SENATE AMENDED

 

PRIOR PRINTER'S NOS. 609, 1037, 2754, 3114, 3590

PRINTER'S NO.  3769

  

THE GENERAL ASSEMBLY OF PENNSYLVANIA

  

HOUSE BILL

 

No.

3

Session of

2011

  

  

INTRODUCED BY GEIST, McGEEHAN, AUMENT, BAKER, BENNINGHOFF, BOYD, CALTAGIRONE, CAUSER, CHRISTIANA, CLYMER, P. COSTA, 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, TURZAI, VULAKOVICH, WATSON, EVANKOVICH, TRUITT, KILLION, HARKINS AND BARBIN, FEBRUARY 14, 2011

  

  

SENATOR CORMAN, APPROPRIATIONS, IN SENATE, RE-REPORTED AS AMENDED, JUNE 18, 2012   

  

  

  

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

Amending Title 74 (Transportation) of the Pennsylvania

<--

5

Consolidated Statutes, providing for public-private

6

transportation partnerships; and making a related repeal.

7

The General Assembly of the Commonwealth of Pennsylvania

8

hereby enacts as follows:

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Section 1.  Title 74 of the Pennsylvania Consolidated

<--

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Statutes is amended by adding a part to read:

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PART V

12

TRANSPORTATION INFRASTRUCTURE

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Chapter

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91.  Public-Private Transportation Partnership

 


1

CHAPTER 91

2

PUBLIC-PRIVATE TRANSPORTATION PARTNERSHIP

3

Sec.

4

9101.  Scope of chapter.

5

9102.  Findings and declaration of policy.

6

9103.  Definitions.

7

9104.  Public-Private Transportation Partnership Board.

8

9105.  Duties of board.

9

9106.  Operation of board.

10

9107.  Solicitations for transportation projects.

11

9108.  Transportation projects.

12

9109.  Requests.

13

9110.  Selection of development entities.

14

9111.  Public-private transportation partnership agreement.

15

9112.  Records of requests.

16

9113.  Use of intellectual property.

17

9114.  Police powers and violations of law.

18

9115.  Environmental and other authorizations.

19

9116.  Taxation of development entity.

20

9117.  Power of eminent domain.

21

9118.  Sovereign immunity.

22

9119.  Specific performance.

23

9120.  Applicability of other laws.

24

9121.  Adverse interest.

25

9122.  Federal, State, local and private assistance.

26

9123.  Public-Private Transportation Account.

27

9124.  Pennsylvania Turnpike Commission.

28

9125.  Regulations.

29

§ 9101.  Scope of chapter.

30

This chapter relates to public-private transportation

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1

partnerships.

2

§ 9102.  Findings and declaration of policy.

3

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

4

Assembly finds, determines and declares as follows:

5

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

6

increase capacity, improve safety and enhance economic

7

efficiency of transportation facilities throughout this

8

Commonwealth.

9

(2)  The public entities have limited resources to fund

10

the maintenance and expansion of their respective

11

transportation facilities.

12

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

13

addressed, alternative funding mechanisms and strategies must

14

be developed to supplement existing public revenue sources.

15

(4)  The imposition of user fees establishes an

16

additional funding source for transportation infrastructure

17

needs that spreads the costs across those who most benefit

18

from the Commonwealth's system of roads, highways and

19

bridges.

20

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

21

operation, maintenance, construction and improvement of toll

22

roads is a proprietary function which may be delegated to a

23

private entity consistent with section 31 of Article III of

24

the Constitution of Pennsylvania.

25

(6)  Authorizing public entities to enter into

26

transportation partnership agreements with private entities

27

and other public entities for the development, operation and

28

financing of transportation facilities can result in greater

29

availability of transportation facilities to the public in a

30

timely, efficient and less costly fashion, thereby serving

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1

the public safety and welfare.

2

(7)  Assuring that public-private transportation projects

3

are developed, operated and financed in a cost-effective

4

manner is an important factor in promoting the health, safety

5

and welfare of the citizens of this Commonwealth.

6

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

7

(1)  To encourage private entities to invest in this

8

Commonwealth by participating in the development, operation

9

or financing of transportation facilities.

10

(2)  To provide public entities and private entities with

11

the authority and flexibility in contracting for the

12

development, operation and financing of transportation

13

facilities.

14

(3)  To authorize public entities to contract with

15

private and other public entities to provide transportation

16

facilities and related services.

17

§ 9103.  Definitions.

18

The following words and phrases when used in this chapter

19

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

20

context clearly indicates otherwise:

21

"Account."  The Public-Private Transportation Account.

22

"Board."  The Public-Private Transportation Partnership

23

Board.

24

"Department."  The Department of Transportation of the

25

Commonwealth.

26

"Development entity."  An entity which is a party to a

27

public-private transportation partnership agreement and which is

28

any of the following:

29

(1)  A private entity.

30

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

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1

providing or improving its own transportation facilities.

2

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

3

which is capable of charging an account holder for the

4

prescribed toll by electronic transmission of information. The

5

term includes open road tolls, video tolls or other similar

6

structural or technological enhancements pertaining to tolls.

7

"Offeror."  A person that submits a proposal or a response in

8

answer to a request for proposals or transportation projects.

9

"Private entity."  A person, entity, group or organization

10

that is not the Federal Government, the Commonwealth or a

11

municipal authority.

12

"Proprietary public entity."  A public entity which owns a

13

public-private transportation project and which is a party to a

14

public-private transportation partnership agreement.

15

"Public entity."  The Commonwealth, a municipal authority or

16

an authority created by statute which owns a transportation

17

facility. The term does not include the General Assembly and its

18

members, officers or agencies or any court or other office or

19

agency of the Pennsylvania judicial system.

20

"Public-private transportation partnership agreement."  A

21

contract for a transportation project which transfers the rights

22

for the use or control, in whole or in part, of a transportation

23

facility by a public entity to a development entity for a

24

definite term during which the development entity will provide

25

the transportation project to the public entity in return for

26

the right to receive all or a portion of the revenue generated

27

from the use of the transportation facility, or other payment,

28

such as the following transportation-related services:

29

(1)  Operations and maintenance.

30

(2)  Revenue collection.

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1

(3)  User fee collection or enforcement.

2

(4)  Design.

3

(5)  Construction.

4

(6)  Development and other activities with respect to

5

existing or new transportation facilities that enhance

6

traffic throughput, reduce congestion, improve safety or

7

otherwise manage or improve a transportation facility.

8

(7)  Financing.

9

"Public-private transportation project."  A transportation

10

project undertaken by a development entity pursuant to a public-

11

private transportation partnership agreement.

12

"Request for transportation projects."  A solicited or

13

unsolicited plan for a transportation project submitted to the

14

board by a public entity.

15

"Responsible offeror."  An offeror that has submitted a

16

responsive proposal and that possesses the capability to fully

17

perform the public-private transportation partnership agreement

18

requirements in all respects and the integrity and reliability

19

to assure good faith performance.

20

"Responsive proposal."  A proposal that conforms in all

21

material aspects to the requirements and criteria in the request

22

for proposals.

23

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

24

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

25

"Transportation facility."  A proposed or existing road,

26

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

27

transportation facility, vehicle parking facility, port

28

facility, multimodal transportation facility, airport, station,

29

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

30

transportation of persons, animals or goods, together with any

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1

buildings, structures, parking areas, appurtenances, intelligent

2

transportation systems and other property needed to operate or

3

related to the operation of the transportation facility. The

4

term includes any improvements or substantial enhancements or

5

modifications to an existing transportation facility.

6

"Transportation project."  An undertaking by a private entity

7

or a public entity, other than the public entity providing or

8

improving its own transportation facilities, to provide or

9

improve a transportation facility or transportation-related

10

service which is totally or partially located within this

11

Commonwealth.

12

§ 9104.  Public-Private Transportation Partnership Board.

13

(a)  Establishment.--There is established a board to be known

14

as the Public-Private Transportation Partnership Board.

15

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

16

following members:

17

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

18

chairperson of the board, or a designee who shall be an

19

employee of the department.

20

(2)  The Secretary of the Budget or a designee who shall

21

be an employee of the Office of the Budget.

22

(3)  Four members appointed by the General Assembly under

23

subsection (c).

24

(4)  One member appointed by the Governor under

25

subsection (d).

26

(c)  Legislative appointments.--

27

(1)  Appointments of members by the General Assembly

28

shall be made as follows:

29

(i)  One individual appointed by the President pro

30

tempore of the Senate.

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1

(ii)  One individual appointed by the Minority Leader

2

of the Senate.

3

(iii)  One individual appointed by the Speaker of the

4

House of Representatives.

