PRIOR PRINTER'S NO. 609

PRINTER'S NO.  1037

  

THE GENERAL ASSEMBLY OF PENNSYLVANIA

  

HOUSE BILL

 

No.

3

Session of

2011

  

  

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, EVANKOVICH, TRUITT, KILLION AND MURT, FEBRUARY 14, 2011

  

  

AS REPORTED FROM COMMITTEE ON TRANSPORTATION, HOUSE OF REPRESENTATIVES, AS AMENDED, MARCH 7, 2011   

  

  

  

AN ACT

  

1

Amending Title 74 (Transportation) of the Pennsylvania

2

Consolidated Statutes, providing for public-private

3

transportation partnerships; and making a related repeal.

4

The General Assembly of the Commonwealth of Pennsylvania

5

hereby enacts as follows:

6

Section 1.  Title 74 of the Pennsylvania Consolidated

7

Statutes is amended by adding a part to read:

8

PART V

9

TRANSPORTATION INFRASTRUCTURE

10

CHAPTER 91

11

PUBLIC-PRIVATE TRANSPORTATION PARTNERSHIP

12

Sec.

13

9101.  Scope of chapter.

 


1

9102.  Findings and declaration of policy.

2

9103.  Definitions.

3

9104.  Regulations.

4

9105.  Project delivery methods.

5

9106.  Approval.

6

9107.  Public-private transportation partnership agreement.

7

9108.  Police powers and violations of law.

8

9109.  Environmental and other authorizations.

9

9110.  Taxation of authorized development entity or entities.

10

9111.  Power of eminent domain.

11

9112.  Sovereign immunity.

12

9113.  Amounts payable by proprietary public entities and

13

specific performance.

14

9114.  Design-build development and Separations Act 

<--

15

applicability of other statutes.

<--

16

9115.  Additional procurement provisions.

17

9116.  Adverse interest.

18

9117.  Application of chapter.

19

9118.  Federal, Commonwealth, local and private assistance.

20

9119.  Public-Private Transportation Account.

21

9120.  Public-Private Transportation Partnership Board.

22

9121.  Duties and powers of board.

23

9122.  Role of department in operation of board.

24

§ 9101.  Scope of chapter.

25

This chapter relates to public-private transportation

26

partnerships.

27

§ 9102.  Findings and declaration of policy.

28

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

29

Assembly finds, determines and declares as follows:

30

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

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1

increase capacity, improve safety and enhance economic

2

efficiency of transportation facilities throughout this

3

Commonwealth.

4

(2)  The Commonwealth has limited resources to fund the

5

maintenance and expansion of its transportation facilities.

6

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

7

addressed, alternative funding mechanisms and strategies must

8

be developed to supplement existing public revenue sources.

9

(4)  The imposition of user fees establishes an

10

additional funding source for transportation infrastructure

11

needs that spreads the costs across those who most benefit

12

from the Commonwealth's system of roads, highways and

13

bridges.

14

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

15

operation, maintenance, construction and improvement of toll

16

roads is a proprietary function which may be delegated to a

17

private entity consistent with section 31 of Article III of

18

the Constitution of Pennsylvania.

19

(6)  Authorizing public entities to enter into

20

transportation development agreements with private entities

21

and other public entities for the development, operation and

22

financing of transportation facilities can result in greater

23

availability of transportation facilities to the public in a

24

timely, efficient and less costly fashion, thereby serving

25

the public safety and welfare.

26

(7)  Assuring that qualifying transportation projects are

27

developed, operated and financed in a cost-effective manner

28

is an important factor in promoting the health, safety and

29

welfare of the citizens of this Commonwealth.

30

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

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1

(1)  To encourage private entities to invest in this

2

Commonwealth by participating in the development, operation

3

and/or financing of transportation facilities.

4

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

5

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

6

chapter to provide public entities and private entities with

7

the flexibility in contracting with each other for and in

8

providing of the public services that are the subject of this

9

title.

10

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

11

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

12

chapter to make clear that public entities are authorized and

13

empowered to contract with private entities for and in

14

providing the public services which are the subject of this

15

title.

16

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

17

the charging of user fees consistent with the goals under

18

subsection (a) and paragraph (1).

19

§ 9103.  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

"Account."  The Public-Private Transportation Account.

24

"Board."  The Public-Private Transportation Partnership

25

Board.

26

"Department."  The Department of Transportation of the

27

Commonwealth.

28

"Development entity."  Any of the following:

29

(1)  A private entity.

30

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

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1

entity.

2

(3)  A partnership of entities proposing, bidding or

3

responding to a solicitation by the Department of

4

Transportation or a proprietary public entity.

5

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

6

that is capable of charging an account holder for the prescribed

7

toll by electronic transmission of information, including open

8

road tolling, video tolling or other similar structural or

9

technological enhancements pertaining to tolling.

10

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

11

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

12

this Commonwealth or a unit of government.

