and fuels permits and 4 bond or deposit of securities, for imposition of liquid fuels 5 and fuels tax, for taxpayer, for distributor's report and 6 payment of tax, for determination of tax, penalties and 7 interest, for examination of records and equipment, for 8 retention of records by distributors and dealers, for 9 disposition and use of tax, for discontinuance or transfer of 10 business, for suspension or revocation of permits, for lien 11 of taxes, penalties and interest, for collection of unpaid 12 taxes, for reports from common carriers, for violations and 13 reward for detection of violations, for refunds, for diesel 14 fuel importers and transporters, for prohibiting use of dyed 15 diesel fuel, for disposition of fees, fines and forfeitures, 16 for certified copies of records and for uncollectible checks; 17 further providing for distribution of State highway 18 maintenance funds and for standards and methodology for data 19 collection; providing for dirt and gravel road maintenance; 20 further providing for imposition of tax and additional tax; 21 providing for tax on alternative fuels; further providing for 22 disposition of tax revenue; making an appropriation; and 23 making repeals." 24 (2) Paying the amounts, if any, as the department may be 25 required to repay the Federal Highway Administration as a 26 result of the establishment of a Pennsylvania Turnpike 27 facility pursuant to this part. 28 (3) Paying all amounts designated by the department as 29 required to repay or defease outstanding bonds of the 30 Turnpike Commission or any other agency or instrumentality of 20080H2593B3865 - 55 -
1 the Commonwealth or required to pay amounts designated by the 2 department as owing under derivative transactions entered 3 into by the Turnpike Commission or any other agency or 4 instrumentality of the Commonwealth. 5 (4) Making pledges of funds or other payments determined 6 by the department to be necessary or desirable and 7 appropriate to advantageously address any liability under any 8 derivative transaction of the Turnpike Commission. 9 (5) Paying costs of maintenance, operation and financing 10 of transportation facilities in this Commonwealth which are 11 available for use by the public, including the costs of 12 insurance or reserves against risks or contingencies. 13 (6) Making lease, lease-purchase or purchase payments to 14 a private entity to pay for the public use of, or to gain the 15 public ownership of, a Pennsylvania Turnpike facility 16 developed, operated or financed by the private entity. 17 (7) Paying from the PSP Account established under 18 subsection (b)(3), amounts payable to the Pennsylvania State 19 Police, its successors or any other public law enforcement 20 service provider permitted to assume the responsibilities of 21 the Pennsylvania State Police for the provision of traffic 22 patrol and traffic law enforcement services on a Pennsylvania 23 Turnpike facility developed, operated or financed by a 24 private entity. 25 (8) Paying all expenses incurred under or in connection 26 with any P3 agreement by the department, the Turnpike 27 Commission or any other agency or instrumentality of the 28 Commonwealth whose funds are required to be held by the State 29 Treasurer by other applicable law, including professional 30 fees and expenses. 20080H2593B3865 - 56 -
1 (9) Paying the costs of the department and the Turnpike 2 Commission relating to performing and administering duties 3 under this part. 4 (10) Making disbursement of any loans under this part. 5 (11) Paying damages or other amounts payable by the 6 Turnpike Commission or the department pursuant to a P3 7 agreement. 8 (12) Paying all expenses approved by the board for its 9 costs incurred to perform its duties, including paying the 10 salaries of its executive director and administrative staff, 11 and its expenses for professional investment advisors and 12 professional fund managers. 13 (13) Paying costs of any other purposes authorized under 14 this part. 15 (d) Expenditures from the fund.--The department shall submit 16 to the Governor for approval detailed estimates of the amounts 17 to be expended for each purpose set forth under subsection (c). 18 Upon the approval of the Governor, the State Treasurer shall 19 disburse money from the fund, or from restricted revenue 20 accounts within the fund, or both, only for the purposes and 21 only in the amounts approved by the Governor. The State 22 Treasurer shall not disburse any money from the fund, or from 23 restricted revenue accounts within the fund, or both, in excess 24 of the amounts approved by the Governor or for any purpose not 25 approved by the Governor. 26 (e) Establishment of board and investment of fund.-- 27 (1) The P3 Investment Board is established. The board 28 shall consist of the Governor or a designee, the Secretary of 29 the Budget or a designee and the secretary or a designee. The 30 Secretary of the Budget shall serve as chairperson of the 20080H2593B3865 - 57 -