5

(iv)  One individual appointed by the Minority Leader

6

of the House of Representatives.

7

(2)  Legislative appointees shall serve at the pleasure

8

of the appointing authority.

9

(3)  Legislative appointees shall:

10

(i)  Be residents of this Commonwealth, of mature

11

judgment and broad experience.

12

(ii)  Have expertise or substantial experience in one

13

or more of the following areas:

14

(A)  Transportation.

15

(B)  Finance.

16

(C)  Law.

17

(D)  Land use and public planning.

18

(4)  Legislative appointees may not hold any other

19

position as an elected official or employee of the

20

Commonwealth.

21

(d)  Gubernatorial appointment.--A member appointed under

22

subsection (b)(4):

23

(1)  May not hold any other position as an elected

24

official or employee of the Commonwealth.

25

(2)  Shall have expertise or substantial experience in

26

one or more of the following areas:

27

(i)  Transportation.

28

(ii)  Finance.

29

(iii)  Law.

30

(iv)  Land use and public planning.

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1

(3)  Shall serve at the pleasure of the Governor.

2

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

3

quorum. The adoption of a resolution or other action of the

4

board shall require a majority vote of the members of the board.

5

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

6

entitled to no compensation for their services as members of the

7

board but shall be entitled to reimbursement by the department

8

for all necessary and reasonable expenses incurred in connection

9

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

10

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

11

shall appoint initial board members within 30 days of the

12

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

13

board, the appointing authority shall appoint a successor member

14

within 30 days of the vacancy.

15

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

16

term of office shall directly or indirectly own, have any

17

significant financial interest in, be associated with or receive

18

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

19

public entity or private entity seeking to engage in a public-

20

private transportation partnership agreement.

21

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

22

board:

23

(1)  The act of February 14, 2008 (P.L.6, No.3), known as

24

the Right-to-Know Law.

25

(2)  The State Adverse Interest Act.

26

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

27

open meetings) and 11 (relating to ethics standards and

28

financial disclosure).

29

§ 9105.  Duties of board.

30

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

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

2

(2)  Adopt guidelines establishing the procedure by which

3

a public entity may submit a request for a transportation

4

project or a private entity may submit an unsolicited plan

5

for a transportation project to the board.

6

(3)  Consult with persons affected by proposed

7

transportation projects.

8

(4)  Evaluate and, where the board finds that the

9

requests or plans for transportation projects are in the best

10

interests of the Commonwealth and a public entity, approve

11

the requests or plans for transportation projects. The board

12

shall approve a proposed transportation project by adopting a

13

resolution. A copy of the resolution shall be delivered to

14

the chairman and minority chairman of the Transportation

15

Committee of the Senate and the chairman and minority

16

chairman of the Transportation Committee of the House of

17

Representatives.

18

(5)  Submit an annual report to the General Assembly

19

detailing all transportation projects evaluated and

20

resolutions adopted.

21

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

22

public policy and public interest and shall not be considered

23

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

24

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

25

(relating to judicial review of Commonwealth agency action) and

26

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

27

(c)  General Assembly.--The following shall apply:

28

(1)  The General Assembly may, within 20 calendar days or

29

9 legislative days, whichever is longer, of delivery of the

30

resolution under subsection (a)(4), pass a concurrent

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1

resolution rescinding the approval of a transportation

2

project if the transportation facility which is the subject

3

of the transportation project is owned by the Commonwealth.

4

(2)  If the General Assembly adopts the concurrent

5

resolution within the time period under paragraph (1) by

6

majority vote in both the Senate and the House of

7

Representatives, the transportation project shall be deemed

8

disapproved.

9

(3)  If the General Assembly fails to adopt the

10

concurrent resolution by majority vote in both the Senate and

11

the House of Representatives within the time period under

12

paragraph (1), the transportation project shall be deemed

13

approved.

14

§ 9106.  Operation of board.

15

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

16

necessary assistance to assist the board in carrying out its

17

duties and responsibilities, including retention of legal,

18

financial and technical consultants to assist with this role.

19

(b)  Analysis.--The department shall develop a detailed

20

analysis of a request or recommendation prior to approval by the

21

board.

22

(c)  Oversight.--If a transportation project becomes a

23

public-private transportation project, the department shall

24

retain oversight and monitor the public-private transportation

25

project, including periodic reports to the board, as necessary.

26

§ 9107.  Solicitations for transportation projects.

27

A public entity may solicit transportation projects through a

28

request for transportation projects. The public entity shall

29

give public notice of a request for transportation projects

30

consistent with section 9110(c) (relating to selection of

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1

development entities). Offerors shall submit their responses to

2

the public entity in the form and manner required by the request

3

for transportation projects. A public entity shall evaluate each

4

response to determine if the response is in the best interest of

5

the public entity. Upon being satisfied, the public entity may

6

prepare and submit a request to the board to review the

7

transportation project in accordance with this chapter.

8

§ 9108.  Transportation projects.

9

A public entity which seeks to undertake a transportation

10

project which has not been previously approved by the board

11

shall submit a request for the transportation project to the

12

board.

13

§ 9109.  Requests.

14

A request may be solicited or unsolicited and may provide for

15

the development or operation of transportation facilities using

16

a variety of project delivery methods and forms of agreement.

17

The methods may include:

18

(1)  Predevelopment agreements leading to other

19

implementing agreements.

20

(2)  A design-build agreement.

21

(3)  A design-build-operate agreement.

22

(4)  A design-build-maintain agreement.

23

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

24

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

25

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

26

(8)  An operate-maintain agreement.

27

(9)  A concession providing for the development entity to

28

design, build, operate, maintain, manage or lease a

29

transportation facility.

30

(10)  Any other innovative or nontraditional project

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1

delivery method or agreement or combination of methods or

2

agreements that the public entity determines will address the

3

transportation needs of the Commonwealth and the public

4

entity and serve the public interest.

5

§ 9110.  Selection of development entities.

6

(a)  Conditions for use.--If a transportation project is

7

approved under section 9105 (relating to duties of board), the

8

public entity may enter into a contract for the transportation

9

project by competitive sealed proposals.

10

(b)  Request for proposals.--After receiving the

11

determination required by subsection (a), a public entity shall

12

solicit proposals through a request for proposals.

13

(c)  Public notice.--A public entity shall give public notice

14

of a request for proposals consistent with regulations adopted

15

by the department. The notice shall be given a reasonable time

16

prior to the date set for the close of receipt of the proposals.

17

The method of public notice may include any of the following:

18

(1)  Electronic publication which is accessible to the

19

general public.

20

(2)  Advertisement as provided for in 45 Pa.C.S. § 306

21

(relating to use of trade publications).

22

(3)  Issuance of request for proposals to offerors on the

23

mailing list of the public entity.

24

(4)  Publication in a newspaper of general circulation.

25

(5)  Where prequalification is a requirement of

26

submitting a proposal, notification to all private entities

27

who have been prequalified by the public entity.

28

(d)  Copies of request for proposal.--Copies of a request for

29

proposals shall be made available to any interested person upon

30

request to the public entity. A public entity may establish

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1

procedures for the distribution of a request for proposals,

2

including the imposition of a fee to reimburse the public entity

3

for the costs of photocopying and mailing.

4

(e)  Receipt of proposals.--Offerors shall submit their

5

proposals to ensure that their proposals are received prior to

6

the time and date established for receipt of the proposals.

7

Proposals shall be submitted in the format required by the

8

request for proposals. Proposals shall be opened so as to avoid

9

disclosure of their contents to competing offerors.

10

(f)  Evaluation.--A public entity shall evaluate each

11

proposal to determine which proposal is in the best interest of

12

the public entity. In making this determination, a public entity

13

may consider any of the following:

14

(1)  Cost.

15

(2)  Price.

16

(3)  Financial commitment.

17

(4)  Innovative financing.

18

(5)  Bonding.

19

(6)  Technical, scientific, technological or

20

socioeconomic merit.

21

(7)  Financial strength and viability.

22

(8)  Design, operation and feasibility of the

23

transportation project.

24

(9)  Public reputation, qualifications, industry

25

experience and financial capacity of the private entity.

26

(10)  The ability of the transportation project to

27

improve economic growth, to improve public safety, to reduce

28

congestion, to increase capacity or to rehabilitate,

29

reconstruct or expand an existing transportation facility.

30

(11)  The compatibility of the proposal with existing

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1

local and regional land use plans.

2

(12)  The commitment of local communities to approve land

3

use plans in preparation for the transportation project.

4

(13)  Other factors deemed appropriate by the public

5

entity.