13

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

14

eligible transportation facility that is subject to a public-

15

private transportation partnership agreement.

16

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

17

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

18

term includes the Department of Transportation and the

19

Pennsylvania Turnpike Commission. The term does not include the

20

General Assembly and its members, officers or agencies or any

21

court or other office or agency of the Pennsylvania judicial

22

system.

23

"Public-private transportation partnership agreement."  A

24

binding agreement for a public-private transportation project

25

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

26

of a transportation facility by the Department of Transportation

27

or a proprietary public entity to a development entity for a

28

definite term during which the development entity will provide

29

transportation-related services in return for the right to

30

receive all or a portion of the revenue of the transportation

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1

facility, or other payment, such as the following

2

transportation-related services:

3

(1)  Operations and maintenance.

4

(2)  Revenue collection.

5

(3)  User fee collection or enforcement.

6

(4)  Design.

7

(5)  Construction.

8

(6)  Development and other activities with respect to

9

existing or new transportation facilities that enhance

10

traffic throughput, reduce congestion, improve safety or

11

otherwise manage or improve a transportation facility.

12

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

13

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

14

transport.

15

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

16

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

17

"Solicitation."  The process by which the Department of

18

Transportation or a proprietary public entity may elect to

19

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

20

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

21

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

22

"Transportation facility."  A proposed or existing road,

23

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

24

transportation facility, vehicle parking facility, port

25

facility, multimodal transportation facility, airport, station,

26

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

27

transportation of persons, animals or goods, together with any

28

buildings, structures, parking areas, appurtenances and other

29

property needed to operate the transportation facility. The term

30

includes any improvements or substantial enhancements or

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1

modifications to an existing transportation facility.

2

"Unit of government."  Any of the following:

3

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

4

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

5

entity, port or other public corporation organized and

6

existing under statutory law, voter-approved charter or

7

initiative.

8

(3)  An intergovernmental entity.

9

§ 9104.  Regulations.

10

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

11

of this chapter, the department shall is authorized to 

<--

12

promulgate regulations or publish guidelines that include any of 

<--

13

the following:

14

(1)  The process for review of request for solicitations

15

or responses to requests for solicitations issued by the

16

department or a proprietary public entity.

17

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

18

to competing responses to requests for solicitations.

19

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

20

for adequate review of and response to each state of review

21

of a solicitation.

22

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

23

the department and the board by public entities for approval

24

of a public-private transportation project under this

25

chapter.

26

(5)  Any other provisions which are required under this

27

chapter or which the department determines are appropriate

28

for implementation of this chapter.

29

(b)  Temporary regulations.--Notwithstanding any other

30

provision of law and in order to facilitate the prompt

- 7 -

 


1

implementation of this chapter, any regulation promulgated by

2

the department under this chapter during the two years following

3

the effective date of this section shall be deemed temporary

4

regulations which shall expire no later than three years

5

following the effective date of this section or upon

6

promulgation of final regulations. The temporary regulations

7

shall not be subject to any of the following:

8

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

9

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

10

Documents Law.

11

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

12

the Regulatory Review Act.

13

§ 9105.  Project delivery methods.

14

The department shall provide for the development or operation

15

of eligible facilities using a variety of project delivery

16

methods and forms of agreement. The methods may include:

17

(1)  Predevelopment agreements leading to other

18

implementing agreements.

19

(2)  A design-build agreement.

20

(3)  A design-build-maintain agreement.

21

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

22

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

23

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

24

(7)  A concession providing for the private entity to

25

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

26

transportation facility.

27

(8)  Any other project delivery method or agreement or

28

combination of methods or agreements that the department

29

determines will serve the public interest.

30

§ 9106.  Approval.

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1

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

2

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

3

an agreement with a development entity for the purpose of

4

forming a public-private transportation partnership in

5

accordance with this chapter.

6

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

7

entity may procure services under this chapter using any or all

8

of the following:

9

(1)  Request for project proposals in which is described

10

a class of transportation facilities or a geographic area in

11

which development entities are invited to submit proposals to

12

develop transportation facilities.

13

(2)  Solicitations using requests for qualifications,

14

short-listing of qualified proposers, requests for proposals,

15

negotiations, best and final offers or other procurement

16

procedures.

17

(3)  Procurements seeking development and finance plans

18

most suitable for the project.

19

(4)  Best value selection procurements based on price,

20

financial proposals, or both, or other factors determined to

21

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

22

Commonwealth or the proprietary public entity.

23

(5)  Other procedures that the department determines may

24

further the implementation of this chapter.

25

(6)  Unsolicited proposals as recommended by the board if

26

the board, in consultation with the department, determines

27

there is sufficient merit to pursue the proposal, a

28

reasonable opportunity for other entities to submit competing

29

proposals for consideration and a possible contract award.

30

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

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1

must give adequate public notice of any request for

2

qualifications, request for proposal or other solicitation in a

3

reasonable amount of time prior to any deadline date for

4

submission. The solicitation shall generally set forth the

5

factors that will be evaluated and the manner in which responses

6

will be evaluated.