1 board, and the executive director of the board shall serve as 2 secretary of the board. All actions of the board shall be by 3 majority vote. The board shall meet not less than one time 4 each calendar quarter. Members of the board shall serve 5 without compensation, but shall be reimbursed for actual and 6 reasonable expenses incurred in the performance of their 7 official duties. 8 (2) Notwithstanding any other provision of law, the 9 board shall have exclusive control and authority to manage, 10 invest and reinvest money in the fund, subject, however, to 11 the exercise of that degree of judgment, skill and care under 12 the circumstances then prevailing that persons of prudence, 13 discretion and intelligence, who are familiar with investment 14 matters, exercise in the management of their own affairs, not 15 in regard to speculation, but in regard to permanent 16 disposition of the funds, considering the probable income to 17 be derived from the investments and the probable safety of 18 their capital. The board may hold, purchase, sell, lend, 19 assign, transfer or dispose of any securities and 20 investments, including equity securities, in which money in 21 the fund or the accounts has been invested and of the 22 proceeds of the investments, including any directed 23 commissions that have accrued to the benefit of the fund or 24 the accounts as a consequence of the investments, and of 25 money belonging to the fund or the accounts subject to the 26 standard of prudence in this section. The members of the 27 board, the executive director, administrative staff and 28 professional investment advisors and fund managers shall 29 stand in a fiduciary relationship to the Commonwealth and its 30 citizens regarding the investments of the money of the fund 20080H2593B3865 - 58 -
1 and the accounts and shall not profit, either directly or 2 indirectly, with respect thereto. The board shall consult 3 with SERS from time to time as to the board's investments. 4 (3) The board shall employ an executive director who 5 shall act as the chief administrative officer of the board. 6 The board may employ other administrative staff, professional 7 investment advisors and professional fund managers as the 8 board deems advisable. The board shall be subject to the 9 provisions of the act of April 29, 1929 (P.L.177, No.175), 10 known as The Administrative Code of 1929, and to the 11 classification and compensation practices and procedures of 12 Commonwealth agencies. The compensation of the executive 13 director and administrative staff shall be determined by the 14 Executive Board of the Commonwealth. For the purposes of the 15 act of October 15, 1980 (P.L.950, No.164), known as the 16 Commonwealth Attorneys Act, the board shall be considered an 17 executive agency. Notwithstanding any other provision of this 18 part, the Procurement Code shall apply to the board and the 19 board shall be considered an executive agency under the 20 Procurement Code. The Governor shall appoint a comptroller to 21 the board in accordance with The Administrative Code of 1929. 22 (4) All draws from the fund or the accounts shall be 23 made by the State Treasurer in accordance with requisitions 24 signed by the secretary of the board and ratified by 25 resolution of the board. 26 (5) The board shall keep a record of its proceedings, 27 which shall be open to inspection by the public. Meetings of 28 the board shall be conducted under 65 Pa.C.S. Ch. 7 (relating 29 to open meetings). 30 (6) The board shall submit through the Governor to the 20080H2593B3865 - 59 -
1 General Assembly annually, at the same time the Governor 2 submits a balanced operating budget to the General Assembly 3 for the ensuing fiscal year, a report for the 12-month period 4 ended on December 31 of the year immediately preceding the 5 submission of the report. The report shall fully detail the 6 operations of the board, identify the nature and amount of 7 all of the investments made by the board and set out all of 8 the expenses of the board, including the amounts paid to 9 professional investment advisors and fund managers. 10 (7) The General Assembly finds and declares that 11 authorized investments of the fund or the accounts made by or 12 on behalf of the board under this section whereby the board 13 becomes a joint owner, limited partner or stockholder in a 14 company, corporation, limited partnership, association or 15 other lawful business organization are outside the scope of 16 the original intent of and do not violate the prohibition set 17 forth under section 8 of Article VIII of the Constitution of 18 Pennsylvania. 19 § 9219. Special provisions relating to Turnpike Commission. 20 (a) Turnpike commissioners.--Notwithstanding any other 21 provision of law and at any time after the effective date of 22 this section, the secretary may exercise the power at his 23 discretion, at any time, and from time to time, as he may 24 determine: 25 (1) by a notice in writing addressed to each of the 26 other members of the Turnpike Commission by certified mail, 27 notifying each of them that their term of office has expired 28 as of the date of issuance of the notice, assume the duties 29 of chairman of the Turnpike Commission by virtue of his 30 holding the office of secretary, and thereafter, as the 20080H2593B3865 - 60 -
1 chairman, take any and all action and perform any other acts 2 and deeds as could be performed by a majority of or, if 3 applicable, all of the members of the Turnpike Commission, at 4 a duly called meeting of the members of the Turnpike 5 Commission at which a quorum was present throughout; or 6 (2) by a notice in writing addressed to other members of 7 the Turnpike Commission by certified mail, notify any or all 8 of the other members of the Turnpike Commission that their 9 respective terms of office have expired, upon issuance of 10 which notice the offices and any authority thereof of the 11 other members of the Turnpike Commission shall automatically 12 terminate, and appoint members of the Turnpike Commission in 13 the place and stead of those members whose terms of office 14 shall have terminated, who shall serve at his pleasure and at 15 an annual salary, not to exceed $26,000 paid in equal 16 installments every other week, to be established by the 17 secretary. 18 (b) Assumption of control.--Notwithstanding the provisions 19 of subsection (a), and either as an alternative to actions taken 20 under subsection (a) or in addition thereto, at any time after 21 the effective date of this section, the department and its 22 authorized agents and employees may, at the time as the 23 department shall determine and from time to time, exercise 24 complete authority and dominion over all assets, operations, 25 agreements, instruments and documents of, belonging to, or 26 controlled by the Turnpike Commission, as fully and to the same 27 extent as if exercised by duly authorized action of the Turnpike 28 Commission itself, in place of and to the exclusion of the 29 members of the Turnpike Commission, the exercise of authority 30 and dominion to include to the execution and delivery on behalf 20080H2593B3865 - 61 -