6

(g)  Weighted consideration.--The relative importance of each

7

evaluation factor shall be fixed prior to opening the proposals

8

and the public entity shall give substantial weight and priority

9

to the following factors:

10

(1)  The offeror commits to using American-made

11

construction materials.

12

(2)  The offeror commits to using Pennsylvania-made

13

steel.

14

(3)  The offeror's principal place of business is located

15

in the United States.

16

(4)  The offeror's principal place of business is located

17

in this Commonwealth.

18

(5)  The offeror has or will create a physical presence

19

in this Commonwealth.

20

(h)  Participation in evaluation.--If the public entity is

21

the Commonwealth, the department is required to invite its

22

comptroller to participate in the evaluation as a nonvoting

23

member of any evaluation committee. No individual who has been

24

employed by an offeror within the last two years may participate

25

in the evaluation of proposals.

26

(i)  Discussion with responsible offerors and revision of

27

proposals.--As provided in the request for proposals,

28

discussions and negotiations may be conducted with responsible

29

offerors for the purpose of clarification and of obtaining best

30

and final offers. Responsible offers shall be accorded fair and

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1

equal treatment with respect to any opportunity for discussion

2

and revision of proposals. In conducting discussions, there

3

shall be no disclosure of any information derived from proposals

4

submitted by competing offerors.

5

(j)  Selection for negotiation.--The responsible offeror

6

whose proposal is determined in writing to be in the best

7

interests of the public entity, taking into consideration all

8

evaluation factors, shall be selected for contract negotiation.

9

(k)  Cancellation.--A request for proposals may be canceled

10

at any time prior to the time a public-private transportation

11

partnership agreement is executed by all parties when it is in

12

the best interests of the public entity.

13

(l)  Award.--Upon reaching an agreement with a responsible

14

offeror, a public entity shall enter into a public-private

15

transportation partnership agreement with the responsible

16

offeror. The public-private transportation partnership agreement

17

shall be consistent with the requirements of this chapter. If

18

agreement cannot be reached with the best qualified responsible

19

offeror, then negotiations will be formally terminated with the

20

offeror. If proposals were submitted by one or more other

21

responsible offerors, negotiations may be conducted with the

22

other responsible offeror or responsible offerors in the order

23

of their respective qualification ranking. The contract may be

24

awarded to the responsible offeror then ranked as best

25

qualified.

26

(m)  Resolution of controversies involving the

27

Commonwealth.--If a prospective offeror, offeror or development

28

entity is aggrieved by a selection under this section and the

29

public entity or proprietary public entity in the invitation or

30

contract is the Commonwealth, the prospective offeror, offeror

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1

or development entity may file a protest or a claim, as

2

appropriate, in accordance with 62 Pa.C.S. Ch. 17 (relating to

3

legal and contractual remedies).

4

(n)  Resolution of controversies not involving the

5

Commonwealth.--If a development entity is aggrieved by a

6

selection under this section and the proprietary public entity

7

in the contract is an entity other than the Commonwealth, a

8

development entity may file a claim with the court of common

9

pleas where the proprietary public entity is located. The

10

processes for the filing and resolution of claims, including

11

rights, contents, timing, evaluation, determination and

12

remedies, which are established in 62 Pa.C.S. Ch. 17, shall

13

apply insofar as they are practicable.

14

§ 9111.  Public-private transportation partnership agreement.

15

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

16

partnership agreement shall include the following provisions:

17

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

18

leasing, acquisition or interest in, financing, installation,

19

construction, reconstruction, replacement, expansion,

20

operation, maintenance, improvement, equipping, modification,

21

expansion, enlargement, management, running, control and

22

operation of the public-private transportation project.

23

(2)  The term of the public-private transportation

24

partnership agreement.

25

(3)  The type of property interest or other relationship

26

the development entity will have in or with respect to the

27

public-private transportation partnership project, including

28

acquisition of rights-of-way and other property interests

29

that may be required.

30

(4)  Authorization for the proprietary public entity or

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1

its authorized representatives to inspect all assets and

2

properties of the public-private transportation project and

3

all books and records of the development entity relating to

4

the public-private transportation project to review the

5

development entity's performance under the public-private

6

transportation partnership agreement.

7

(5)  Grounds for termination of the public-private

8

transportation partnership agreement by the parties.

9

(6)  Procedures for amendment of the public-private

10

transportation partnership agreement.

11

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

12

breach, default or delay.

13

(8)  Requirements for a development entity to provide

14

performance and payment bonds, parent company guarantees,

15

letters of credit or other acceptable forms of security in an

16

amount acceptable to the proprietary public entity.

17

(9)  A requirement that ownership of a transportation

18

facility acquired or constructed go to or remain with the

19

proprietary public entity.

20

(10)  Standards for construction, maintenance and

21

operation of the public-private transportation project if the

22

activities are to be performed by the development entity.

23

(11)  Standards for capital improvement or modification

24

of the public-private transportation project if they are to

25

be made by the development entity.

26

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

27

be made by the proprietary public entity to the development

28

entity, including availability payments, performance-based

29

payment and payments of money and revenue-sharing with the

30

development entity.

- 18 -

 


1

(13)  Standards relating to how the parties will allocate

2

and share management of the risks of the public-private

3

transportation project.

4

(14)  Standards relating to how the parties will allocate

5

costs of development of the public-private transportation

6

project, including any cost overruns.

7

(15)  Standards relating to damages to be assessed for

8

nonperformance, specifying remedies available to the parties

9

and dispute resolution procedures.

10

(16)  Standards relating to performance criteria and

11

incentives.

12

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

13

private transportation partnership agreement, a

14

transportation facility that was the subject of the public-

15

private transportation partnership agreement must be in a

16

state of proper maintenance and repair and shall be returned

17

to the proprietary public entity in satisfactory condition at

18

no further cost to the proprietary public entity.

19

(18)  Provisions for law enforcement related to the

20

public-private transportation project.

21

(19)  An obligation of the development entity to offer

22

employment to any employee of the proprietary public entity

23

who would lose employment due to the execution of the public-

24

private transportation partnership agreement and who is in

25

good standing at the time of execution of the public-private

26

transportation partnership agreement, including salary,

27

retirement, health and welfare and benefits which are

28

substantially identical to the benefits received by the

29

employees immediately prior to execution of the public-

30

private transportation partnership agreement for the term of

- 19 -

 


1

the collective bargaining agreement of those employees in

2

effect.

3

(20)  Other terms and provisions as required under this

4

chapter or agreed to by the development entity and the

5

proprietary public entity.

6

(21)  An employee covered under a collective bargaining

7

agreement affected by a public-private transportation

8

partnership agreement shall be reassigned, without loss of

9

seniority, to another equal to, but not less than, position

10

within the same worksite where applicable or within a

11

remaining proximate worksite of other transportation

12

facilities. In the case of the department, this would mean a

13

position held within the same county maintenance district or,

14

in the case of regional transit authority, a position held

15

within that regional transit authority as applicable. Nothing

16

in this paragraph shall prevent an employee from choosing

17

employment with the private entity.

18

(22)  Provisions under which the development entity

19

agrees to develop, adopt and implement binding policies or

20

guidelines to ensure the following:

21

(i)  That all persons are accorded equal opportunity

22

in employment.

23

(ii)  That disadvantaged businesses, as certified and

24

listed by the Department of General Services in

25

accordance with 62 Pa.C.S. Ch. 21 (relating to small and

26

disadvantaged businesses), are accorded equal opportunity

27

in purchasing, contracting and subcontracting associated

28

with a public-private transportation partnership

29

agreement. This paragraph includes a development entity's

30

contractors, subcontractors, assignees, lessees, agents,

- 20 -

 


1

vendors and suppliers.

2

(b)  Term.--The proprietary public entity may enter into a

3

public-private transportation partnership agreement with any

4

development entity that includes the provisions under subsection

5

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

6

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

7

the department from entering into a public-private

8

transportation partnership agreement with another Commonwealth

9

agency in accordance with this chapter.

10

(d)  Public entity.--Nothing in this chapter shall prohibit a

11

public entity from entering into a public-private transportation

12

partnership agreement with one or more public entities in

13

accordance with this chapter.

14

(e)  Environmental costs.--

15

(1)  A proprietary public entity may provide in a public-

16

private transportation partnership agreement that it will pay

17

or reimburse, on terms that it deems appropriate, the

18

development entity for actual costs associated with necessary

19

remediation for existing environmental contaminants located

20

on, under or emanating from the real property associated with

21

a public-private transportation project as of the date the

22

development entity assumes responsibility for the public-

23

private transportation project. If the public-private

24

transportation partnership agreement provides for

25

environmental remediation, the public-private transportation

26

partnership agreement shall require that the proprietary

27

public entity be given:

28

(i)  Prompt notice of any claim against the

29

proprietary public entity or a third party pertaining to

30

the contaminants.