7

(d)  Costs.--

8

(1)  The department and a proprietary public entity and

9

their respective advisers shall not be responsible for any

10

costs or damages incurred by a private entity in connection

11

with any requests for qualifications, requests for proposals

12

or other solicitations.

13

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

14

in their discretion, elect to pay a stipend to unsuccessful

15

offerors who have submitted responsive proposals, bids and

16

other materials in response to a request for proposals or

17

other solicitation. Stipends may be made available solely to

18

defray the costs of proposal or response preparation. The

19

availability of a stipend and the conditions necessary to

20

qualify for payment shall be included in the request for

21

proposals or other solicitation.

22

(3)  The department or a proprietary public entity may

23

charge and retain an administrative fee for the evaluation of

24

a public-private transportation partnership proposal as

25

recommended by the board.

26

(e)  Modification and termination rights.--

27

(1)  The department or a proprietary public entity may

28

modify a solicitation request if it determines the

29

modification to be in the best interest of the Commonwealth

30

or proprietary public entity.

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1

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

2

prior to the time a public-private transportation partnership

3

agreement is executed, if the department or the proprietary

4

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

5

action is in the best interest of the Commonwealth or the

6

proprietary public entity. The reasons for cancellation shall

7

be made a part of the file.

8

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

9

solicitation request may be rejected at any time prior to the

10

time a public-private transportation partnership agreement is

11

executed, if the department or the proprietary public entity

12

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

13

the best interest of the Commonwealth or the proprietary

14

public entity. The reasons for rejection shall be made part

15

of the file.

16

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

17

for solicitation shall be final and unreviewable.

18

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

19

way shall obligate the department or a proprietary public

20

entity to enter into a public-private transportation

21

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

22

(f)  Selection criteria, evaluation and award by the

23

department or a proprietary public entity.--

24

(1)  In evaluating proposals, the department or a

25

proprietary public entity shall obtain the best value for the

26

Commonwealth or the proprietary public entity and may accord

27

relative weight to factors such as cost, financial

28

commitment, innovative financing, technical, scientific,

29

technological or socioeconomic merit, financial strength and

30

viability and other factors as deemed appropriate.

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1

(2)  The department or a proprietary public entity may

2

conduct discussions with development entities to assure

3

understanding of and responsiveness to the requirements of a

4

request for qualifications.

5

(3)  The department or a proprietary public entity shall

6

conduct a public and competitive process to award a public-

7

private transportation partnership agreement.

8

(4)  The department or a proprietary public entity shall

9

accept for contract negotiation the responsive and

10

responsible development entity whose proposal is determined

11

in writing to be the most advantageous to the Commonwealth or

12

the proprietary public entity, taking into consideration

13

price and all evaluation factors.

14

(5)  The department or a proprietary public entity may

15

require that any bid or proposal submitted to enter into a

16

public-private transportation partnership agreement be

17

accompanied by security in the form of cash, letters of

18

credit or other financial security acceptable to the

19

department or the proprietary public entity.

20

(6)  The department or a proprietary public entity may

21

retain financial, technical, legal and other consultants and

22

experts to assist in the evaluation, negotiation and

23

development of eligible facilities under this chapter.

24

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

25

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

26

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

27

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

28

technologies, techniques, methods, processes and information

29

contained in the response. Notice of nontransferability by law

30

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

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1

qualifications.

2

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

3

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

4

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

5

party to a public-private transportation partnership

6

agreement, the identity of the development entity selected,

7

the contents of the response of the development entity to the

8

request for qualifications, the final bid or proposal

9

submitted by the development entity and the form of the

10

public-private transportation agreement shall be made public.

11

Any financial information of a development entity that was

12

requested in a request for qualifications or a solicitation

13

to demonstrate the economic capability of a development

14

entity to fully perform the requirements of the public-

15

private transportation partnership agreement and which is

16

contained in a response to a request for qualifications shall

17

not be subject to public inspection.

18

(2)  The department or a proprietary public and a private

<--

19

development entity may agree, in their discretion, to make

20

public any information described under paragraph (1) that

21

would not otherwise be subject to public inspection.

22

(2) (3)  If the department or a proprietary public entity

<--

23

terminates a public-private transportation partnership

24

agreement for default, rejects a development entity or a

25

person on the grounds that the development entity is not

26

responsible or suspends or debars a development entity or a

27

person, the development entity or person shall, upon written

28

request, be provided with a copy of the information contained

29

in the file of the development entity or person maintained by

30

the department, the Office of the Budget and the Department

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1

of General Services or a proprietary public entity under a

2

contractor responsibility program.

3

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

<--

4

used or retained by the department or a proprietary public

5

entity or their employees, consultants or agents in

6

connection with the evaluation of requests for qualifications

7

shall not constitute a public record subject to public

8

inspection under the Right-to-Know Law if, in the reasonable

9

judgment of the department or the proprietary public entity,

10

the inspection would cause substantial competitive harm to

11

the entity or person from whom the information was received.