1 of the Turnpike Commission of any P3 agreement with any private 2 entity relating to the assets, operations, agreements, 3 instruments and documents of the Turnpike Commission or any part 4 thereof, or causing the Pennsylvania Turnpike or any part 5 thereof previously owned or operated by the Turnpike Commission 6 to become a Pennsylvania Turnpike facility pursuant to this 7 part, the exercise to be conclusively evidenced by the execution 8 and delivery of a P3 agreement or other documents or instruments 9 by the authorized agents or employees of the department on 10 behalf of the department purporting to exercise the authority 11 and dominion. 12 (c) No merger of department and Turnpike Commission.-- 13 Notwithstanding any other provision of law and notwithstanding 14 the department's execution and delivery on behalf of the 15 Turnpike Commission of any agreement, instrument or document or 16 the assumption of control of the Turnpike Commission by the 17 secretary as chairman of the Turnpike Commission, the department 18 shall not be deemed to have merged with the Turnpike Commission 19 or otherwise assumed the liabilities and obligations of the 20 Turnpike Commission except to the extent expressly provided in 21 the agreement, instrument or document. 22 (d) No change of legal rights, duties or obligations.- 23 Notwithstanding any other provision of law, no action taken by 24 the department under this section shall change the Turnpike 25 Commission's legal rights, duties or obligations, except as 26 specifically provided under this part. No law from which the 27 Turnpike Commission is currently exempt shall apply solely by 28 virtue of the department's exercise of its rights under this 29 section, nor shall any law which applies prior to any transfer 30 of control hereunder be deemed to have ceased application. 20080H2593B3865 - 62 -
1 § 9220. Delegation. 2 The department may, but is not required to, delegate one or 3 more of the actions to be performed by the department in this 4 part to the Turnpike Commission or other person excluding a 5 private entity instead of by the department. In the event of the 6 delegation, the delegatee shall, to the extent of and as 7 permitted by the delegation, have all authority of the secretary 8 under this part, and all references in this part regarding 9 action by the department shall be deemed to refer to the 10 Turnpike Commission or other person to which the authority is 11 delegated. 12 § 9221. Dispute resolution. 13 (a) Contract controversies.--The following shall apply: 14 (1) A private entity may file notice of a claim with the 15 secretary in writing for claims or controversies expressly 16 arising from a P3 agreement entered into by the Turnpike 17 Commission or the department. 18 (2) A notice of claim shall be filed with the secretary 19 within six months after the date on which the private entity 20 became aware of facts giving rise to the claim. If a private 21 entity fails to file a claim or files an untimely claim, the 22 private entity is deemed to have waived its right to assert a 23 claim in any forum. Untimely filed claims shall be 24 disregarded by the department. 25 (3) If the Turnpike Commission or the department and the 26 private entity to a P3 agreement are unable to resolve a 27 claim thereunder through mediation procedures, then the 28 Turnpike Commission or the department or the private entity 29 may file an original action to resolve the claim or dispute 30 with the Commonwealth Court pursuant to 42 Pa.C.S. § 20080H2593B3865 - 63 -
1 761(a)(4) (relating to original jurisdiction). 2 (4) The Commonwealth Court shall promptly decide the 3 controversy and, if appropriate, make an award of a sum it 4 determines the claimant is entitled to receive. 5 (5) The Turnpike Commission or the department and the 6 private entity may alter their respective rights and duties 7 under this subsection by agreement and may enter into 8 appropriate alternative dispute resolution methods, including 9 mediation and arbitration, as the department may deem in the 10 best interests of the Commonwealth. 11 (6) The provisions of 2 Pa.C.S. (relating to 12 administrative law and procedure) shall not apply to this 13 section. 14 (b) Budget request.--If an award is issued under this 15 section against the Turnpike Commission or the department and if 16 appeals of the decision issuing the award have been exhausted or 17 if the time for an appeal of the decision has expired, the P3 18 agreement may include an undertaking by the Turnpike Commission 19 or the department to submit to the Governor and the General 20 Assembly a written statement of the obligations of the Turnpike 21 Commission or the department pursuant to the award falling due 22 within the succeeding 12-month period and of the manner in which 23 the Turnpike Commission or the department anticipates providing 24 for the obligations by way of payment, extension, renewal or 25 otherwise and an estimate of the amount of funds, if any, 26 expected to be necessary to pay the award. The Governor shall 27 cause the amount of money set forth in a written statement 28 submitted to him under this section to be placed in the budget 29 of the Commonwealth for the next succeeding fiscal year so that 30 the General Assembly shall be enabled to provide appropriations 20080H2593B3865 - 64 -