- 21 -

 


1

(ii)  The right to elect to undertake the necessary

2

remediation.

3

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

4

response to any claim.

5

(iv)  The right of prior approval before the

6

development entity may settle any claim.

7

(2)  No payment by a proprietary public entity under this

8

section may be for anything other than actual costs incurred

9

by a development entity to remediate the environmental

10

contamination on, under or emanating from the real property

11

associated with the public-private transportation project as

12

of the date the development entity assumes responsibility for

13

the public-private transportation project.

14

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

15

will be imposed for use of the public-private transportation

16

project and the basis by which any user fees will be imposed and

17

collected shall be determined in the public-private

18

transportation partnership agreement. If a user fee is proposed

19

as part of the public-private transportation project, a

20

proprietary public entity shall include provisions in the

21

agreement that authorize the collection of user fees, tolls,

22

fares or similar charges, including provisions that:

23

(1)  Specify technology to be used in the public-private

24

transportation project.

25

(2)  Establish circumstances under which the proprietary

26

public entity may receive a share of revenues from the

27

charges.

28

(3)  Govern the enforcement of electronic tolls,

29

including provisions for use of available technology.

30

(4)  Establish payment collection standards, including

- 22 -

 


1

provisions for enforcement of nonpayment and penalties.

2

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

3

the prescribed toll or user fee at any location on a public-

4

private transportation project where tolls or user fees are

5

collected by means of an electronic or other automated or

6

remote form of collection, the collection provisions of

7

section 8117 (relating to electronic toll collection) shall

8

apply except that the development entity shall possess all of

9

the rights, roles, limitations and responsibilities of the

10

Pennsylvania Turnpike Commission.

11

(g)  Amounts received under a public-private transportation

12

partnership agreement.--The net proceeds received by the

13

proprietary public entity under a public-private transportation

14

partnership agreement shall be available exclusively to provide

15

funding for transportation needs in this Commonwealth. The use

16

of the proceeds or other revenues from the public-private

17

transportation project shall comply with Federal or State law

18

restricting or limiting the use of revenue from the public-

19

private transportation project based on its public funding.

20

(h)  Definitions.--The following words and phrases when used

21

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

22

subsection unless the context clearly indicates otherwise:

23

"Disadvantaged business."  A small business which is owned or

24

controlled by a majority of persons, not limited to members of

25

minority groups, who:

26

(1)  Have been deprived of the opportunity to develop and

27

maintain a competitive position in the economy because of

28

social disadvantages.

29

(2)  Are veterans, including service-disabled veterans.

30

"Service-disabled veterans."  A veteran who possesses either

- 23 -

 


1

an adjudication letter from the United States Veterans

2

Administration establishing a service-connected disability

3

rating or a disability determination from the United States

4

Department of Defense.

5

"Small business."  The term shall have the meaning given to

6

it in 62 Pa.C.S. § 2102 (relating to definitions).

7

"Veteran."  An individual who:

8

(1)  Served in the active United States military in any

9

of the four current branches and all previous branches,

10

including a reserve component or the National Guard.

11

(2)  Was released or discharged from active military

12

service under conditions other than dishonorable.

13

(3)  Possesses a certificate of release or discharge from

14

active duty.

15

§ 9112.  Records of requests.

16

The following shall apply:

17

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

18

party to a public-private transportation partnership

19

agreement, the identity of the development entity selected,

20

the contents of the response of the development entity to the

21

request for proposals, the final proposal submitted by the

22

development entity and the form of the public-private

23

transportation partnership agreement shall be made public.

24

Any financial information of a development entity that was

25

requested in the request for proposals or during discussions

26

and negotiations to demonstrate the economic capability of a

27

development entity to fully perform the requirements of the

28

public-private transportation partnership agreement shall not

29

be subject to public inspection.

30

(2)  A proprietary public and a development entity may

- 24 -

 


1

agree, in their discretion, to make public any information

2

described under paragraph (1) that would not otherwise be

3

subject to public inspection.

4

(3)  If a proprietary public entity terminates a public-

5

private transportation partnership agreement for default,

6

rejects a private entity on the grounds that the private

7

entity is not responsible or suspends or debars a development

8

entity, the private entity or development entity, as

9

appropriate, shall, upon written request, be provided with a

10

copy of the information contained in the file of the private

11

entity or development entity maintained by the proprietary

12

public entity under a contractor responsibility program.

13

(4)  The following information shall not be public:

14

(i)  Information relating to proprietary information,

15

trade secrets, patents or exclusive licenses,

16

architectural and engineering plans and information

17

relating to competitive marketing materials and

18

strategies.

19

(ii)  Security information, including risk prevention

20

plans, detection and countermeasures, emergency

21

management plans, security and surveillance plans,

22

equipment and usage protocols and countermeasures.

23

(iii)  Records considered nonpublic matters or

24

information by the Securities and Exchange Commission

25

under 17 CFR 200.80 (relating to commission records and

26

information).

27

(iv)  Any financial information deemed confidential

28

by the proprietary public entity upon a showing of good

29

cause by an offeror or development entity.

30

(v)  Records prepared or utilized to evaluate a

- 25 -

 


1

proposal.

2

§ 9113.  Use of intellectual property.

3

Unless otherwise agreed and except to the extent not

4

transferable by law, the department or a proprietary public

5

entity shall have the right to use all or a portion of a

6

submitted proposal, including the technologies, techniques,

7

methods, processes and information contained in the proposal.

8

Notice of nontransferability by law shall be given to the

9

department and the proprietary public entity in response to the

10

request for proposals.

11

§ 9114.  Police powers and violations of law.

12

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

13

private transportation project is a highway, bridge, tunnel

14

overpass or similar transportation facility for motor vehicles,

15

75 Pa.C.S. (relating to vehicles) and other laws of this

16

Commonwealth or, if applicable, any local jurisdiction shall be

17

the same as those applying to conduct on similar transportation

18

facilities in this Commonwealth or the local jurisdiction.

19

Punishment for offenses shall be prescribed by law for conduct

20

occurring on similar transportation facilities in this

21

Commonwealth or the local jurisdiction.

22

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

23

arrests for violations of law in this Commonwealth shall have

24

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

25

public-private transportation project as they have in their

26

respective areas of jurisdiction. The grant of authority under

27

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

28

garages and other improvements of a development entity to any

29

greater degree than the police power extends to any other

30

private offices, buildings, garages and other improvements.

- 26 -

 


1

§ 9115.  Environmental and other authorizations.

2

(a)  The Administrative Code of 1929.--Notwithstanding any

3

other provision of law, neither soliciting nor approving a

4

request for proposals, nor executing a public-private

5

transportation partnership agreement under this chapter shall

6

constitute the submission of a preliminary plan or design to the

7

department under section 2002(b) of the act of April 9, 1929

8

(P.L.177, No.175), known as The Administrative Code of 1929.

9

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

10

transportation partnership agreement may require that prior to

11

commencing any construction in connection with the development,

12

operation or financing of any public-private transportation

13

project if the agreement requires environmental authorizations

14

to be obtained, the development entity shall do any of the

15

following:

16

(1)  Secure all necessary environmental permits and

17

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

18

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

19

Environmental Remediation Standards Act, obtain the approval

20

of the Department of Environmental Protection.

21

(2)  Complete environmental remediation of the site on

22

which the public-private transportation project is to be

23

located, including acts required under any agreement entered

24

into with the Department of Environmental Protection for

25

remediation of the site under the Land Recycling and

26

Environmental Remediation Standards Act.

27

§ 9116.  Taxation of development entity.

28

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

29

received by a development entity pursuant to a public-private

30

transportation partnership agreement are subject to a tax

- 27 -

 


1

imposed by a political subdivision prior to the effective date

2

of this section, the revenues or user fees shall continue to be

3

subject to the tax and to future increases in the rate of the

4

tax.

5

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

6

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

7

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

8

development entity pursuant to a public-private transportation

9

partnership agreement.

10

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

11

partnership agreement, lease, concession, franchise or other

12

contract involving real property of a public-private

13

transportation project shall be subject to a Commonwealth or

14

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

15

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

16

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

17

Code of 1971, or a successor statute.

18

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

19

private transportation project shall be considered public

20

property and shall be exempt from ad valorem property taxes and

21

special assessments levied against property by the Commonwealth

22

or any political subdivision.

23

§ 9117.  Power of eminent domain.

24

The exercise of the power of eminent domain by any condemnor

25

to acquire property for public-private transportation project

26

purposes under a public-private transportation partnership

27

agreement shall be considered a taking for a public purpose and

28

not for a private purpose or for private enterprise.

