THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY GEIST, McGEEHAN, AUMENT, BAKER, BENNINGHOFF, BOYD, BROOKS, CALTAGIRONE, CARROLL, CAUSER, CHRISTIANA, CLYMER, P. COSTA, CREIGHTON, CUTLER, DENLINGER, ELLIS, J. EVANS, EVERETT, FARRY, FLECK, GIBBONS, GILLESPIE, GINGRICH, GRELL, GROVE, HALUSKA, HARHAI, HARHART, HARPER, HARRIS, HESS, HICKERNELL, HORNAMAN, HUTCHINSON, KAUFFMAN, M.K. KELLER, W. KELLER, MAHER, MARSHALL, MARSICO, MILLER, MILNE, MUSTIO, OBERLANDER, PAYNE, PAYTON, PICKETT, PYLE, QUINN, RAPP, REED, REICHLEY, SAYLOR, SCHRODER, K. SMITH, SONNEY, STERN, STEVENSON, TALLMAN, TOEPEL, TURZAI, VULAKOVICH, WAGNER, WATSON AND EVANKOVICH, FEBRUARY 14, 2011

REFERRED TO COMMITTEE ON TRANSPORTATION, FEBRUARY 14, 2011  

AN ACT

Amending Title 74 (Transportation) of the Pennsylvania

Consolidated Statutes, providing for public-private

transportation partnerships; and making a related repeal.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Title 74 of the Pennsylvania Consolidated

Statutes is amended by adding a part to read:

PART V

TRANSPORTATION INFRASTRUCTURE

CHAPTER 91

PUBLIC-PRIVATE TRANSPORTATION PARTNERSHIP

Sec.

9101.  Scope of chapter.

9102.  Findings and declaration of policy.

9103.  Definitions.

9104.  Regulations.

9105.  Project delivery methods.

9106.  Approval.

9107.  Public-private transportation partnership agreement.

9108.  Police powers and violations of law.

9109.  Environmental and other authorizations.

9110.  Taxation of authorized development entity or entities.

9111.  Power of eminent domain.

9112.  Sovereign immunity.

9113.  Amounts payable by proprietary public entities and

specific performance.

9114.  Design-build development and Separations Act.

9115.  Additional procurement provisions.

9116.  Adverse interest.

9117.  Application of chapter.

9118.  Federal, Commonwealth, local and private assistance.

9119.  Public-Private Transportation Account.

9120.  Public-Private Transportation Partnership Board.

9121.  Duties and powers of board.

9122.  Role of department in operation of board.

§ 9101.  Scope of chapter.

This chapter relates to public-private transportation

partnerships.

§ 9102.  Findings and declaration of policy.

(a)  Legislative findings and declarations.--The General

Assembly finds, determines and declares as follows:

(1)  There is urgent public need to reduce congestion,

increase capacity, improve safety and enhance economic

efficiency of transportation facilities throughout this

Commonwealth.

(2)  The Commonwealth has limited resources to fund the

maintenance and expansion of its transportation facilities.

(3)  To ensure the needs of the public are adequately

addressed, alternative funding mechanisms and strategies must

be developed to supplement existing public revenue sources.

(4)  The imposition of user fees establishes an

additional funding source for transportation infrastructure

needs that spreads the costs across those who most benefit

from the Commonwealth's system of roads, highways and

bridges.

(5)  The imposition of user fees and the development,

operation, maintenance, construction and improvement of toll

roads is a proprietary function which may be delegated to a

private entity consistent with section 31 of Article III of

the Constitution of Pennsylvania.

(6)  Authorizing public entities to enter into

transportation development agreements with private entities

and other public entities for the development, operation and

financing of transportation facilities can result in greater

availability of transportation facilities to the public in a

timely, efficient and less costly fashion, thereby serving

the public safety and welfare.

(7)  Assuring that qualifying transportation projects are

developed, operated and financed in a cost-effective manner

is an important factor in promoting the health, safety and

welfare of the citizens of this Commonwealth.

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

(1)  To encourage private entities to invest in this

Commonwealth by participating in the development, operation

and/or financing of transportation facilities.

(2)  To accomplish the goals under subsection (a) and

paragraph (1), and to provide the policies set forth in this

chapter to provide public entities and private entities with

the flexibility in contracting with each other for and in

providing of the public services that are the subject of this

title.

(3)  To accomplish the goals under subsection (a) and

paragraph (1), and provide the policies set forth in this

chapter to make clear that public entities are authorized and

empowered to contract with private entities for and in

providing the public services which are the subject of this

title.

(4)  To establish a board with the authority to authorize

the charging of user fees consistent with the goals under

subsection (a) and paragraph (1).

§ 9103.  Definitions.

The following words and phrases when used in this chapter

shall have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Account."  The Public-Private Transportation Account.

"Board."  The Public-Private Transportation Partnership

Board.

"Department."  The Department of Transportation of the

Commonwealth.

"Development entity."  Any of the following:

(1)  A private entity.

(2)  A public entity, other than the proprietary public

entity.

(3)  A partnership of entities proposing, bidding or

responding to a solicitation by the Department of

Transportation or a proprietary public entity.

"Electronic toll."  A system of collecting tolls or charges

that is capable of charging an account holder for the prescribed

toll by electronic transmission of information, including open

road tolling, video tolling or other similar structural or

technological enhancements pertaining to tolling.