1 sufficient to pay the award. 2 (c) Application.--This section shall only apply to contract 3 controversies between the Turnpike Commission, the department 4 and a private entity arising under a P3 agreement. It shall not 5 apply to contracts between a private entity and any other 6 person. 7 § 9222. Sovereign immunity. 8 (a) General rule.--The General Assembly under section 11 of 9 Article I of the Constitution of Pennsylvania reaffirms 10 sovereign immunity and, except as otherwise provided under this 11 part, no provision of this part shall constitute a waiver of 12 sovereign immunity for the purpose of 1 Pa.C.S. § 2310 (relating 13 to sovereign immunity reaffirmed; specific waiver) or otherwise. 14 (b) Exemption.--The General Assembly, under section 11 of 15 Article I of the Constitution of Pennsylvania, waives sovereign 16 immunity as a bar to claims against the Turnpike Commission, the 17 department or any other Commonwealth agencies brought in 18 accordance with sections 9203(c) and (g) (relating to P3 19 agreement) and 9221 (relating to dispute resolution), but only 20 to the extent set forth under this part. 21 § 9223. Limitations on assignment. 22 No P3 agreement with respect to a Pennsylvania Turnpike 23 facility entered into under this part shall permit a private 24 entity to assign its rights or responsibilities thereunder 25 without the express written consent of the department and the 26 Turnpike Commission, except for an assignment given as provided 27 in a P3 agreement for purposes of providing collateral security 28 to a lender or similar entity providing financing for the 29 related Pennsylvania Turnpike facility or in connection with the 30 exercise of remedies by a lender or similar entity providing 20080H2593B3865 - 65 -
1 financing to a private entity for the related Pennsylvania 2 Turnpike facility upon a default by the private entity. The P3 3 agreement may set forth the considerations to be taken into 4 account by the department and the Turnpike Commission in 5 connection with their consent to the assignment and any 6 purported assignment made without the consent is void. Without 7 their express written consent given in accordance with a P3 8 agreement, the Turnpike Commission and the department shall not 9 be required to accept performance from or render performance to 10 any private entity under the P3 agreement other than the private 11 entity that is the original party thereto. The foregoing 12 limitation on the ability of a private entity to assign its 13 rights and responsibilities under a P3 agreement shall not be 14 deemed to prohibit or limit the private entity from changing its 15 organizational form or status. 16 § 9224. Limitation of actions. 17 Pursuant to 42 Pa.C.S. § 5501(a) (relating to scope of 18 chapter), any action to contest the validity of a P3 agreement 19 may not be brought after the thirtieth day following the 20 publication in the Pennsylvania Bulletin, under section 9202(k) 21 (relating to approval), of the public announcement of the 22 execution and delivery of the P3 agreement. 23 § 9225. Exclusive jurisdiction of Supreme Court. 24 Except for matters subject to section 9221 (relating to 25 dispute resolution), the Pennsylvania Supreme Court shall have 26 exclusive jurisdiction to hear any challenge to the 27 solicitation, award, execution and delivery of a P3 agreement or 28 to render a declaratory judgment concerning the validity of a P3 29 agreement entered into under this chapter. The Supreme Court is 30 authorized to take any action as it deems appropriate, 20080H2593B3865 - 66 -
1 consistent with the Supreme Court retaining jurisdiction over 2 such a matter, to find facts or to expedite a final judgment in 3 connection with such a challenge or request for declaratory 4 relief. Notwithstanding the provisions of 2 Pa.C.S. Ch. 7 5 Subch. A (relating to judicial review of Commonwealth agency 6 action) and 42 Pa.C.S. § 763 (relating to direct appeals from 7 government agencies), the Supreme Court shall affirm all final 8 orders, determinations or decisions involving the selection of a 9 private entity to be party to a P3 agreement unless it finds 10 that the department or the Turnpike Commission committed an 11 error of law or that the order, determination or decision of the 12 department or the Turnpike Commission was arbitrary or there was 13 a capricious disregard of the evidence. 14 Section 6. Section 1901 of Title 75 is amended by adding a 15 subsection to read: 16 § 1901. Exemption of persons, entities and vehicles from fees. 17 * * * 18 (c.1) Information concerning drivers and vehicles.--No fee 19 shall be charged to a private entity party to a P3 agreement for 20 a Pennsylvania Turnpike facility under 74 Pa.C.S. Ch. 92 21 (relating to public-private transportation projects) for a copy 22 of written or electronic information relating to registration, 23 title or security interest requested under section 1955(a) 24 (relating to information concerning drivers and vehicles). 25 * * * 26 Section 7. Section 6110 of Title 75 is amended to read: 27 § 6110. Regulation of traffic on Pennsylvania Turnpike. 28 (a) General rule.--The provisions of this [title] section 29 apply upon any turnpike or highway under the supervision and 30 control of the Pennsylvania Turnpike Commission [unless 20080H2593B3865 - 67 -