29

§ 9118.  Sovereign immunity.

30

Under section 11 of Article 1 of the Constitution of

- 28 -

 


1

Pennsylvania, it is declared to be the intent of the General

2

Assembly that the Commonwealth, and its officials and employees

3

and a municipal authority, and its officials and employees,

4

acting within the scope of their duties, shall continue to enjoy

5

sovereign immunity and official immunity and remain immune from

6

suit except as provided in section 9119 (relating to specific

7

performance). A claim against the Commonwealth and its officials

8

and employees or municipal authority and its officials and

9

employees shall be brought only in such manner and in such

10

courts and in such cases as directed by the provision of section

11

9111(e) (relating to public-private transportation partnership

12

agreement), 42 Pa.C.S. Ch. 85 (relating to matters affecting

13

government units), 62 Pa.C.S. Ch. 17 (relating to legal and

14

contractual remedies) or any procurement law applicable to a

15

municipal authority.

16

§ 9119.  Specific performance.

17

A proprietary public entity is authorized to agree that

18

specific performance shall be available to a development entity

19

as a remedy for a breach by the proprietary public entity of its

20

representations, covenants, warranties or other obligations

21

under the public-private transportation partnership agreement to

22

the extent set forth in the public-private transportation

23

partnership agreement.

24

§ 9120.  Applicability of other laws.

25

(a)  General rule.--Except as provided under subsections (b)

26

and (c), all provisions of existing law related to the

27

development, operation or financing of a transportation project

28

shall apply to a public-private transportation partnership

29

agreement entered into between a proprietary public entity and a

30

development entity to the extent they are applicable on the date

- 29 -

 


1

the public-private transportation partnership agreement is fully

2

executed. These provisions include:

3

(1)  The act of May 1, 1913 (P.L.155, No.104), referred

4

to as the Separations Act.

5

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

6

as the Pennsylvania Prevailing Wage Act.

7

(b)  Limitation.--The following apply:

8

(1)  If the public entity or the proprietary public

9

entity is the Commonwealth, 62 Pa.C.S. (relating to

10

procurement) shall apply only to the extent provided under

11

paragraph (2).

12

(2)  The following provisions shall apply if the public

13

entity or the proprietary public entity is the Commonwealth:

14

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

15

limitations).

16

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

17

suspension).

18

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

19

account system).

20

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

21

plant).

22

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

23

records).

24

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

25

procurement records).

26

(vii)  62 Pa.C.S. § Ch 17 (relating to legal and

27

contractual remedies).

28

(c)  Exception.--This chapter shall not apply to a

29

transportation project which a public entity is authorized under

30

law to undertake on the effective date of this subsection.

- 30 -

 


1

§ 9121.  Adverse interest.

2

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

3

apply:

4

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

5

entity which submits a response to a request for proposals

6

under section 9110 (relating to selection of development

7

entities), a request for transportation projects under

8

section 9107 (relating to solicitations for transportation

9

projects) or an unsolicited proposal, and which is also a

10

State adviser or a State consultant for the department or the

11

Pennsylvania Turnpike Commission, shall not be deemed to be

12

in violation of the State Adverse Interest Act while engaging

13

in any of the following activities:

14

(i)  Preparing or submitting a response to a request

15

for proposals or transportation projects.

16

(ii)  Participating in any activity with the

17

department related to a request for proposals or

18

transportation projects.

19

(iii)  Negotiating and entering into any contract

20

lease or public-private transportation partnership

21

agreement which results from a request for proposals or

22

transportation projects.

23

(iv)  Engaging in any other action taken in

24

furtherance of the purposes of this chapter.

25

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

26

request for proposals or transportation projects or acts as a

27

consultant or an adviser to a private entity which submits a

28

response to a request for proposals or transportation

29

projects to the department shall be prohibited from

30

consulting or providing advice to the department on the

- 31 -

 


1

review or approval of the response to the request for

2

proposals or transportation projects as submitted.

3

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

4

request for proposals or transportation projects or acts as a

5

consultant or an advisor to a private entity which submits a

6

response to a request for proposals or transportation

7

projects to the board shall be prohibited from consulting or

8

providing advice to the department on the review or approval

9

of the response to the request for proposals or

10

transportation projects 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 section 2(7) of the act of

15

July 19, 1957 (P.L.1017, No.451), known as the State Adverse

16

Interest Act.

17

"State consultant."  As defined in section 2(9) of the act of

18

July 19, 1957 (P.L.1017, No.451), known as the State Adverse

19

Interest Act.

20

§ 9122.  Federal, State, local and private assistance.

21

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

22

(1)  The department or a proprietary public entity may

23

accept from the United States or any of its agencies funds

24

that are available to the Commonwealth for carrying out this

25

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

26

loan guarantee or otherwise.

27

(2)  The department or a proprietary public entity is

28

authorized to assent to any Federal requirements, conditions

29

or terms of any Federal funding accepted by the department or

30

a proprietary public entity under this section.

- 32 -

 


1

(3)  The department or a proprietary public entity may

2

enter into agreements or other arrangements with the United

3

States or any of its agencies as may be necessary for

4

carrying out the purposes of this chapter.

5

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

6

proprietary public entity may accept from any source any grant,

7

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

8

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

9

for carrying out the purpose of this chapter.

10

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

11

between the development entity and a proprietary public entity,

12

any public-private transportation project may be financed, in

13

whole or in part, by contribution of any funds or property made

14

by a proprietary public entity, a development entity or an

15

affected jurisdiction.

16

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

17

public entity may combine Federal, State, local and private

18

funds to finance a public-private transportation project under

19

this chapter.

20

§ 9123.  Public-Private Transportation Account.

21

(a)  Establishment.--

22

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

23

separate account to be known as the Public-Private

24

Transportation Account.

25

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

26

purposes enumerated under subsection (c).

27

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

28

(1)  The department shall deposit in the account the

29

following:

30

(i)  All money received by the department pursuant to

- 33 -

 


1

the terms of a public-private transportation partnership

2

agreement under which the department is the proprietary

3

public entity.

4

(ii)  Repayment of any loans from the account made

5

under this chapter.

6

(iii)  Subject to the provisions of any public-

7

private transportation partnership agreement under which

8

the department is the proprietary public entity, monetary

9

damages and other amounts for failure by a development

10

entity to comply with the terms of the public-private

11

transportation partnership agreement.

12

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

13

transportation partnership agreement under which the

14

department is the proprietary public entity, payments

15

made from any insurance proceeds or reserve funds or

16

performance or payment bonds in connection with a public-

17

private transportation project.

18

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

19

account.

20

(2)  The Secretary of the Budget shall establish any

21

restricted accounts within the account as the secretary deems

22

necessary for the proper administration of the account.

23

(3)  All money related to any public-private

24

transportation partnership agreement in which the department

25

is not the proprietary public entity shall not be held in the

26

account, but shall be held by the proprietary public entity

27

or its agent.

28

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

29

continuously appropriated to the department for the following

30

purposes:

- 34 -

 


1

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

2

to repay the Federal funding agencies.

3

(2)  Paying all amounts designated by the department as

4

required for repayment or defeasance of outstanding bonds.

5

(3)  Paying costs of maintenance, operating and financing

6

of transportation facilities in this Commonwealth which are

7

available for use by the public, including the costs of

8

insurance or reserves against risks of contingencies.

9

(4)  Paying expenses incurred under or in connection with

10

any public-private transportation partnership agreement by

11

the department, including professional fees and expenses.

12

(5)  Paying the costs of the department relating to

13

performing and administering duties under this chapter.

14

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

15

costs incurred to perform its duties, including paying

16

professional fees and expenses.

17

(7)  Paying costs of any purpose authorized under this

18

chapter.

19

(d)  Amounts received.--The net proceeds received under a

20

public-private transportation partnership agreement shall be

21

available exclusively to provide funding for transportation

22

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

23

revenues from the public-private transportation project shall be

24

in accord with Federal or State law restricting or limiting the

25

use of revenue from the public-private transportation project

26

based on its public funding.

27

§ 9124.  Pennsylvania Turnpike Commission.

28

The Pennsylvania Turnpike Commission may not enter into a

29

public-private transportation partnership agreement in the

30

capacity of a proprietary public entity with respect to granting

- 35 -

 


1

substantial oversight and control over the Turnpike Mainline to

2

another entity unless specific authority is granted through an

3

act of law passed by the General Assembly. However, this shall

4

not restrict the Pennsylvania Turnpike Commission from entering

5

into a public-private transportation partnership agreement under

6

this chapter or under other statutes which does not involve

7

granting substantial oversight and control over the Turnpike

8

Mainline to another entity.