"Private entity."  A person, entity or organization that is

not the Federal Government, a state, a political subdivision of

this Commonwealth or a unit of government.

"Proprietary public entity."  A public entity that owns the

eligible transportation facility that is subject to a public-

private transportation partnership agreement.

"Public entity."  The Commonwealth or any of its departments,

commissions, authorities, agencies or a unit of government. The

term includes the Department of Transportation and the

Pennsylvania Turnpike Commission. The term does not include the

General Assembly and its members, officers or agencies or any

court or other office or agency of the Pennsylvania judicial

system.

"Public-private transportation partnership agreement."  A

binding agreement for a public-private transportation project

transferring rights for the use or control, in whole or in part,

of a transportation facility by the Department of Transportation

or a proprietary public entity to a development entity for a

definite term during which the development entity will provide

transportation-related services in return for the right to

receive all or a portion of the revenue of the transportation

facility, or other payment, such as the following

transportation-related services:

(1)  Operations and maintenance.

(2)  Revenue collection.

(3)  User fee collection or enforcement.

(4)  Design.

(5)  Construction.

(6)  Development and other activities with respect to

existing or new transportation facilities that enhance

traffic throughput, reduce congestion, improve safety or

otherwise manage or improve a transportation facility.

"Public-private transportation project."  A project for the

safe transport of people or goods via one or more modes of

transport.

"Right-to-Know Law."  The act of February 14, 2008 (P.L.6,

No.3), known as the Right-to-Know Law.

"Solicitation."  The process by which the Department of

Transportation or a proprietary public entity may elect to

procure services under section 9106(b) (relating to approval).

"State Adverse Interest Act."  The act of July 19, 1957

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

"Transportation facility."  A proposed or existing road,

bridge, tunnel, overpass, ferry, busway, guideway, public

transportation facility, vehicle parking facility, port

facility, multimodal transportation facility, airport, station,

hub, terminal or similar facility used or to be used for the

transportation of persons, animals or goods, together with any

buildings, structures, parking areas, appurtenances and other

property needed to operate the transportation facility. The term

includes any improvements or substantial enhancements or

modifications to an existing transportation facility.

"Unit of government."  Any of the following:

(1)  An agency, office or department of the Commonwealth.

(2)  A city, county, district, commission, authority,

entity, port or other public corporation organized and

existing under statutory law, voter-approved charter or

initiative.

(3)  An intergovernmental entity.

§ 9104.  Regulations.

(a)  Promulgation.--In order to facilitate the implementation

of this chapter, the department shall promulgate regulations or

publish guidelines that include any of the following:

(1)  The process for review of request for solicitations

or responses to requests for solicitations issued by the

department or a proprietary public entity.

(2)  The process for receipt and review of and response

to competing responses to requests for solicitations.

(3)  The type and amount of information that is necessary

for adequate review of and response to each state of review

of a solicitation.

(4)  The process for submission and review of requests to

the department and the board by public entities for approval

of a public-private transportation project under this

chapter.

(5)  Any other provisions which are required under this

chapter or which the department determines are appropriate

for implementation of this chapter.

(b)  Temporary regulations.--Notwithstanding any other

provision of law and in order to facilitate the prompt

implementation of this chapter, any regulation promulgated by

the department under this chapter during the two years following

the effective date of this section shall be deemed temporary

regulations which shall expire no later than three years

following the effective date of this section or upon

promulgation of final regulations. The temporary regulations

shall not be subject to any of the following:

(1)  Sections 201, 202, 203 and 204 of the act of July

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

Documents Law.

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

the Regulatory Review Act.

§ 9105.  Project delivery methods.

The department shall provide for the development or operation

of eligible facilities using a variety of project delivery

methods and forms of agreement. The methods may include:

(1)  Predevelopment agreements leading to other

implementing agreements.

(2)  A design-build agreement.

(3)  A design-build-maintain agreement.

(4)  A design-build-finance-operate agreement.

(5)  A design-build-operate-maintain agreement.

(6)  A design-build-finance-operate-maintain agreement.

(7)  A concession providing for the private entity to

design, build, operate, maintain, manage or lease an eligible

transportation facility.

(8)  Any other project delivery method or agreement or

combination of methods or agreements that the department

determines will serve the public interest.

§ 9106.  Approval.

(a)  Authorization.--The department or a proprietary public

entity, upon approval by the board, is authorized to enter into

an agreement with a development entity for the purpose of

forming a public-private transportation partnership in

accordance with this chapter.

(b)  Solicitation.--The department or a proprietary public

entity may procure services under this chapter using any or all

of the following:

(1)  Request for project proposals in which is described

a class of transportation facilities or a geographic area in

which development entities are invited to submit proposals to

develop transportation facilities.

(2)  Solicitations using requests for qualifications,

short-listing of qualified proposers, requests for proposals,

negotiations, best and final offers or other procurement

procedures.

(3)  Procurements seeking development and finance plans

most suitable for the project.

(4)  Best value selection procurements based on price,

financial proposals, or both, or other factors determined to

be relevant to a decision that is in the best interest of the

Commonwealth or the proprietary public entity.

(5)  Other procedures that the department determines may

further the implementation of this chapter.