1 specifically modified by rules and regulations promulgated by 2 the commission which shall become effective only upon 3 publication in accordance with law.] and any highway in respect 4 of which the Pennsylvania Turnpike Commission has entered into 5 an agreement with a private entity under 74 Pa.C.S. § 9203 6 (relating to P3 agreement). The department, or the Pennsylvania 7 Turnpike Commission with the department's written approval, may 8 promulgate rules and regulations implementing this section. A 9 copy of the rules and regulations, so long as they are 10 effective, shall be posted at all entrances to the turnpike or 11 highway for the inspection of persons using the turnpike or 12 highway. This section does not authorize the establishment of a 13 maximum speed limit greater than 55 miles per hour, except that 14 a 65-miles-per-hour maximum speed limit for all vehicles may be 15 established where the commission has posted a 65-miles-per-hour 16 speed limit. 17 (a.1) Posting.--No maximum speed limit established under 18 subsection (a)(1) or (2) shall be effective unless posted on 19 fixed or variable official [traffic-control] traffic-controlled 20 devices erected after each interchange on the portion of highway 21 on which the speed limit is in effect and wherever else the 22 commission shall determine. 23 (b) Penalties.-- 24 (1) Except as otherwise provided in this subsection, any 25 person violating any of the rules and regulations of the 26 Pennsylvania Turnpike Commission for which no penalty has 27 otherwise been provided by statute commits a summary offense 28 and shall, upon conviction, be sentenced to pay a fine of 29 $25. 30 (2) Any person violating any of the rules and 20080H2593B3865 - 68 -
1 regulations of the commission prohibiting fare evasion or 2 attempted fare evasion commits a summary offense and shall, 3 upon conviction, be sentenced to pay a fine according to the 4 classification by the commission of the vehicle driven by 5 that person at the time of violation as follows: 6 (i) Class 1 through 2: $100. 7 (ii) Class 3 through 6: $500. 8 (iii) Class 7 and higher: $1,000. 9 (2.1) The amount of the fines under paragraphs (1) and 10 (2) shall increase each January 1 over the then existing 11 amount of the fine by the lesser of 2.5% or the percentage 12 increase in the Consumer Price Index for July of the 13 preceding year over the Consumer Price Index for July of the 14 year prior to the preceding year. The Pennsylvania Turnpike 15 Commission shall transmit a notice of the resulting increase 16 in the fine to the Legislative Reference Bureau for 17 publication in the Pennsylvania Bulletin not later than 18 January 1 of each year. 19 (3) In addition to the fines imposed under this 20 subsection, restitution shall be made to the commission or 21 its authorized agent in an amount equal to the full fare, for 22 the appropriate vehicle class, from the farthest point of 23 entry on the turnpike to the actual point of exit. 24 (c) Definitions.--As used in this section, the following 25 words and phrases shall have the meanings given to them in this 26 subsection unless the context clearly indicates otherwise: 27 "Authorized agent." Any private entity party to an agreement 28 entered into with the Pennsylvania Turnpike Commission 29 concerning a Pennsylvania Turnpike facility under 74 Pa.C.S. § 30 9203 (relating to P3 agreement). 20080H2593B3865 - 69 -
1 "Consumer Price Index." The Consumer Price Index for Urban 2 Wage Earners and Clerical Workers (CPI-W) for the Northeast 3 Region, as published by the Bureau of Labor Statistics of the 4 United States Department of Labor. 5 Section 8. Sections 8915.1, 8915.2, 8915.3, 8915.4, 8915.5, 6 8915.6, 8915.7, 8917 and 8918 of Title 75 are repealed: 7 [§ 8915.1. Conversion of Interstate 80. 8 In order to facilitate vehicular traffic across this 9 Commonwealth, the commission is authorized and empowered to do 10 all of the following: 11 (1) Convert Interstate 80 to a toll road and maintain 12 and operate it as a toll road. 13 (2) Construct, reconstruct, widen, expand, extend, 14 maintain and operate Interstate 80 from a point at or near 15 the Ohio border to a point at or near the New Jersey border, 16 together with connecting roads, interchanges, slip ramps, 17 tunnels and bridges. 18 (3) Issue turnpike revenue bonds, notes or other 19 obligations, payable solely from revenues of the commission, 20 including tolls, or from funds as may be available to the 21 commission for that purpose, to pay the cost of constructing, 22 reconstructing, widening, expanding or extending Interstate 23 80 or any other costs of Interstate 80 and the Pennsylvania 24 Turnpike. 25 (4) Provide quarterly reports and periodic updates 26 regarding significant developments with respect to the 27 conversion of Interstate 80 to the chairman and minority 28 chairman of the Transportation Committee of the Senate and 29 the chairman and minority chairman of the Transportation 30 Committee of the House of Representatives. These reports 20080H2593B3865 - 70 -
1 shall include, at a minimum, the status of outstanding 2 discussions with the United States Department of 3 Transportation regarding Interstate 80, the location and 4 construction of tolling-related equipment for Interstate 80, 5 planned capital improvements for Interstate 80 and other 6 information important to implementation of this section. 7 § 8915.2. Application to United States Department of 8 Transportation. 9 (a) Application.--The commission, in consultation with the 10 department and at its own expense, is authorized to prepare and 11 submit an application to the United States Department of 12 Transportation for the conversion of Interstate 80 to a toll 13 road. The secretary shall ensure that all information required 14 for the application is made available to the commission as soon 15 as practicable after the effective date of this section. 16 (b) Open system.--A toll system shall consist of what is 17 commonly referred to as an open system with no more than ten 18 toll collection points. 19 (c) Other agreements.--The commission and the department may 20 enter into any other agreements as may be necessary to 21 effectuate the execution of the application filed under this 22 section. 23 § 8915.3. Lease of Interstate 80; related agreements. 24 The department and the commission shall enter into a lease 25 agreement relating to Interstate 80 prior to October 15, 2007. 26 The lease agreement shall include provisions setting forth the 27 terms and conditions of the conversion of Interstate 80 to a 28 toll road. The lease agreement and any related agreement, at a 29 minimum, shall include the following: 30 (1) A provision that the term of the lease agreement 20080H2593B3865 - 71 -