12

(i)  Diversity.--

13

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

14

that the department and proprietary public entities promote

15

and ensure diversity in all aspects of development and

16

operation of a public-private transportation project

17

authorized under this chapter. The department and proprietary

18

public entities shall work to enhance the representation of

19

diverse groups in the development and operation by private

20

entities of any public-private transportation project through

21

the participation of business enterprises utilized by

22

development entities and through the provision of goods and

23

services utilized by development entities in the development

24

and operation of any public-private transportation project

25

authorized under this chapter.

26

(2)  The department is authorized to investigate and

27

conduct periodic studies to ascertain whether effective and

28

meaningful action has been taken or will be taken to enhance

29

the representation of diverse groups in the development and

30

operation by development entities of any public-private

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1

transportation project in this Commonwealth through the

2

participation of business enterprises utilized by development

3

entities in the development and operating of any public-

4

private transportation project under this chapter and through

5

the provision of goods and services utilized by development

6

entities in the development and operation of any public-

7

private transportation project and through employment

8

opportunities.

9

§ 9107.  Public-private transportation partnership agreement.

10

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

11

partnership agreement shall include the following provisions:

12

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

13

leasing, acquisition or interest in, financing, installation,

14

construction, reconstruction, replacement, expansion,

15

operation, maintenance, improvement, equipping, modification,

16

expansion, enlargement, management, running, control and

17

operation of the transportation facility.

18

(2)  The term of the public-private transportation

19

partnership agreement.

20

(3)  The type of property interest or other relationship

21

the development entity will have in or with respect to the

22

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

23

property interests that may be required.

24

(4)  Authorization for the department and the proprietary

25

public entity, or their authorized representatives, to

26

inspect all assets and properties of the transportation

27

facility and all books and records of the development entity

28

relating to the eligible transportation facility to review

29

the development entity's performance under the public-private

30

transportation partnership agreement.

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1

(5)  Grounds for termination of the public-private

2

transportation partnership agreement by the parties.

3

(6)  Procedures for amendment of the public-private

4

transportation partnership agreement.

5

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

6

breach, default or delay.

7

(8)  Requirements for a private development entity to

8

provide performance and payment bonds, parent company

9

guarantees, letters of credit or other acceptable forms of

10

security in an amount acceptable to the proprietary public

11

entity.

12

(9)  A requirement that the transportation facility

13

acquired or constructed is public property that is leased to

14

the development entity and belongs to the proprietary public

15

entity.

16

(10)  Standards for construction, maintenance and

17

operation of the transportation facility if the activities

18

are to be performed by the development entity.

19

(11)  Standards for capital improvement or modification

20

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

21

development entity.

22

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

23

be made by the proprietary public entity to the development

24

entity, including availability payments, performance-based

25

payment and payments of money and revenue-sharing with the

26

development entity.

27

(13)  Standards relating to how the parties will allocate

28

and share management of the risks of the project.

29

(14)  Standards relating to how the parties will allocate

30

costs of development of the project, including any cost

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1

overruns.

2

(15)  Standards relating to damages to be assessed for

3

nonperformance, specifying remedies available to the parties

4

and dispute resolution procedures.

5

(16)  Standards relating to performance criteria and

6

incentives.

7

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

8

private transportation partnership agreement, the

9

transportation facility must be in a state of proper

10

maintenance and repair and shall be returned to the

11

proprietary public entity in satisfactory condition at no

12

further cost to the proprietary public entity.

13

(18)  Provisions for law enforcement of the public

14

transportation facility.

15

(19)  An obligation of the private entity to offer

16

employment to any employee of the department or proprietary

17

public entity who would lose employment due to the execution

18

of the public-private partnership agreement and who is in

19

good standing at the time of execution of the partnership

20

agreement, including salary, retirement, health and welfare,

21

and benefits which are substantially identical to the

22

benefits received by the employees immediately prior to

23

execution of the partnership agreement.

24

(20)  Other terms and provisions as required under this

25

chapter.

26

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

27

the private entity and the department or the proprietary

28

public entity.

29

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

30

enter into a public-private transportation partnership agreement

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1

with any development entity that includes the provisions under

2

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

3

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

4

the department from entering into a partnership agreement with

5

another Commonwealth agency for purposes of forming a

6

transportation partnership in accordance with this chapter.

7

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

8

prohibit any propriety public entity from entering into a

9

public-private transportation partnership agreement with one or

10

more public entities for purposes of forming a transportation

11

partnership in accordance with this chapter.