(6)  Unsolicited proposals as recommended by the board if

the board, in consultation with the department, determines

there is sufficient merit to pursue the proposal, a

reasonable opportunity for other entities to submit competing

proposals for consideration and a possible contract award.

(c)  Notice.--The department or a proprietary public entity

must give adequate public notice of any request for

qualifications, request for proposal or other solicitation in a

reasonable amount of time prior to any deadline date for

submission. The solicitation shall generally set forth the

factors that will be evaluated and the manner in which responses

will be evaluated.

(d)  Costs.--

(1)  The department and a proprietary public entity and

their respective advisers shall not be responsible for any

costs or damages incurred by a private entity in connection

with any requests for qualifications, requests for proposals

or other solicitations.

(2)  The department or a proprietary public entity may,

in their discretion, elect to pay a stipend to unsuccessful

offerors who have submitted responsive proposals, bids and

other materials in response to a request for proposals or

other solicitation. Stipends may be made available solely to

defray the costs of proposal or response preparation. The

availability of a stipend and the conditions necessary to

qualify for payment shall be included in the request for

proposals or other solicitation.

(3)  The department or a proprietary public entity may

charge and retain an administrative fee for the evaluation of

a public-private transportation partnership proposal as

recommended by the board.

(e)  Modification and termination rights.--

(1)  The department or a proprietary public entity may

modify a solicitation request if it determines the

modification to be in the best interest of the Commonwealth

or proprietary public entity.

(2)  A solicitation request may be canceled at any time

prior to the time a public-private transportation partnership

agreement is executed, if the department or the proprietary

public entity determines, on a case-by-case basis, that the

action is in the best interest of the Commonwealth or the

proprietary public entity. The reasons for cancellation shall

be made a part of the file.

(3)  A submission and offer made in response to the

solicitation request may be rejected at any time prior to the

time a public-private transportation partnership agreement is

executed, if the department or the proprietary public entity

determines, on a case-by-case basis, that the action is in

the best interest of the Commonwealth or the proprietary

public entity. The reasons for rejection shall be made part

of the file.

(4)  A decision to modify, cancel or reject any request

for solicitation shall be final and unreviewable.

(5)  The issuance for a request for solicitation in no

way shall obligate the department or a proprietary public

entity to enter into a public-private transportation

partnership agreement or a contract of any kind with a party.

(f)  Selection criteria, evaluation and award by the

department or a proprietary public entity.--

(1)  In evaluating proposals, the department or a

proprietary public entity shall obtain the best value for the

Commonwealth or the proprietary public entity and may accord

relative weight to factors such as cost, financial

commitment, innovative financing, technical, scientific,

technological or socioeconomic merit, financial strength and

viability and other factors as deemed appropriate.

(2)  The department or a proprietary public entity may

conduct discussions with development entities to assure

understanding of and responsiveness to the requirements of a

request for qualifications.

(3)  The department or a proprietary public entity shall

conduct a public and competitive process to award a public-

private transportation partnership agreement.

(4)  The department or a proprietary public entity shall

accept for contract negotiation the responsive and

responsible development entity whose proposal is determined

in writing to be the most advantageous to the Commonwealth or

the proprietary public entity, taking into consideration

price and all evaluation factors.

(5)  The department or a proprietary public entity may

require that any bid or proposal submitted to enter into a

public-private transportation partnership agreement be

accompanied by security in the form of cash, letters of

credit or other financial security acceptable to the

department or the proprietary public entity.

(6)  The department or a proprietary public entity may

retain financial, technical, legal and other consultants and

experts to assist in the evaluation, negotiation and

development of eligible facilities under this chapter.

(g)  Use of intellectual property.--Unless otherwise agreed

and except to the extent not transferable by law, the department

or a proprietary public entity shall have the right to use all

or a portion of a response to a solicitation, including the

technologies, techniques, methods, processes and information

contained in the response. Notice of nontransferability by law

shall be given to the department in response to the request for

qualifications.

(h)  Records of solicitation requests.--Notwithstanding the

Right-to-Know Law, the following shall apply:

(1)  Upon the selection of a development entity to be a

party to a public-private transportation partnership

agreement, the identity of the development entity selected,

the contents of the response of the development entity to the

request for qualifications, the final bid or proposal

submitted by the development entity and the form of the

public-private transportation agreement shall be made public.

Any financial information of a development entity that was

requested in a request for qualifications or a solicitation

to demonstrate the economic capability of a development

entity to fully perform the requirements of the public-

private transportation partnership agreement and which is

contained in a response to a request for qualifications shall

not be subject to public inspection.

(2)  If the department or a proprietary public entity

terminates a public-private transportation partnership

agreement for default, rejects a development entity or a

person on the grounds that the development entity is not

responsible or suspends or debars a development entity or a

person, the development entity or person shall, upon written

request, be provided with a copy of the information contained

in the file of the development entity or person maintained by

the department, the Office of the Budget and the Department

of General Services or a proprietary public entity under a

contractor responsibility program.

(3)  A record, material or data received, prepared, used

or retained by the department or a proprietary public entity

or their employees, consultants or agents in connection with

the evaluation of requests for qualifications shall not

constitute a public record subject to public inspection under

the Right-to-Know Law if, in the reasonable judgment of the

department or the proprietary public entity, the inspection

would cause substantial competitive harm to the entity or

person from whom the information was received.