9

§ 9125.  Regulations.

10

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

11

of this chapter, the department is authorized to promulgate

12

regulations or publish guidelines that include the following:

13

(1)  The process for review of a request for proposals or

14

transportation projects or responses to requests for

15

proposals or transportation projects issued by a public

16

entity.

17

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

18

to competing responses to requests for proposals or

19

transportation projects.

20

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

21

for adequate review of and response to each stage of review

22

of a proposal or transportation project.

23

(4)  The process and procedures to ensure that a

24

development entity that enters into a public-private

25

transportation partnership agreement with a proprietary

26

public entity for a public-private transportation project

27

develops, adopts and implements binding policies or

28

guidelines to ensure that all persons are accorded equal

29

opportunity in employment, contracting, subcontracting and

30

purchasing associated with the public-private transportation

- 36 -

 


1

project.

2

(5)  Any other provisions which are required under this

3

chapter or which the department determines are appropriate

4

for implementation of this chapter.

5

(b)  Temporary regulations.--Notwithstanding any other

6

provision of law, any regulation promulgated by the department

7

under this chapter during the two years following the effective

8

date of this section shall be deemed temporary regulations which

9

shall expire no later than three years following the effective

10

date of this section or upon promulgation of final regulations.

11

The temporary regulations shall not be subject to any of the

12

following:

13

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

14

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

15

Documents Law.

16

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

17

the Regulatory Review Act.

18

Section 2.  Repeals are as follows:

19

(1)  The General Assembly declares that the repeal under

20

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

21

Pa.C.S. Ch. 91.

22

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

23

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

24

repealed insofar as it is inconsistent with the addition of

25

74 Pa.C.S. Ch. 91.

26

Section 3.  This act shall take effect as follows:

27

(1)  The addition of 74 Pa.C.S. §§ 9103, 9104, 9105, 9106

28

and 9125 shall take effect immediately.

29

(2)  This section shall take effect immediately.

30

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

- 37 -

 


1

days.

2

Section 1.  Title 74 of the Pennsylvania Consolidated

<--

3

Statutes is amended by adding a part to read:

4

PART V

5

TRANSPORTATION INFRASTRUCTURE

6

Chapter

7

91.  Public-Private Transportation Partnership

8

CHAPTER 91

9

PUBLIC-PRIVATE TRANSPORTATION PARTNERSHIP

10

Sec.

11

9101.  Scope of chapter.

12

9102.  Findings and declaration of policy.

<--

13

9103.  Definitions.

14

9104.  Public-Private Transportation Partnership Board.

15

9105.  Duties of board.

16

9106.  Operation of board.

17

9107.  Solicitations for transportation projects.

18

9108.  Transportation projects.

19

9109.  Requests.

20

9110.  Selection of development entities.

21

9111.  Public-private transportation partnership agreement.

22

9112.  Records of requests.

23

9113.  Use of intellectual property.

24

9114.  Police powers and violations of law.

25

9115.  Environmental and other authorizations.

26

9116.  Taxation of development entity.

27

9117.  Power of eminent domain.

28

9118.  Sovereign immunity.

29

9119.  Specific performance.

30

9120.  Applicability of other laws.

- 38 -

 


1

9121.  Adverse interest.

2

9122.  Federal, State, local and private assistance.

3

9123.  Public-Private Transportation Account.

4

9124.  Pennsylvania Turnpike Commission.

5

9125.  Regulations.

6

9102.  Definitions.

<--

7

9103.  Public-Private Transportation Partnership Board.

8

9104.  Duties of board.

9

9105.  Operation of board.

10

9106.  Solicitations for transportation projects.

11

9107.  Transportation projects.

12

9108.  Requests.

13

9109.  Selection of development entities.

14

9110.  Public-private transportation partnership agreement.

15

9111.  Records of requests.

16

9112.  Use of intellectual property.

17

9113.  Police powers and violations of law.

18

9114.  Environmental and other authorizations.

19

9115.  Taxation of development entity.

20

9116.  Power of eminent domain.

21

9117.  Sovereign immunity.

22

9118.  Specific performance.

23

9119.  Applicability of other laws.

24

9120.  Adverse interest.

25

9121.  Federal, State, local and private assistance.

26

9122.  Public-Private Transportation Account.

27

9123.  Pennsylvania Turnpike Commission.

28

9124.  Regulations.

29

§ 9101.  Scope of chapter.

30

This chapter relates to public-private transportation

- 39 -

 


1

partnerships.

2

§ 9102.  Findings and declaration of policy.

<--

3

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

4

Assembly finds, determines and declares as follows:

5

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

6

increase capacity, improve safety and enhance economic

7

efficiency of transportation facilities throughout this

8

Commonwealth.

9

(2)  The public entities have limited resources to fund

10

the maintenance and expansion of their respective

11

transportation facilities.

12

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

13

addressed, alternative funding mechanisms and strategies must

14

be developed to supplement existing public revenue sources.

15

(4)  (Reserved).

16

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

17

operation, maintenance, construction and improvement of toll

18

roads is a proprietary function which may be delegated to a

19

private entity consistent with section 31 of Article III of

20

the Constitution of Pennsylvania.

21

(6)  Authorizing public entities to enter into

22

transportation partnership agreements with private entities

23

and other public entities for the development, operation and

24

financing of transportation facilities can result in greater

25

availability of transportation facilities to the public in a

26

timely, efficient and less costly fashion, thereby serving

27

the public safety and welfare.

28

(7)  Assuring that public-private transportation projects

29

are developed, operated and financed in a cost-effective

30

manner is an important factor in promoting the health, safety

- 40 -

 


1

and welfare of the citizens of this Commonwealth.

2

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

3

(1)  To encourage private entities to invest in this

4

Commonwealth by participating in the development, operation

5

or financing of transportation facilities.

6

(2)  To provide public entities and private entities with

7

the authority and flexibility in contracting for the

8

development, operation and financing of transportation

9

facilities.

10

(3)  To authorize public entities to contract with

11

private and other public entities to provide transportation

12

facilities and related services.

13

§ 9103 9102.  Definitions.

<--

14

The following words and phrases when used in this chapter

15

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

16

context clearly indicates otherwise:

17

"Account."  The Public-Private Transportation Account.

18

"Board."  The Public-Private Transportation Partnership

19

Board.

20

"Department."  The Department of Transportation of the

21

Commonwealth.

22

"Development entity."  An entity which is a party to a

23

public-private transportation partnership agreement and which is

24

any of the following:

25

(1)  A private entity.

26

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

27

providing or improving its own transportation facilities.

28

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

29

which is capable of charging an account holder for the

30

prescribed toll by electronic transmission of information. The

- 41 -

 


1

term includes open road tolls, video tolls or other similar

2

structural or technological enhancements pertaining to tolls.

3

"Offeror."  A person that submits a proposal or a response in

4

answer to a request for proposals or transportation projects.

5

"Private entity."  A person, entity, group or organization

6

that is not the Federal Government, the Commonwealth or a

7

municipal authority.

8

"Proprietary public entity."  A public entity which owns a

9

public-private transportation project and which is a party to a

10

public-private transportation partnership agreement.

11

"Public entity."  The Commonwealth A Commonwealth agency as

<--

12

defined in 62 Pa.C.S. § 103 (relating to definitions), a

13

municipal authority or an authority created by statute which

14

owns a transportation facility. The term includes the

<--

15

Pennsylvania Turnpike Commission. The term does not include the

16

General Assembly and its members, officers or agencies or any

17

court or other office or agency of the Pennsylvania judicial

18

system.

19

"Public-private transportation partnership agreement."  A

20

contract for a transportation project which transfers the rights

21

for the use or control, in whole or in part, of a transportation

22

facility by a public entity to a development entity for a

23

definite term during which the development entity will provide

24

the transportation project to the public entity in return for

25

the right to receive all or a portion of the revenue generated

26

from the use of the transportation facility, or other payment,

27

such as the following transportation-related services:

28

(1)  Operations and maintenance.

29

(2)  Revenue collection.

30

(3)  User fee collection or enforcement.

- 42 -

 


1

(4)  Design.

2

(5)  Construction.

3

(6)  Development and other activities with respect to

4

existing or new transportation facilities that enhance

5

traffic throughput, reduce congestion, improve safety or

6

otherwise manage or improve a transportation facility.

7

(7)  Financing.

8

"Public-private transportation project."  A transportation

9

project undertaken by a development entity pursuant to a public-

10

private transportation partnership agreement.

11

"Request for transportation projects."  A solicited or

12

unsolicited plan for a transportation project submitted to the

13

board by a public entity.