1 shall be 50 years, unless extended upon mutual agreement of 2 the parties to the lease agreement and upon approval of the 3 General Assembly. 4 (2) A provision establishing the conversion period and 5 authorizing extension of the conversion period at the sole 6 option of the commission for three one-year extension periods 7 after consultation with the secretary. The commission shall 8 notify the secretary of its intent to extend the conversion 9 period not less than 90 days before the scheduled expiration 10 of the conversion period. During the conversion period, all 11 legal, financial and operational responsibility for 12 Interstate 80 shall remain with the department. All 13 operations and programmed rehabilitation shall be maintained 14 at levels no less favorable than those set forth in the 15 department's 12-year plan at the time of the execution of the 16 lease, with modifications as are approved in writing by the 17 chairman of the commission. 18 (3) A provision permitting the commission to exercise 19 its option to convert Interstate 80 to a toll road prior to 20 the expiration of the conversion period by providing the 21 conversion notice to the secretary. Beginning on the 22 conversion date, all legal, financial and operational 23 responsibility for Interstate 80, as well as all toll 24 revenues subsequently collected with respect to its use, 25 shall automatically transfer to the commission. The 26 secretary, within five business days after receiving the 27 conversion notice, shall forward notice of the conversion 28 date to the Legislative Reference Bureau for publication in 29 the Pennsylvania Bulletin. Any revenues collected prior to 30 the conversion date shall be retained by the department. The 20080H2593B3865 - 72 -
1 commission may contract with the department for any portion 2 of the maintenance of Interstate 80 at cost levels agreed to 3 by the department and the commission. 4 (4) A provision requiring the commission to pay annual 5 base payments to the department during the term of the lease 6 agreement. 7 (5) A provision requiring the commission to pay annual 8 additional payments to the department. The annual additional 9 payments shall be payable in four equal installments on the 10 last business day of each July, October, January and April of 11 each year during the term of the lease agreement. 12 (6) A provision requiring the commission to pay, 13 commencing in the fiscal year including the conversion date, 14 annual surplus payments to the department. The annual surplus 15 payments shall be payable by the commission within 30 days of 16 receipt by the commission of the Auditor General's 17 certificate. 18 (7) A provision stating that the obligation of the 19 commission to pay the annual base payments, the annual 20 additional payments and annual surplus payments shall be a 21 subordinate obligation of the commission payable from amounts 22 in the general reserve fund of the commission only as 23 permitted by any financing documents, financial covenants, 24 liquidity policies or agreements in effect at the commission. 25 § 8915.4. Initial payment. 26 (a) Commission payment required.--Within 20 days after the 27 effective date of this section, the commission shall pay to the 28 department an amount equal to $62,500,000, which shall be 29 deposited into the Public Transportation Trust Fund. The amount 30 paid shall represent 25% of the amount the department is 20080H2593B3865 - 73 -
1 required to deposit into the Public Transportation Trust Fund 2 under 74 Pa.C.S. § 1506(b)(1)(i)(A) (relating to fund) and is 3 payable by the commission under the lease agreement. 4 (b) Use of payment.--The department shall allocate the funds 5 received under subsection (a) pursuant to 74 Pa.C.S. Ch. 15 6 (relating to sustainable mobility options). 7 (c) Credits.--The payment made by the commission under this 8 section shall be credited against the total amount payable by 9 the commission under the lease agreement for the 2007-2008 10 fiscal year. 11 § 8915.5. Other interstate highways. 12 In order to facilitate vehicular traffic across this 13 Commonwealth and pursuant to the authority granted under this 14 chapter, the commission is hereby authorized and empowered to: 15 (1) at its own expense and in consultation with the 16 department, prepare a consulting civil engineer report and 17 financial analysis with respect to the feasibility of 18 converting any interstate highway or interstate highway 19 segment to a toll road or adding to said interstates 20 additional capacity projects financed by tolls; and 21 (2) at its own expense and in consultation with the 22 department and with approval of the General Assembly, prepare 23 and submit an application to the United States Department of 24 Transportation for the conversion of any interstate or 25 interstate segment determined to be eligible for conversion 26 to a toll road under any applicable Federal program. 27 § 8915.6. Deposit and distribution of funds. 28 (a) Deposits.--Upon receipt by the department, the following 29 amounts from the scheduled annual commission contribution shall 30 be deposited in the Motor License Fund: 20080H2593B3865 - 74 -