12

(e)  Environmental costs.--

13

(1)  The department or any other proprietary public

14

entity may provide in a public-private transportation

15

partnership agreement that it will pay or reimburse, on terms

16

that it deems appropriate, the development entity for actual

17

costs associated with necessary remediation, including

18

investigation activities, for existing environmental

19

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

20

property associated with a transportation facility as of the

21

date the development entity assumes responsibility for the

22

transportation facility. If provision is made under this

23

paragraph, the public-private transportation partnership

24

agreement shall require that the proprietary public entity be

25

given:

26

(i)  Prompt notice of any claim against the third

27

party pertaining to the contaminants.

28

(ii)  The right to elect to undertake the necessary

29

remediation.

30

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

- 18 -

 


1

response to any claim.

2

(iv)  The right of prior approval before the

3

development entity may settle any claim.

4

(2)  No payment by the department or any other

5

proprietary public entity under this section may be for

6

anything other than, or extend beyond, actual losses,

7

liabilities, damages, penalties, charges, costs and expenses

8

incurred by a private entity to remediate the environmental

9

contamination on, under or emanating from the real property

10

associated with the transportation facility as of the date

11

the development entity assumes responsibility for the

12

transportation facility.

13

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

14

will be collected for use of the transportation facility and the

15

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

16

private transportation partnership agreement. If a user fee is

17

proposed as part of the public-private transportation

18

partnership project, the department or a proprietary public

19

entity shall include provisions in the agreement that authorize

20

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

21

including provisions that:

22

(1)  Specify technology to be used in the transportation

23

facility.

24

(2)  Establish circumstances under which the department

25

or the proprietary public entity may receive a share of

26

revenues from the charges.

27

(3)  Govern the enforcement of electronic tolls,

28

including provisions for use of available technology.

29

(4)  Establish payment collection standards, including

30

provisions for enforcement of nonpayment and penalties.

- 19 -

 


1

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

2

the prescribed toll or user fee at any location on a

3

transportation facility where tolls or user fees are

4

collected by means of an electronic or other automated or

5

remote form of collection, the collection provisions of

6

section 8117 (relating to electronic toll collection) shall

7

apply except that the private entity shall possess all of the

8

rights, roles, limitations and responsibilities of the

9

Pennsylvania Turnpike Commission.

10

(g)  Amounts received under a public-private transportation

11

partnership agreement.--The net proceeds received by the

12

department or the proprietary public entity under a public-

13

private transportation partnership agreement shall be available

14

exclusively to provide funding for transportation needs in this

15

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

16

transportation facility shall comply with Federal or State law

17

restricting or limiting the use of revenue from the

18

transportation facility based on its public funding.

19

§ 9108.  Police powers and violations of law.

20

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

21

private transportation facility is a highway, bridge, tunnel

22

overpass or similar transportation facility for motor vehicles,

23

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

24

applicable, any local jurisdiction shall be the same as those

25

applying to conduct on similar transportation facilities in this

26

Commonwealth or the local jurisdiction. Punishment for offenses

27

shall be prescribed by law for conduct occurring on similar

28

transportation facilities in this Commonwealth or the local

29

jurisdiction.

30

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

- 20 -

 


1

arrests for violations of law in this Commonwealth shall have

2

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

3

public-private transportation project as they have in their

4

respective areas of jurisdiction. The grant of authority under

5

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

6

garages and other improvements of a private entity to any

7

greater degree than the police power extends to any other

8

private offices, buildings, garages and other improvements.

9

§ 9109.  Environmental and other authorizations.

10

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

11

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

12

soliciting nor approving a request for qualification, nor

13

executing a public-private transportation partnership agreement

14

under this chapter shall constitute the submission of a

15

preliminary plan or design to the department under section

16

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

17

The Administrative Code of 1929.

18

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

19

transportation partnership agreement may require that prior to

20

commencing any construction in connection with the development,

21

operation or financing of any eligible transportation facility

22

if the agreement requires environmental authorizations to be

23

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

24

(1)  Secure all necessary environmental permits and

25

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

26

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

27

Environmental Remediation Standards Act, obtain the approval

28

of the Department of Environmental Protection.

29

(2)  Complete environmental remediation of the site on

30

which the eligible transportation facility is or is to be

- 21 -

 


1

located, including acts required under any agreement entered

2

into with the Department of Environmental Protection for

3

remediation of the site under the Land Recycling and

4

Environmental Remediation Standards Act.

5

§ 9110.  Taxation of authorized development entity or entities.

6

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

7

received by a development entity or entities pursuant to a

8

public-private transportation partnership agreement are subject

9

to a tax imposed by a political subdivision prior to the

10

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

11

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

12

rate of the tax.

13

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

14

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

15

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

16

development entity or entities pursuant to a public-private

17

transportation partnership agreement.

18

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

19

partnership agreement, lease, concession, franchise or other

20

contract involving real property of a public-private

21

transportation project shall be subject to a Commonwealth or

22

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

23

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

24

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

25

Code of 1971, or a successor statute.

26

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

27

private transportation project shall be considered public

28

property and shall be exempt from ad valorem property taxes and

29

special assessments levied against property by the Commonwealth

30

or any political subdivision.

- 22 -

 


1

§ 9111.  Power of eminent domain.