(i)  Diversity.--

(1)  It is the intent and goal of the General Assembly

that the department and proprietary public entities promote

and ensure diversity in all aspects of development and

operation of a public-private transportation project

authorized under this chapter. The department and proprietary

public entities shall work to enhance the representation of

diverse groups in the development and operation by private

entities of any public-private transportation project through

the participation of business enterprises utilized by

development entities and through the provision of goods and

services utilized by development entities in the development

and operation of any public-private transportation project

authorized under this chapter.

(2)  The department is authorized to investigate and

conduct periodic studies to ascertain whether effective and

meaningful action has been taken or will be taken to enhance

the representation of diverse groups in the development and

operation by development entities of any public-private

transportation project in this Commonwealth through the

participation of business enterprises utilized by development

entities in the development and operating of any public-

private transportation project under this chapter and through

the provision of goods and services utilized by development

entities in the development and operation of any public-

private transportation project and through employment

opportunities.

§ 9107.  Public-private transportation partnership agreement.

(a)  Agreement provisions.--A public-private transportation

partnership agreement shall include the following provisions:

(1)  A description of any planning, development, design,

leasing, acquisition or interest in, financing, installation,

construction, reconstruction, replacement, expansion,

operation, maintenance, improvement, equipping, modification,

expansion, enlargement, management, running, control and

operation of the transportation facility.

(2)  The term of the public-private transportation

partnership agreement.

(3)  The type of property interest or other relationship

the development entity will have in or with respect to the

project, including acquisition of rights-of-way and other

property interests that may be required.

(4)  Authorization for the department and the proprietary

public entity, or their authorized representatives, to

inspect all assets and properties of the transportation

facility and all books and records of the development entity

relating to the eligible transportation facility to review

the development entity's performance under the public-private

transportation partnership agreement.

(5)  Grounds for termination of the public-private

transportation partnership agreement by the parties.

(6)  Procedures for amendment of the public-private

transportation partnership agreement.

(7)  The rights and remedies available in the event of

breach, default or delay.

(8)  Requirements for a private development entity to

provide performance and payment bonds, parent company

guarantees, letters of credit or other acceptable forms of

security in an amount acceptable to the proprietary public

entity.

(9)  A requirement that the transportation facility

acquired or constructed is public property that is leased to

the development entity and belongs to the proprietary public

entity.

(10)  Standards for construction, maintenance and

operation of the transportation facility if the activities

are to be performed by the development entity.

(11)  Standards for capital improvement or modification

of the transportation facility if they are to be made by the

development entity.

(12)  Standards relating to how payments, if any, are to

be made by the proprietary public entity to the development

entity, including availability payments, performance-based

payment and payments of money and revenue-sharing with the

development entity.

(13)  Standards relating to how the parties will allocate

and share management of the risks of the project.

(14)  Standards relating to how the parties will allocate

costs of development of the project, including any cost

overruns.

(15)  Standards relating to damages to be assessed for

nonperformance, specifying remedies available to the parties

and dispute resolution procedures.

(16)  Standards relating to performance criteria and

incentives.

(17)  A requirement that upon termination of the public-

private transportation partnership agreement, the

transportation facility must be in a state of proper

maintenance and repair and shall be returned to the

proprietary public entity in satisfactory condition at no

further cost to the proprietary public entity.

(18)  Provisions for law enforcement of the public

transportation facility.

(19)  An obligation of the private entity to offer

employment to any employee of the department or proprietary

public entity who would lose employment due to the execution

of the public-private partnership agreement and who is in

good standing at the time of execution of the partnership

agreement, including salary, retirement, health and welfare,

and benefits which are substantially identical to the

benefits received by the employees immediately prior to

execution of the partnership agreement.

(20)  Other terms and provisions as required under this

chapter.

(21)  Other terms and conditions as may be agreed between

the private entity and the department or the proprietary

public entity.

(b)  Term.--The department or a proprietary public entity may

enter into a public-private transportation partnership agreement

with any development entity that includes the provisions under

subsection (a) for a term not to exceed 99 years.

(c)  Public partner.--Nothing in this chapter shall prohibit

the department from entering into a partnership agreement with

another Commonwealth agency for purposes of forming a

transportation partnership in accordance with this chapter.

(d)  Propriety public entity.--Nothing in this chapter shall

prohibit any propriety public entity from entering into a

public-private transportation partnership agreement with one or

more public entities for purposes of forming a transportation

partnership in accordance with this chapter.

(e)  Environmental costs.--

(1)  The department or any other proprietary public

entity may provide in a public-private transportation

partnership agreement that it will pay or reimburse, on terms

that it deems appropriate, the development entity for actual

costs associated with necessary remediation, including

investigation activities, for existing environmental

contaminants if any are on, under or emanating from the real

property associated with a transportation facility as of the

date the development entity assumes responsibility for the

transportation facility. If provision is made under this

paragraph, the public-private transportation partnership

agreement shall require that the proprietary public entity be

given:

(i)  Prompt notice of any claim against the third

party pertaining to the contaminants.

(ii)  The right to elect to undertake the necessary

remediation.

(iii)  The right to participate in the defense of or

response to any claim.

(iv)  The right of prior approval before the

development entity may settle any claim.