1 (1) For fiscal year 2007-2008, $450,000,000. 2 (2) For fiscal year 2008-2009, $500,000,000. 3 (3) For fiscal year 2009-2010, $500,000,000. 4 (4) For fiscal year 2010-2011 and each fiscal year 5 thereafter, the amount calculated for the previous year 6 increased by 2.5%. 7 (b) Distribution.--The following shall apply: 8 (1) Annually, 15% of the amount deposited in any fiscal 9 year under subsection (a) shall be distributed at the 10 discretion of the secretary. 11 (2) Annually, $5,000,000 of the amount deposited in any 12 fiscal year under subsection (a) shall be distributed to 13 counties. 14 (i) The distribution shall be in the ratio of: 15 (A) the square footage of deck area of a 16 county's county-owned bridges; to 17 (B) the total square footage of deck area of 18 county-owned bridges throughout this Commonwealth. 19 (ii) The amount of square footage under subparagraph 20 (i) shall be that reported as part of the National Bridge 21 Inspection Standards Program. 22 (3) Annually, $30,000,000 of the amount deposited in any 23 fiscal year under subsection (a) shall be distributed to 24 municipalities pursuant to the act of June 1, 1956 (1955 25 P.L.1944, No.655), referred to as the Liquid Fuels Tax 26 Municipal Allocation Law. 27 (4) Any funds deposited under subsection (a) but not 28 distributed under paragraphs (1), (2) and (3) shall be 29 distributed in accordance with needs-based formulas that are 30 developed and subject to periodic revision based on 20080H2593B3865 - 75 -
1 consultation and collaboration among metropolitan planning 2 organizations, rural planning organizations and the 3 department. 4 (c) Definitions.--The following words and phrases when used 5 in this section shall have the meanings given to them in this 6 subsection unless the context clearly indicates otherwise: 7 "Metropolitan planning organization." The policy board of an 8 organization created and designated to carry out the 9 metropolitan transportation planning process. 10 "Rural planning organization." The organization of counties 11 with populations of less than 50,000 created and designated as 12 local development districts and which carry out the rural 13 transportation planning process. 14 § 8915.7. Impact on associated highways and local roads. 15 Prior to the conversion date and within one year following 16 the conversion date, the commission, in collaboration with the 17 department, shall conduct traffic studies to determine the 18 average daily traffic on associated roads and highways. The 19 purpose of these studies will be to quantify any diversion of 20 traffic from Interstate 80 to other roadways as a result of the 21 conversion. This section shall not require duplication of 22 traffic studies undertaken by the commission as a part of the 23 conversion process or undertaken by the department as a normal 24 course of the department's operations. 25 § 8917. Financial plan. 26 (a) Submission.-- 27 (1) No later than June 1 of each year, the commission 28 shall prepare and provide to the Secretary of the Budget a 29 financial plan for the ensuing fiscal year of the commission 30 that describes the commission's proposed: 20080H2593B3865 - 76 -
1 (i) operating and capital expenditures; 2 (ii) borrowings; 3 (iii) liquidity and other financial management 4 covenants and policies; 5 (iv) estimated toll rates; and 6 (v) all other revenues and expenditures. 7 (2) The financial plan shall demonstrate that the 8 operation of the commission in accordance with the plan can 9 reasonably be anticipated to result in the commission having 10 unencumbered funds during the ensuing and future fiscal years 11 of the commission sufficient to make the payments due to the 12 department under this chapter and the lease agreement for the 13 ensuing and future fiscal years after all other obligations 14 of the commission have been met. Financial plans prepared 15 after June 1, 2008, shall also describe any deviations that 16 occurred from the financial plan for the prior fiscal year of 17 the commission and the reasons for the deviations. 18 (b) Receipt.--If the Secretary of the Budget receives the 19 financial plan by the date required under subsection (a), the 20 commission shall be authorized to conduct its operations in 21 accordance with the plan. The financial plan may not be amended 22 by the commission unless the commission notifies the secretary 23 in writing of the amendment. 24 (c) Cooperation.--The commission shall provide to the 25 Secretary of the Budget all information requested in connection 26 with review of a financial plan, including materials used to 27 prepare the plan. The information shall be provided as soon as 28 practicable after the request. 29 (d) Effect of provisions.--Nothing in this section shall be 30 deemed to prevent the commission from conducting its normal 20080H2593B3865 - 77 -
1 course of business or prevent the commission from complying with 2 any covenants made to current bondholders, debt holders or 3 creditors. 4 (e) Lease agreement.--The provisions of this section and 5 section 8918 (relating to failure to perform) shall be included 6 in the lease agreement. 7 § 8918. Failure to perform. 8 (a) Notice.--The Secretary of the Budget shall send written 9 notice to the commission and to the Governor of the failure of 10 the commission to do any of the following: 11 (1) Make a payment to the department under this chapter 12 or the lease agreement. 13 (2) Deliver a financial plan to the Secretary of the 14 Budget within the time prescribed under section 8917 15 (relating to financial plan). 16 (b) Unanimous vote required.-- 17 (1) Except as provided under paragraph (1.1), upon the 18 receipt by the commission of the notice under subsection (a) 19 and notwithstanding any other provision of law, action of the 20 commission taken by vote of the commissioners shall require a 21 unanimous vote of all commissioners. Violation of this 22 paragraph shall render the action invalid. 23 (1.1) A unanimous vote shall not be required if it would 24 prevent the commission from complying with any covenants made 25 to current bondholders, debt holders or creditors. 26 (2) The requirement of paragraph (1) shall continue 27 until: 28 (i) the required payments have been made to the 29 department or the required financial plan has been 30 delivered; and 20080H2593B3865 - 78 -