2

The exercise of the power of eminent domain by any condemnor

3

to acquire property for transportation facility purposes under a

4

public-private transportation partnership agreement shall be

5

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

6

purpose or for private enterprise.

7

§ 9112.  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

11

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

12

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

13

(relating to sovereign immunity reaffirmed; specific waiver) nor

<--

14

shall any provision of this chapter constitute an extension of

15

sovereign immunity where sovereign immunity has been or may be

16

waived under 42 Pa.C.S. (relating to judiciary and judicial

17

procedure) or otherwise.

18

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

19

Article I of the Constitution of Pennsylvania, waives sovereign

20

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

21

department, commission, authority or agency of the Commonwealth

22

or any authority or political subdivision brought in accordance

23

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

24

partnership agreement) and 9113 (relating to amounts payable by

25

proprietary public entities and specific performance), but only

26

to the extent set forth under this chapter.

27

§ 9113.  Amounts payable by proprietary public entities and

28

specific performance.

29

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

30

proprietary public entity is authorized to agree to make

- 23 -

 


1

payments to a development entity pursuant to a public-private

2

transportation partnership agreement under any of the following:

3

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

4

its representations, covenants, warranties or other

5

obligations under the public-private transportation

6

partnership agreement.

7

(2)  If the proprietary public entity takes adverse

8

actions against the development entity in violation of the

9

terms of the public-private transportation partnership

10

agreement.

11

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

12

that have a material adverse effect on the ability of the

13

development entity to perform its obligations under the

14

public-private transportation partnership agreement or to

15

obtain the benefits of the public-private transportation

16

partnership agreement.

17

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

18

public entity pursuant to a public-private transportation

19

partnership agreement may be for:

20

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

21

expenses of the development entity.

22

(2)  Amounts necessary to restore the development entity

23

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

24

had the event in question not occurred.

25

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

26

the interest, benefits and rights of the development entity

27

and the rights and obligations of the development entity

28

created and made under the public-private transportation

29

partnership agreement.

30

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

- 24 -

 


1

authorized to agree that specific performance shall be available

2

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

3

proprietary public entity of its representations, covenants,

4

warranties or other obligations under the public-private

5

transportation partnership agreement to the extent set forth in

6

the public-private transportation partnership agreement.

7

§ 9114.  Design-build development and Separations Act 

<--

8

applicability of other statutes.

<--

9

Notwithstanding any other provision of law:

10

(1)  Any public-private transportation partnership

11

project undertaken under this chapter may provide design-

12

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

13

and operate-maintain procurements and other innovative or

14

nontraditional competitive procurement methods for

15

transportation-related infrastructure development.

16

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

17

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

18

referred to as the Separations Act, in connection with the

19

development or operation of a public-private transportation

20

project authorized under this chapter.

21

(3)  Any public-private transportation project

<--

22

undertaken, in whole or in part, by any entity pursuant to

23

this chapter is deemed a project of public work as that term

24

is defined in section 2(5) of the act of August 15, 1961

25

(P.L.987, No.442), known as the Pennsylvania Prevailing Wage

26

Act, and any entity undertaking a public-private

27

transportation project shall be subject to the requirements

28

of the Pennsylvania Prevailing Wage Act and is deemed a

29

public body as that term is defined in section 2(4) of the

30

Prevailing Wage Act.

- 25 -

 


1

§ 9115.  Additional procurement provisions.

2

To the extent applicable to the proprietary public entity,

3

the following provisions shall apply to a contract entered into

4

between the department or a proprietary public entity and an

5

authorized development entity related to the development,

6

operation or financing of a public-private transportation

7

project under this chapter:

8

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

9

as the Pennsylvania Prevailing Wage Act.

10

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

11

entitled, "An act equalizing trade practices in public works

12

procurement; authorizing the purchase by the Commonwealth,

13

its political subdivisions, and all public agencies, of

14

aluminum and steel products produced in a foreign country,

15

provided the foreign country does not prohibit or

16

discriminate against the importation to, sale or use in the

17

foreign country of supplies, material or equipment

18

manufactured in this Commonwealth; establishing procedures

19

for determining whether foreign countries discriminate

20

against supplies, materials or equipment manufactured in this

21

Commonwealth; and imposing penalties and providing for relief

22

for violation of this act."

23

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

24

Steel Products Procurement Act.

25

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

26

limitations).

27

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

28

suspension).

29

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

30

system).

- 26 -

 


1

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

2

plant).

3

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

4

records).

5

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

6

procurement records).

7

§ 9116.  Adverse interest.

8

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

9

apply:

10

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

11

entity which submits a response to a request for solicitation

12

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

13

unsolicited proposal and which is also a State adviser or a

14

State consultant for the department or the Pennsylvania

15

Turnpike Commission shall not be deemed to be in violation of

16

the State Adverse Interest Act while engaging in any of the

17

following activities:

18

(i)  Preparing or submitting a response to a request

19

for qualifications.