(2)  No payment by the department or any other

proprietary public entity under this section may be for

anything other than, or extend beyond, actual losses,

liabilities, damages, penalties, charges, costs and expenses

incurred by a private entity to remediate the environmental

contamination on, under or emanating from the real property

associated with the transportation facility as of the date

the development entity assumes responsibility for the

transportation facility.

(f)  User fees.--A provision establishing whether user fees

will be collected for use of the transportation facility and the

basis by which any user fees shall be determined in the public-

private transportation partnership agreement. If a user fee is

proposed as part of the public-private transportation

partnership project, the department or a proprietary public

entity shall include provisions in the agreement that authorize

the collection of user fees, tolls, fares or similar charges,

including provisions that:

(1)  Specify technology to be used in the transportation

facility.

(2)  Establish circumstances under which the department

or the proprietary public entity may receive a share of

revenues from the charges.

(3)  Govern the enforcement of electronic tolls,

including provisions for use of available technology.

(4)  Establish payment collection standards, including

provisions for enforcement of nonpayment and penalties.

(5)  In the event an operator of a vehicle fails to pay

the prescribed toll or user fee at any location on a

transportation facility where tolls or user fees are

collected by means of an electronic or other automated or

remote form of collection, the collection provisions of

section 8117 (relating to electronic toll collection) shall

apply except that the private entity shall possess all of the

rights, roles, limitations and responsibilities of the

Pennsylvania Turnpike Commission.

(g)  Amounts received under a public-private transportation

partnership agreement.--The net proceeds received by the

department or the proprietary public entity under a public-

private transportation partnership agreement shall be available

exclusively to provide funding for transportation needs in this

Commonwealth. The use of the proceeds or other revenues from the

transportation facility shall comply with Federal or State law

restricting or limiting the use of revenue from the

transportation facility based on its public funding.

§ 9108.  Police powers and violations of law.

(a)  Enforcement of traffic laws.--To the extent the public-

private transportation facility is a highway, bridge, tunnel

overpass or similar transportation facility for motor vehicles,

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

applicable, any local jurisdiction shall be the same as those

applying to conduct on similar transportation facilities in this

Commonwealth or the local jurisdiction. Punishment for offenses

shall be prescribed by law for conduct occurring on similar

transportation facilities in this Commonwealth or the local

jurisdiction.

(b)  Arrest powers.--All officers authorized by law to make

arrests for violations of law in this Commonwealth shall have

the same powers, duties and jurisdiction within the limits of a

public-private transportation project as they have in their

respective areas of jurisdiction. The grant of authority under

this section shall not extend to the private offices, buildings,

garages and other improvements of a private entity to any

greater degree than the police power extends to any other

private offices, buildings, garages and other improvements.

§ 9109.  Environmental and other authorizations.

(a)  No submission of plan under The Administrative Code of

1929.--Notwithstanding any other provision of law, neither

soliciting nor approving a request for qualification, nor

executing a public-private transportation partnership agreement

under this chapter shall constitute the submission of a

preliminary plan or design to the department under section

2002(b) of the act of April 9, 1929 (P.L.177, No.175), known as

The Administrative Code of 1929.

(b)  Environmental authorizations.--A public-private

transportation partnership agreement may require that prior to

commencing any construction in connection with the development,

operation or financing of any eligible transportation facility

if the agreement requires environmental authorizations to be

obtained, the development entity shall do any of the following:

(1)  Secure all necessary environmental permits and

authorizations and, if specified under the act of May 19,

1995 (P.L.4, No.2), known as the Land Recycling and

Environmental Remediation Standards Act, obtain the approval

of the Department of Environmental Protection.

(2)  Complete environmental remediation of the site on

which the eligible transportation facility is or is to be

located, including acts required under any agreement entered

into with the Department of Environmental Protection for

remediation of the site under the Land Recycling and

Environmental Remediation Standards Act.

§ 9110.  Taxation of authorized development entity or entities.

(a)  General rule.--To the extent that revenues or user fees

received by a development entity or entities pursuant to a

public-private transportation partnership agreement are subject

to a tax imposed by a political subdivision prior to the

effective date of this section, the revenues or user fees shall

continue to be subject to the tax and to future increases in the

rate of the tax.

(b)  New taxation barred.--After the effective date of this

section, no new tax shall be imposed by a political subdivision

or the Commonwealth on the revenues or user fees received by a

development entity or entities pursuant to a public-private

transportation partnership agreement.

(c)  Realty transfer tax.--No public-private transportation

partnership agreement, lease, concession, franchise or other

contract involving real property of a public-private

transportation project shall be subject to a Commonwealth or

local realty transfer tax imposed under the act of December 31,

1965 (P.L.1257, No.511), known as The Local Tax Enabling Act,

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

Code of 1971, or a successor statute.

(d)  Property.--Property used in connection with a public-

private transportation project shall be considered public

property and shall be exempt from ad valorem property taxes and

special assessments levied against property by the Commonwealth

or any political subdivision.

§ 9111.  Power of eminent domain.

The exercise of the power of eminent domain by any condemnor

to acquire property for transportation facility purposes under a

public-private transportation partnership agreement shall be

considered a taking for a public purpose and not for a private

purpose or for private enterprise.

§ 9112.  Sovereign immunity.