14

"Responsible offeror."  An offeror that has submitted a

15

responsive proposal and that possesses the capability to fully

16

perform the public-private transportation partnership agreement

17

requirements in all respects and the integrity and reliability

18

to assure good faith performance.

19

"Responsive proposal."  A proposal that conforms in all

20

material aspects to the requirements and criteria in the request

21

for proposals.

22

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

23

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

24

"Transportation facility."  A proposed or existing road,

25

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

26

transportation facility, vehicle parking facility, port

27

facility, multimodal transportation facility, airport, station,

28

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

29

transportation of persons, animals or goods, together with any

30

buildings, structures, parking areas, appurtenances, intelligent

- 43 -

 


1

transportation systems and other property needed to operate or

2

related to the operation of the transportation facility. The

3

term includes any improvements or substantial enhancements or

4

modifications to an existing transportation facility.

5

"Transportation project."  An undertaking by a private entity

6

or a public entity, other than the public entity providing or

7

improving its own transportation facilities, to provide or

8

improve a transportation facility or transportation-related

9

service which is totally or partially located within this

10

Commonwealth.

11

§ 9104 9103.  Public-Private Transportation Partnership Board.

<--

12

(a)  Establishment.--There is established a board to be known

13

as the Public-Private Transportation Partnership Board.

14

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

15

following members:

16

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

17

chairperson of the board, or a designee who shall be an

18

employee of the department.

19

(2)  The Secretary of the Budget or a designee who shall

20

be an employee of the Office of the Budget.

21

(3)  Four members appointed by the General Assembly under

22

subsection (c).

23

(4)  One member appointed by the Governor under

24

subsection (d).

25

(c)  Legislative appointments.--

26

(1)  Appointments of members by the General Assembly

27

shall be made as follows:

28

(i)  One individual appointed by the President pro

29

tempore of the Senate.

30

(ii)  One individual appointed by the Minority Leader

- 44 -

 


1

of the Senate.

2

(iii)  One individual appointed by the Speaker of the

3

House of Representatives.

4

(iv)  One individual appointed by the Minority Leader

5

of the House of Representatives.

6

(2)  Legislative appointees shall be residents of this

7

Commonwealth and serve at the pleasure of the appointing

8

authority.

9

(3)  Legislative appointees shall have expertise or

10

substantial experience in one or more of the following areas:

11

(i)  Transportation.

12

(ii)  Finance.

13

(iii)  Law.

14

(iv)  Land use and public planning.

15

(d)  Gubernatorial appointment.--A member appointed under

16

subsection (b)(4):

17

(1)  May not hold any other position as an elected

18

official or employee of the Commonwealth.

19

(2)  Shall be a resident of this Commonwealth and have

20

expertise or substantial experience in one or more of the

21

following areas:

22

(i)  Transportation.

23

(ii)  Finance.

24

(iii)  Law.

25

(iv)  Land use and public planning.

26

(3)  Shall serve at the pleasure of the Governor.

27

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

<--

28

a quorum. The adoption of a resolution or other action of the

29

board shall require a majority vote of the members of the board.

30

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

- 45 -

 


1

entitled to no compensation for their services as members of the

2

board but shall be entitled to reimbursement by the department

3

for all necessary and reasonable expenses incurred in connection

4

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

5

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

6

shall appoint initial board members within 30 days of the

7

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

8

board, the appointing authority shall appoint a successor member

9

within 30 days of the vacancy.

10

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

11

term of office shall directly or indirectly own, have any

12

significant financial interest in, be associated with or receive

13

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

14

public entity or private entity seeking to engage in a public-

15

private transportation partnership agreement. The provisions of

16

this subsection do shall not apply to the salary of a

<--

17

Commonwealth employee.

18

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

19

board:

20

(1)  The act of February 14, 2008 (P.L.6, No.3), known as

21

the Right-to-Know Law.

22

(2)  The State Adverse Interest Act.

23

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

24

open meetings) and 11 (relating to ethics standards and

25

financial disclosure).

26

§ 9105 9104.  Duties of board.

<--

27

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

28

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

29

(2)  Adopt guidelines establishing the procedure by which

30

a public entity may submit a request for a transportation

- 46 -

 


1

project or a private entity may submit an unsolicited plan

2

for a transportation project to the board.

3

(3)  Consult with persons affected by proposed

4

transportation projects.

5

(4)  Evaluate and, where the board finds that the

6

requests or plans for transportation projects are in the best

7

interests of the Commonwealth and a public entity, approve

8

the requests or plans for transportation projects. The board

9

shall approve a proposed transportation project by adopting a

10

resolution.

11

(5)  Submit an annual report to the General Assembly

12

detailing all transportation projects evaluated and

13

resolutions adopted.

14

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

15

public policy and public interest and shall not be considered

16

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

17

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

18

(relating to judicial review of Commonwealth agency action) and

19

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

20

(c)  General Assembly.--The following shall apply:

21

(1)  The General Assembly may, within 20 calendar days or 

22

nine legislative days, whichever is longer, of the adoption

23

of the resolution under subsection (a)(4), pass a concurrent

24

resolution rescinding the approval of a transportation

25

project if the transportation facility which is the subject

26

of the transportation project is owned by the Commonwealth.

27

(2)  If the General Assembly adopts the concurrent

28

resolution within the time period under paragraph (1) by

29

majority vote in both the Senate and the House of

30

Representatives, the transportation project shall be deemed

- 47 -

 


1

disapproved.

2

(3)  If the General Assembly fails to adopt the

3

concurrent resolution by majority vote in both the Senate and

4

the House of Representatives within the time period under

5

paragraph (1), the transportation project shall be deemed

6

approved.

7

§ 9106 9105.  Operation of board.

<--

8

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

9

necessary assistance to assist the board in carrying out its

10

duties and responsibilities, including retention of legal,

11

financial and technical consultants to assist with this role.

12

(b)  Analysis.--The department shall develop a detailed

13

analysis of a request or recommendation prior to approval by the

14

board.

15

(c)  Oversight.--If a transportation project becomes a

16

public-private transportation project, the department shall

17

retain oversight and monitor the public-private transportation

18

project, including periodic reports to the board, as necessary.

19

§ 9107 9106.  Solicitations for transportation projects.

<--

20

A public entity may solicit transportation projects through a

21

request for transportation projects. The public entity shall

22

give public notice of a request for transportation projects

23

consistent with section 9110(c) 9109(c) (relating to selection

<--

24

of development entities). Offerors shall submit their responses

25

to the public entity in the form and manner required by the

26

request for transportation projects. A public entity shall

27

evaluate each response to determine if the response is in the

28

best interest of the public entity. Upon being satisfied, the

29

public entity may prepare and submit a request to the board to

30

review the transportation project in accordance with this

- 48 -

 


1

chapter.

2

§ 9108 9107.  Transportation projects.

<--

3

(a)  Submission.--Except as provided under subsection (b), a

4

public entity which seeks to undertake a transportation project

5

which has not been previously approved by the board shall submit

6

a request for the transportation project to the board.

7

(b)  Exception.--This chapter shall not apply to a

8

transportation project which a public entity is authorized under

9

law to undertake on the effective date of this subsection.

10

§ 9109 9108.  Requests.

<--

11

A request may be solicited or unsolicited and may provide for

12

the development or operation of transportation facilities using

13

a variety of project delivery methods and forms of agreement.

14

The methods may include:

15

(1)  Predevelopment agreements leading to other

16

implementing agreements.

17

(2)  A design-build agreement.

18

(3)  A design-build-operate agreement.

19

(4)  A design-build-maintain agreement.

20

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

21

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

22

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

23

(8)  An operate-maintain agreement.

24

(9)  A concession providing for the development entity to

25

design, build, operate, maintain, manage or lease a

26

transportation facility.

27

(10)  Any other innovative or nontraditional project

28

delivery method or agreement or combination of methods or

29

agreements that the public entity determines will address the

30

transportation needs of the Commonwealth and the public

- 49 -

 


1

entity and serve the public interest.

2

§ 9110 9109.  Selection of development entities.

<--

3

(a)  Conditions for use.--If a transportation project is

4

approved under section 9105 9104 (relating to duties of board),

<--

5

the public entity may enter into a contract for the

6

transportation project by competitive sealed proposals.

7

(b)  Request for proposals.--After receiving the

8

determination required by subsection (a), a public entity shall

9

solicit proposals through a request for proposals.

10

(c)  Public notice.--A public entity shall give public notice

11

of a request for proposals consistent with regulations adopted

12

by the department. The notice shall be given a reasonable time

13

prior to the date set for the close of receipt of the proposals.