20

(ii)  Participating in any activity with the

21

department related to a request for solicitation.

22

(iii)  Negotiating and entering into any contract

23

lease or public-private transportation partnership

24

agreement which results from a request for solicitation.

25

(iv)  Engaging in any other action taken in

26

furtherance of the purposes of this chapter.

27

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

28

request for solicitation or acts as a consultant or an

29

adviser to a private entity which submits a response to a

30

request for solicitation to the department shall be

- 27 -

 


1

prohibited from consulting or providing advice to the

2

department on the review or approval of the response to the

3

request for solicitations as submitted.

4

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

<--

5

request for solicitation or acts as a consultant or an

6

advisor to a private entity which submits a response to a

7

request for solicitation to the board shall be prohibited

8

from consulting or providing advice to the department on the

9

review or approval of the response to the request for

10

solicitations so submitted.

11

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

12

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

13

subsection unless the context clearly indicates otherwise:

14

"State adviser."  As defined in the State Adverse

15

Interest Act.

16

"State consultant."  As defined in the State Adverse

17

Interest Act.

18

§ 9117.  Application of chapter.

19

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

20

private transportation partnership agreements between

21

proprietary public entities, other public entities and

22

development entities for public-private transportation projects

23

and shall satisfy any applicable procurement laws unless

24

otherwise or to the extent provided for under this chapter.

25

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

26

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

27

(relating to Commonwealth Procurement Code) or any other

28

Commonwealth law relating to the expenditure or receipt of funds

29

by a public entity under contract for construction or services.

30

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

- 28 -

 


1

proprietary public entity from entering into a public-private

2

transportation partnership agreement in the capacity of a

3

proprietary public entity pursuant to powers granted exclusively

4

under other Commonwealth statutes.

5

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

6

chapter, the public-private transportation partnership agreement

7

shall be subject to the provisions of this chapter.

8

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

9

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

10

(1)  The department or a proprietary public entity may

11

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

12

that are available to the Commonwealth for carrying out this

13

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

14

loan guarantee or otherwise.

15

(2)  The department or a proprietary public entity is

16

authorized to assent to any Federal requirements, conditions

17

or terms of any Federal funding accepted by the department

18

under this section.

19

(3)  The department or a proprietary public entity may

20

enter into agreements or other arrangements with the United

21

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

22

carrying out the purposes of this chapter.

23

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

24

proprietary public entity may accept from any source any grant,

25

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

26

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

27

for carrying out the purpose of this chapter.

28

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

29

between the private entity and the department or a proprietary

30

public entity, any eligible transportation facility may be

- 29 -

 


1

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

2

property made by the department or a proprietary public entity,

3

a private entity, a proprietary public entity or an affected

4

jurisdiction.

5

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

6

public entity may combine Federal, State, local and private

7

funds to finance an eligible transportation facility under this

8

chapter.

9

§ 9119.  Public-Private Transportation Account.

10

(a)  Establishment.--

11

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

12

separate account to be known as the Public-Private

13

Transportation Account.

14

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

15

purposes enumerated under subsection (c).

16

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

17

(1)  The department shall deposit in the account the

18

following:

19

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

20

public-private transportation partnership agreement.

21

(ii)  Repayment of any loans from the account made

22

under this chapter.

23

(iii)  Subject to the provisions of any public-

24

private transportation partnership agreement, monetary

25

damages and other amounts for failure by a development

26

entity to comply with the terms of the public-private

27

transportation partnership agreement.

28

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

29

transportation partnership agreement, payments made from

30

any insurance proceeds or reserve funds or performance or

- 30 -

 


1

payment bonds in connection with a transportation

2

facility.

3

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

4

account.

5

(2)  The Secretary of the Budget shall establish any

6

restricted accounts within the account as the secretary deems

7

necessary for the proper administration of the account.

8

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

9

continuously appropriated to the department for the following

10

purposes:

11

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

12

to repay the Federal Highway Administration.

13

(2)  Paying all amounts designated by the department as

14

required for repayment or defeasance of outstanding bonds.

15

(3)  Paying costs of maintenance, operating and financing

16

of transportation facilities in this Commonwealth which are

17

available for use by the public, including the costs of

18

insurance or reserves against risks of contingencies.

19

(4)  Paying expenses incurred under or in connection with

20

any public-private transportation partnership agreement by

21

the department, including professional fees and expenses.

22

(5)  Paying the costs of the department relating to

23

performing and administering duties under this chapter.

24

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

25

costs incurred to perform its duties, including paying

26

professional fees and expenses.

27

(7)  Paying costs of any purpose authorized under this

28

chapter.

29

(d)  Amounts received under a public-private transportation

30

partnership agreement.--The net proceeds received under a

- 31 -

 


1

public-private transportation partnership agreement shall be

2

available exclusively to provide funding for transportation

3

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

4

revenues from the transportation facility shall be in accord

5

with Federal or State law restricting or limiting the use of

6

revenue from the transportation facility based on its public

7

funding.