(a)  General rule.--The General Assembly, under section 11 of

Article I of the Constitution of Pennsylvania, reaffirms

sovereign immunity and, except as otherwise provided under

subsection (b), no provision of this chapter shall constitute a

waiver of sovereign immunity for the purpose of 1 Pa.C.S. § 2310

(relating to sovereign immunity reaffirmed; specific waiver) or

otherwise.

(b)  Exemption.--The General Assembly, under section 11 of

Article I of the Constitution of Pennsylvania, waives sovereign

immunity as a bar to claims against the department and any other

department, commission, authority or agency of the Commonwealth

or any authority or political subdivision brought in accordance

with sections 9107(e) (relating to public-private transportation

partnership agreement) and 9113 (relating to amounts payable by

proprietary public entities and specific performance), but only

to the extent set forth under this chapter.

§ 9113.  Amounts payable by proprietary public entities and

specific performance.

(a)  Authorization for payments.--The department or any other

proprietary public entity is authorized to agree to make

payments to a development entity pursuant to a public-private

transportation partnership agreement under any of the following:

(1)  Upon a breach by the proprietary public entity of

its representations, covenants, warranties or other

obligations under the public-private transportation

partnership agreement.

(2)  If the proprietary public entity takes adverse

actions against the development entity in violation of the

terms of the public-private transportation partnership

agreement.

(3)  Upon the occurrence of force majeure or other events

that have a material adverse effect on the ability of the

development entity to perform its obligations under the

public-private transportation partnership agreement or to

obtain the benefits of the public-private transportation

partnership agreement.

(b)  Reason for payments.--The payments made by a proprietary

public entity pursuant to a public-private transportation

partnership agreement may be for:

(1)  Losses, liabilities, damages, penalties, costs and

expenses of the development entity.

(2)  Amounts necessary to restore the development entity

to the same after-tax economic position it would have been in

had the event in question not occurred.

(3)  Amounts necessary to pay the fair market value of

the interest, benefits and rights of the development entity

and the rights and obligations of the development entity

created and made under the public-private transportation

partnership agreement.

(c)  Specific performance.--A proprietary public entity is

authorized to agree that specific performance shall be available

to a development entity as a remedy for a breach by the

proprietary public entity of its representations, covenants,

warranties or other obligations under the public-private

transportation partnership agreement to the extent set forth in

the public-private transportation partnership agreement.

§ 9114.  Design-build development and Separations Act.

Notwithstanding any other provision of law:

(1)  Any public-private transportation partnership

project undertaken under this chapter may provide design-

build, design-build-operate, design-build-operate-maintain,

and operate-maintain procurements and other innovative or

nontraditional competitive procurement methods for

transportation-related infrastructure development.

(2)  A development entity or entities shall be subject to

the requirements of the act of May 1, 1913 (P.L.155, No.104),

referred to as the Separations Act, in connection with the

development or operation of a public-private transportation

project authorized under this chapter.

§ 9115.  Additional procurement provisions.

To the extent applicable to the proprietary public entity,

the following provisions shall apply to a contract entered into

between the department or a proprietary public entity and an

authorized development entity related to the development,

operation or financing of a public-private transportation

project under this chapter:

(1)  The act of August 15, 1961 (P.L.987, No.442), known

as the Pennsylvania Prevailing Wage Act.

(2)  The act of July 23, 1968 (P.L.686, No.226),

entitled, "An act equalizing trade practices in public works

procurement; authorizing the purchase by the Commonwealth,

its political subdivisions, and all public agencies, of

aluminum and steel products produced in a foreign country,

provided the foreign country does not prohibit or

discriminate against the importation to, sale or use in the

foreign country of supplies, material or equipment

manufactured in this Commonwealth; establishing procedures

for determining whether foreign countries discriminate

against supplies, materials or equipment manufactured in this

Commonwealth; and imposing penalties and providing for relief

for violation of this act."

(3)  The act of March 3, 1978 (P.L.6, No.3), known as the

Steel Products Procurement Act.

(4)  62 Pa.C.S. § 107 (relating to reciprocal

limitations).

(5)  62 Pa.C.S. § 531 (relating to debarment or

suspension).

(6)  62 Pa.C.S. § 541 (relating to approval of accounting

system).

(7)  62 Pa.C.S. § 551 (relating to right to inspect

plant).

(8)  62 Pa.C.S. § 552 (relating to right to audit

records).

(9)  62 Pa.C.S. § 563 (relating to retention of

procurement records).

§ 9116.  Adverse interest.

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

apply:

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

entity which submits a response to a request for solicitation

under section 9106(b) (relating to approval) or an

unsolicited proposal and which is also a State adviser or a

State consultant for the department or the Pennsylvania

Turnpike Commission shall not be deemed to be in violation of

the State Adverse Interest Act while engaging in any of the

following activities:

(i)  Preparing or submitting a response to a request

for qualifications.

(ii)  Participating in any activity with the

department related to a request for solicitation.

(iii)  Negotiating and entering into any contract

lease or public-private transportation partnership

agreement which results from a request for solicitation.

(iv)  Engaging in any other action taken in

furtherance of the purposes of this chapter.

(2)  A private entity which submits a response to a

request for solicitation or acts as a consultant or an

adviser to a private entity which submits a response to a

request for solicitation to the department shall be

prohibited from consulting or providing advice to the

department on the review or approval of the response to the

request for solicitations as submitted.