1 (ii) the Secretary of the Budget has notified the 2 commission and the Governor of that fact.] 3 Section 9. Title 75 is amended by adding a section to read: 4 § 9511.14. Limitation on issuance of bonds. 5 After June 29, 2008, the commission shall not issue any 6 special revenue bond, note or other obligation under this 7 chapter unless the department causes a notice to be published in 8 the Pennsylvania Bulletin stating that negotiations with the 9 private entity selected as the winning bidder for a Pennsylvania 10 Turnpike facility have been terminated after the award of the P3 11 agreement but prior to the execution of the agreement or that 12 the initial P3 agreement for a Pennsylvania Turnpike facility 13 has been terminated prior to the lease and demise of the 14 Pennsylvania Turnpike facility to a private entity under the P3 15 agreement. 16 Section 10. The following shall apply: 17 (1) The Department of Transportation and the 18 Pennsylvania Turnpike Commission are authorized and directed 19 to terminate the lease agreement relating to Interstate 80 20 within 30 days of the date on which the notice is published 21 under section 11(1) of this act. 22 (2) During the period beginning on the effective date of 23 this section and ending on the date on which the notice is 24 published under section 11(2) of this act, the commission 25 shall not be required to make any annual base payments, 26 annual additional payments or annual surplus payments to the 27 department. 28 (3) Any annual base payments, annual additional payments 29 or surplus payments made by the commission to the department 30 under the lease agreement relating to Interstate 80 prior to 20080H2593B3865 - 79 -
1 the effective date of this section shall be retained by the 2 department and applied as provided under former 75 Pa.C.S. § 3 8915.6. 4 (4) Actions taken with respect to the issuance of a 5 request for qualifications and the selection by the 6 department of a private entity to be party to a P3 agreement 7 for a Pennsylvania Turnpike facility made prior to the 8 effective date of this section that would have been valid 9 under 74 Pa.C.S. Ch. 92 are ratified and validated. 10 Section 11. The following shall apply: 11 (1) The Secretary of Transportation shall transmit 12 notice of the demise and lease of a Pennsylvania Turnpike 13 facility to a private entity under a P3 agreement entered 14 into under 74 Pa.C.S. Ch. 92 to the Legislative Reference 15 Bureau for publication in the Pennsylvania Bulletin. 16 (2) The Secretary of Transportation shall transmit 17 notice of the termination of negotiations with the private 18 entity selected as the winning bidder for a Pennsylvania 19 Turnpike facility prior to the execution of a P3 agreement or 20 the termination of a P3 agreement for a Pennsylvania Turnpike 21 facility entered into under 74 Pa.C.S. Ch. 92 after the award 22 of the agreement but prior to the lease and demise of the 23 facility to a private entity, to the Legislative Reference 24 Bureau for publication in the Pennsylvania Bulletin. 25 Section 12. Repeals are as follows: 26 (1) The General Assembly declares that the repeal under 27 paragraph (2) is necessary to effectuate the addition of 74 28 Pa.C.S. Pt. V. 29 (2) Section 15 of the act of May 21, 1937 (P.L.774, 30 No.211), entitled "An act to facilitate vehicular traffic 20080H2593B3865 - 80 -
1 between the eastern and western sections of the Commonwealth 2 by providing for the construction, operation and maintenance 3 of a turnpike from a point at or near Middlesex in Cumberland 4 County to a point at or near Irwin in Westmoreland County; 5 providing for the creation of the Pennsylvania Turnpike 6 Commission, and conferring powers and imposing duties on said 7 commission; authorizing the issuance of turnpike revenue 8 bonds of the Commonwealth, payable solely from tolls, to pay 9 the cost of such turnpike; providing that no debt of the 10 Commonwealth shall be incurred in the exercise of any of the 11 powers granted by this act; providing for the collection of 12 tolls for the payment of such bonds and for the cost of 13 maintenance, operation and repair of the turnpike; making 14 such bonds exempt from taxation; constituting such bonds 15 legal investments in certain instances; prescribing 16 conditions upon which such turnpike shall become free; 17 providing for condemnation; granting certain powers and 18 authority to municipal subdivisions and agencies of the 19 Commonwealth to cooperate with the commission; and 20 authorizing the issuance of turnpike revenue refunding 21 bonds," is repealed. 22 (3) The provisions of 74 Pa.C.S. Ch. 81 are repealed to 23 the extent they are inconsistent with the provisions of 74 24 Pa.C.S. § 9219. 25 (4) All act and parts of acts are repealed to the extent 26 they are inconsistent with the provisions of this act. 27 Section 13. This act shall take effect as follows: 28 (1) Sections 1, 3 and 8 of this act shall take effect 29 upon publication of the notice under section 11(1) of this 30 act. 20080H2593B3865 - 81 -
1 (2) The remainder of this act shall take effect 2 immediately. E27L74RLE/20080H2593B3865 - 82 -