8

§ 9120.  Public-Private Transportation Partnership Board.

9

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

10

Transportation Partnership Board.

11

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

12

following members:

13

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

14

chairperson of the board as an ex officio member.

15

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

16

officio member.

17

(3)  Four members appointed by the General Assembly under

18

subsection (c).

19

(4)  One member appointed by the Governor under

20

subsection (d).

21

(c)  Legislative appointments.--

22

(1)  Appointments by members of the General Assembly

23

shall be made as follows:

24

(i)  One individual appointed by the President pro

25

tempore of the Senate.

26

(ii)  One individual appointed by the Minority Leader

27

of the Senate.

28

(iii)  One individual appointed by the Speaker of the

29

House of Representatives.

30

(iv)  One individual appointed by the Minority Leader

- 32 -

 


1

of the House of Representatives.

2

(2)  Legislative appointees shall serve at the pleasure

3

of the appointing authority.

4

(3)  Legislative appointees shall:

5

(i)  Be reputable citizens of this Commonwealth, of

6

mature judgment and broad experience.

7

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

8

staff of a member of the General Assembly.

9

(iii)  Have professional background expertise or

10

substantial experience in one or more of the following

11

areas:

12

(A)  Transportation.

13

(B)  Finance.

14

(C)  Law.

15

(D)  Land use and public planning.

16

(d)  Gubernatorial appointment.--Appointments under

17

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

18

shall:

19

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

20

mature judgment and broad business experience.

21

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

22

Commonwealth.

23

(3)  Have professional background expertise or

24

substantial experience in one or more of the following areas: 

25

(i)  Transportation.

26

(ii)  Finance.

27

(iii)  Law.

28

(iv)  Land use and public planning.

29

(4)  Serve at the pleasure of the Governor.

30

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

- 33 -

 


1

quorum.

2

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

3

entitled to no compensation for their services as members of the

4

board but shall be entitled to reimbursement by the department

5

for all necessary and reasonable expenses incurred in connection

6

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

7

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

8

shall appoint initial board members within 30 days of the

9

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

10

board, the appointing authority shall appoint a successor member

11

within 30 days of the vacancy.

12

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

13

term of office shall directly or indirectly own, have any

14

significant financial interest in, be associated with or receive

15

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

16

public entity or private entity seeking to engage in a

17

transportation development agreement.

18

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

19

board:

20

(1)  The Right-to-Know Law.

21

(2)  The State Adverse Interest Act.

22

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

23

open meetings) and 11 (relating to ethics standards and

24

financial disclosure).

25

§ 9121.  Duties and powers of board.

26

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

27

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

28

(2)  Adopt guidelines establishing the procedure by which

29

a public entity or private entity may submit a request for

30

evaluation of a solicited or unsolicited proposal to the

- 34 -

 


1

board, including guidelines necessary for initial project

2

approval and final project approval.

3

(3)  Consult with persons affected by proposed public-

4

private transportation partnership projects.

5

(4)  Evaluate and approve or deny requests by the

6

department and proprietary public entities to undertake

7

transportation partnership projects and make recommendations

8

to the department and proprietary public entities in the form

9

of a resolution.

10

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

11

of the majority of the members shall be necessary for the

12

adoption of a resolution.

13

(6)  Submit an annual report to the General Assembly

14

detailing all transportation partnership projects evaluated

15

and resolutions adopted.

16

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

17

(1)  In evaluating proposals, accord relative weight to

18

factors such as cost, financial commitment, innovative

19

financing, technical, scientific, technological or

20

socioeconomic merit and other factors as the board deems

21

appropriate to obtain the best value for the Commonwealth.

22

(2)  Conduct discussions with private entities to assure

23

understanding of and responsiveness to a request for

24

evaluation.

25

(3)  Seek technical assistance necessary to assist the

26

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

27

of the department.

28

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

29

public policy and public interest and shall not be considered

30

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

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1

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

2

(relating to judicial review of Commonwealth agency action) and

3

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

4

§ 9122.  Role of department in operation of board.

5

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

6

necessary assistance to assist the board in carrying out its

7

duties and responsibilities, including retention of legal,

8

financial and technical consultants to assist with this role.

9

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

10

private transportation project, the department shall develop a

11

detailed analysis of the proposal prior to the final approval by

12

the board.

13

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

14

transportation partnership project, the department shall retain

15

oversight and monitor the project, including periodic reports to

16

the board, as necessary.

17

Section 2.  Repeals are as follows:

18

(1)  The General Assembly declares that the repeal under

19

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

20

Pa.C.S. Ch. 91.

21

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

22

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

23

repealed insofar as it is inconsistent with the addition of

24

74 Pa.C.S. Ch. 91.

25

Section 3.  This act shall take effect as follows:

26

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

27

take effect immediately.

28

(2)  This section shall take effect immediately.

29

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

30

days.

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