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

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

subsection unless the context clearly indicates otherwise:

"State adviser."  As defined in the State Adverse

Interest Act.

"State consultant."  As defined in the State Adverse

Interest Act.

§ 9117.  Application of chapter.

(a)  Applicability.--This chapter shall apply to public-

private transportation partnership agreements between

proprietary public entities, other public entities and

development entities for public-private transportation projects

and shall satisfy any applicable procurement laws unless

otherwise or to the extent provided for under this chapter.

(b)  Nonapplicability.--This chapter shall not apply to

agreements entered into exclusively under 62 Pa.C.S. Pt. I

(relating to Commonwealth Procurement Code) or any other

Commonwealth law relating to the expenditure or receipt of funds

by a public entity under contract for construction or services.

(c)  Prohibition.--Nothing in this chapter shall prohibit a

proprietary public entity from entering into a public-private

transportation partnership agreement in the capacity of a

proprietary public entity pursuant to powers granted exclusively

under other Commonwealth statutes.

(d)  Agreements.--If an agreement is entered into under this

chapter, the public-private transportation partnership agreement

shall be subject to the provisions of this chapter.

§ 9118.  Federal, Commonwealth, local and private assistance.

(a)  Federal assistance.--The following shall apply:

(1)  The department or a proprietary public entity may

accept from the United States, or any of its agencies, funds

that are available to the Commonwealth for carrying out this

chapter, whether the funds are made available by grant, loan,

loan guarantee or otherwise.

(2)  The department or a proprietary public entity is

authorized to assent to any Federal requirements, conditions

or terms of any Federal funding accepted by the department

under this section.

(3)  The department or a proprietary public entity may

enter into agreements or other arrangements with the United

States, or any of its agencies, as may be necessary for

carrying out the purposes of this chapter.

(b)  Acceptance of grants and donations.--The department or a

proprietary public entity may accept from any source any grant,

donation, gift or other form of conveyance of land, money or

other real, personal or mixed property or other item of value

for carrying out the purpose of this chapter.

(c)  Contributions.--Subject to acceptance and agreement

between the private entity and the department or a proprietary

public entity, any eligible transportation facility may be

financed, in whole or in part, by contribution of any funds or

property made by the department or a proprietary public entity,

a private entity, a proprietary public entity or an affected

jurisdiction.

(d)    Combination of funds.--The department or proprietary

public entity may combine Federal, State, local and private

funds to finance an eligible transportation facility under this

chapter.

§ 9119.  Public-Private Transportation Account.

(a)  Establishment.--

(1)  There is established within the Motor License Fund a

separate account to be known as the Public-Private

Transportation Account.

(2)  Money in the account shall be used only for the

purposes enumerated under subsection (c).

(b)  Deposits to account.--The following shall apply:

(1)  The department shall deposit in the account the

following:

(i)  All money received pursuant to the terms of a

public-private transportation partnership agreement.

(ii)  Repayment of any loans from the account made

under this chapter.

(iii)  Subject to the provisions of any public-

private transportation partnership agreement, monetary

damages and other amounts for failure by a development

entity to comply with the terms of the public-private

transportation partnership agreement.

(iv)  Subject to the provisions of any public-private

transportation partnership agreement, payments made from

any insurance proceeds or reserve funds or performance or

payment bonds in connection with a transportation

facility.

(v)  Earnings from the investment of the money in the

account.

(2)  The Secretary of the Budget shall establish any

restricted accounts within the account as the secretary deems

necessary for the proper administration of the account.

(c)  Appropriation.--The funds in the account are hereby

continuously appropriated to the department for the following

purposes:

(1)  Paying the amounts as the department may be required

to repay the Federal Highway Administration.

(2)  Paying all amounts designated by the department as

required for repayment or defeasance of outstanding bonds.

(3)  Paying costs of maintenance, operating and financing

of transportation facilities in this Commonwealth which are

available for use by the public, including the costs of

insurance or reserves against risks of contingencies.

(4)  Paying expenses incurred under or in connection with

any public-private transportation partnership agreement by

the department, including professional fees and expenses.

(5)  Paying the costs of the department relating to

performing and administering duties under this chapter.

(6)  Paying all expenses approved by the board for its

costs incurred to perform its duties, including paying

professional fees and expenses.

(7)  Paying costs of any purpose authorized under this

chapter.

(d)  Amounts received under a public-private transportation

partnership agreement.--The net proceeds received under a

public-private transportation partnership agreement shall be

available exclusively to provide funding for transportation

needs in this Commonwealth. The use of the proceeds or other

revenues from the transportation facility shall be in accord

with Federal or State law restricting or limiting the use of

revenue from the transportation facility based on its public

funding.

§ 9120.  Public-Private Transportation Partnership Board.

(a)  Establishment.--There is established a Public-Private

Transportation Partnership Board.

(b)  Composition.--The board shall be composed of the

following members:

(1)  The Secretary of Transportation, who shall be the

chairperson of the board as an ex officio member.

(2)  The Secretary of the Budget, or a designee as an ex

officio member.

(3)  Four members appointed by the General Assembly under

subsection (c).

(4)  One member appointed by the Governor under

subsection (d).

(c)  Legislative appointments.--

(1)  Appointments by members of the General Assembly

shall be made as follows:

(i)  One individual appointed by the President pro

tempore of the Senate.

(ii)  One individual appointed by the Minority Leader

of the Senate.

(iii)  One individual appointed by the Speaker of the

House of Representatives.

(iv)  One individual appointed by the Minority Leader

of the House of Representatives.

(2)  Legislative appointees shall serve at the pleasure

of the appointing authority.

(3)  Legislative appointees shall:

(i)  Be reputable citizens of this Commonwealth, of

mature judgment and broad experience.

(ii)  Not be a member of the General Assembly or

staff of a member of the General Assembly.

(iii)  Have professional background expertise or

substantial experience in one or more of the following

areas:

(A)  Transportation.

(B)  Finance.

(C)  Law.

(D)  Land use and public planning.

(d)  Gubernatorial appointment.--Appointments under

subsection (b)(4) shall be made by the Governor. The member

shall:

(1)  Be a reputable citizen of this Commonwealth, of

mature judgment and broad business experience.

(2)  Not hold any other position as an employee of the

Commonwealth.

(3)  Have professional background expertise or

substantial experience in one or more of the following areas: 

(i)  Transportation.

(ii)  Finance.

(iii)  Law.

(iv)  Land use and public planning.

(4)  Serve at the pleasure of the Governor.

(e)  Quorum.--Five members of the board shall constitute a

quorum.

(f)  Compensation.--The members of the board shall be

entitled to no compensation for their services as members of the

board but shall be entitled to reimbursement by the department

for all necessary and reasonable expenses incurred in connection

with the performance of their duties as members of the board.

(g)  Initial appointment and vacancy.--Appointing authorities

shall appoint initial board members within 30 days of the

effective date of this section. Whenever a vacancy occurs on the

board, the appointing authority shall appoint a successor member

within 30 days of the vacancy.

(h)  Financial interests.--No member of the board, during his

term of office shall directly or indirectly own, have any

significant financial interest in, be associated with or receive

any fee, commission, compensation or anything of value from any

public entity or private entity seeking to engage in a

transportation development agreement.

(i)  Applicability.--The following acts shall apply to the

board:

(1)  The Right-to-Know Law.

(2)  The State Adverse Interest Act.

(3)  The provisions of 65 Pa.C.S. Chs. 7 (relating to

open meetings) and 11 (relating to ethics standards and

financial disclosure).

§ 9121.  Duties and powers of board.

(a)  Duties.--The board shall do all of the following:

(1)  Meet as often as necessary but at least annually.

(2)  Adopt guidelines establishing the procedure by which

a public entity or private entity may submit a request for

evaluation of a solicited or unsolicited proposal to the

board, including guidelines necessary for initial project

approval and final project approval.

(3)  Consult with persons affected by proposed public-

private transportation partnership projects.

(4)  Evaluate and approve or deny requests by the

department and proprietary public entities to undertake

transportation partnership projects and make recommendations

to the department and proprietary public entities in the form

of a resolution.

(5)  Take all action by resolution. The affirmative vote

of the majority of the members shall be necessary for the

adoption of a resolution.

(6)  Submit an annual report to the General Assembly

detailing all transportation partnership projects evaluated

and resolutions adopted.

(b)  Powers.--The board may do all of the following:

(1)  In evaluating proposals, accord relative weight to

factors such as cost, financial commitment, innovative

financing, technical, scientific, technological or

socioeconomic merit and other factors as the board deems

appropriate to obtain the best value for the Commonwealth.

(2)  Conduct discussions with private entities to assure

understanding of and responsiveness to a request for

evaluation.

(3)  Seek technical assistance necessary to assist the

board in carrying out its duties and powers, at the expense

of the department.

(c)  Actions.--Actions by the board are a determination of

public policy and public interest and shall not be considered

adjudications under 2 Pa.C.S. Chs. 5 Subch. A (relating to

practice and procedure of Commonwealth agencies) and 7 Subch. A

(relating to judicial review of Commonwealth agency action) and

shall not be appealable to the department or a court of law.

§ 9122.  Role of department in operation of board.

(a)  Technical assistance.--The department shall supply all

necessary assistance to assist the board in carrying out its

duties and responsibilities, including retention of legal,

financial and technical consultants to assist with this role.

(b)  Analysis.--Upon initial board approval of a public-

private transportation project, the department shall develop a

detailed analysis of the proposal prior to the final approval by

the board.

(c)  Oversight.--Upon final approval by the board of a

transportation partnership project, the department shall retain

oversight and monitor the project, including periodic reports to

the board, as necessary.

Section 2.  Repeals are as follows:

(1)  The General Assembly declares that the repeal under

paragraph (2) is necessary to effectuate the addition of 74

Pa.C.S. Ch. 91.

(2)  Section 3 of the act of May 29, 1945 (P.L.1108,

No.402), referred to as the Limited Access Highway Law, is

repealed insofar as it is inconsistent with the addition of

74 Pa.C.S. Ch. 91.

Section 3.  This act shall take effect as follows:

(1)  The addition of 74 Pa.C.S. §§ 9104 and 9120 shall

take effect immediately.

(2)  This section shall take effect immediately.

(3)  The remainder of this act shall take effect in 60

days.