14

The method of public notice may include any of the following:

15

(1)  Electronic publication which is accessible to the

16

general public.

17

(2)  Advertisement as provided for in 45 Pa.C.S. § 306

18

(relating to use of trade publications).

19

(3)  Issuance of request for proposals to offerors on the

20

mailing list of the public entity.

21

(4)  Publication in a newspaper of general circulation.

22

(5)  Where prequalification is a requirement of

23

submitting a proposal, notification to all private entities

24

who have been prequalified by the public entity.

25

(d)  Copies of request for proposal.--Copies of a request for

26

proposals shall be made available to any interested person upon

27

request to the public entity. A public entity may establish

28

procedures for the distribution of a request for proposals,

29

including the imposition of a fee to reimburse the public entity

30

for the costs of photocopying and mailing.

- 50 -

 


1

(e)  Receipt of proposals.--Offerors shall submit their

2

proposals to ensure that their proposals are received prior to

3

the time and date established for receipt of the proposals.

4

Proposals shall be submitted in the format required by the

5

request for proposals. Proposals shall be opened so as to avoid

6

disclosure of their contents to competing offerors.

7

(f)  Evaluation.--A public entity shall evaluate each

8

proposal to determine which proposal has the best value for and

9

is in the best interest of the public entity. In making this

10

determination, a public entity may consider any of the

11

following:

12

(1)  Cost.

13

(2)  Price.

14

(3)  Financial commitment.

15

(4)  Innovative financing.

16

(5)  Bonding.

17

(6)  Technical, scientific, technological or

18

socioeconomic merit.

19

(7)  Financial strength and viability.

20

(8)  Design, operation and feasibility of the

21

transportation project.

22

(9)  Public reputation, qualifications, industry

23

experience and financial capacity of the private entity.

24

(10)  The ability of the transportation project to

25

improve economic growth, to improve public safety, to reduce

26

congestion, to increase capacity or to rehabilitate,

27

reconstruct or expand an existing transportation facility.

28

(11)  The compatibility of the proposal with existing

29

local and regional land use plans.

30

(12)  The commitment of local communities to approve land

- 51 -

 


1

use plans in preparation for the transportation project.

2

(13)  Other factors deemed appropriate by the public

3

entity.

4

(g)  Weighted consideration.--The relative importance of each

5

evaluation factor shall be fixed prior to opening the proposals.

6

(h)  Participation in evaluation.--If the public entity is

7

the a Commonwealth agency, the department is required to invite

<--

8

its comptroller to participate in the evaluation as a nonvoting

9

member of any evaluation committee. No individual who has been

10

employed by an offeror within the last two years may participate

11

in the evaluation of proposals.

12

(i)  Discussion with responsible offerors and revision of

13

proposals.--As provided in the request for proposals,

14

discussions and negotiations may be conducted with responsible

15

offerors for the purpose of clarification and of obtaining best

16

and final offers. Responsible offers shall be accorded fair and

17

equal treatment with respect to any opportunity for discussion

18

and revision of proposals. In conducting discussions, there

19

shall be no disclosure of any information derived from proposals

20

submitted by competing offerors.

21

(j)  Selection for negotiation.--The responsible offeror

22

whose proposal is determined in writing to be the best value for

23

and in the best interests of the public entity, taking into

24

consideration all evaluation factors, shall be selected for

25

contract negotiation.

26

(k)  Cancellation.--A request for proposals may be canceled

27

at any time prior to the time a public-private transportation

28

partnership agreement is executed by all parties when it is in

29

the best interests of the public entity.

30

(l)  Award.--Upon reaching an agreement with a responsible

- 52 -

 


1

offeror, a public entity shall enter into a public-private

2

transportation partnership agreement with the responsible

3

offeror. The public-private transportation partnership agreement

4

shall be consistent with the requirements of this chapter. If

5

agreement cannot be reached with the best qualified responsible

6

offeror, then negotiations will be formally terminated with the

7

offeror. If proposals were submitted by one or more other

8

responsible offerors, negotiations may be conducted with the

9

other responsible offeror or responsible offerors in the order

10

of their respective qualification ranking. The contract may be

11

awarded to the responsible offeror then ranked as best

12

qualified.

13

(m)  Resolution of controversies involving the

14

Commonwealth.--If a prospective offeror, offeror or development

15

entity is aggrieved by a selection under this section and the

16

public entity or proprietary public entity in the invitation or

17

contract is the a Commonwealth or the Pennsylvania Turnpike

<--

18

Commission agency, the prospective offeror, offeror or

<--

19

development entity may file a protest or a claim, as

20

appropriate, in accordance with 62 Pa.C.S. Ch. 17 (relating to

21

legal and contractual remedies).

22

(n)  Resolution of controversies not involving the

23

Commonwealth.--If a development entity is aggrieved by a

24

selection under this section and the proprietary public entity

25

in the contract is an entity other than the Commonwealth, a

26

development entity may file a claim with the court of common

27

pleas where the proprietary public entity is located. The

28

process for the filing and resolution of claims, including

29

rights, contents, timing, evaluation, determination and

30

remedies, which are established in 62 Pa.C.S. Ch. 17, shall

- 53 -

 


1

apply insofar as they are practicable.

2

§ 9111 9110.  Public-private transportation partnership

<--

3

agreement.

4

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

5

partnership agreement shall include the following provisions:

6

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

7

leasing, acquisition or interest in, financing, installation,

8

construction, reconstruction, replacement, expansion,

9

operation, maintenance, improvement, equipping, modification,

10

expansion, enlargement, management, running, control and

11

operation of the public-private transportation project.

12

(2)  The term of the public-private transportation

13

partnership agreement.

14

(3)  The type of property interest or other relationship

15

the development entity will have in or with respect to the

16

public-private transportation partnership project, including

17

acquisition of rights-of-way and other property interests

18

that may be required.

19

(4)  Authorization for the proprietary public entity or

20

its authorized representatives to inspect all assets and

21

properties of the public-private transportation project and

22

all books and records of the development entity relating to

23

the public-private transportation project to review the

24

development entity's performance under the public-private

25

transportation partnership agreement.

26

(5)  Grounds for termination of the public-private

27

transportation partnership agreement by the parties.

28

(6)  Procedures for amendment of the public-private

29

transportation partnership agreement.

30

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

- 54 -

 


1

breach, default or delay.

2

(8)  Requirements for a private development entity to

3

provide performance and payment bonds, parent company

4

guarantees, letters of credit or other acceptable forms of

5

security in an amount acceptable to the proprietary public

6

entity.

7

(9)  A requirement that ownership of a transportation

8

facility acquired or constructed go to or remain with the

9

proprietary public entity.

10

(10)  Standards for construction, maintenance and

11

operation of the public-private transportation project if the

12

activities are to be performed by the development entity.

13

(11)  Standards for capital improvement or modification

14

of the public-private transportation project if they are to

15

be made by the development entity.

16

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

17

be made by the proprietary public entity to the development

18

entity, including availability payments, performance-based

19

payment and payments of money and revenue-sharing with the

20

development entity.

21

(13)  Standards relating to how the parties will allocate

22

and share management of the risks of the public-private

23

transportation project.

24

(14)  Standards relating to how the parties will allocate

25

costs of development of the public-private transportation

26

project, including any cost overruns.

27

(15)  Standards relating to damages to be assessed for

28

nonperformance, specifying remedies available to the parties

29

and dispute resolution procedures.

30

(16)  Standards relating to performance criteria and

- 55 -

 


1

incentives.

2

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

3

private transportation partnership agreement, a

4

transportation facility that was the subject of the public-

5

private transportation partnership agreement must be in a

6

state of proper maintenance and repair and shall be returned

7

to the proprietary public entity in satisfactory condition at

8

no further cost to the proprietary public entity.

9

(18)  Provisions for law enforcement related to the

10

public-private transportation project.

11

(19)  An obligation of the development entity to offer

12

employment to any employee of the proprietary public entity

13

who would lose employment due to the execution of the public-

14

private transportation partnership agreement and who is in

15

good standing at the time of execution of the public-private

16

transportation partnership agreement, including salary,

17

retirement, health and welfare and benefits which are

18

substantially identical to the benefits received by the

19

employees immediately prior to execution of the public-

20

private transportation partnership agreement for the term of

21

the collective bargaining agreement of those employees in

22

effect. An employee of the proprietary public entity who does

23

not accept employment with the development entity shall be

24

reassigned to an equivalent position, without loss of

25

seniority, within a worksite in as close proximity to the

26

public-private transportation project as feasible. Nothing in

27

this paragraph shall impair provisions related to furloughs

28

and layoffs of the collective bargaining agreement of those

29

employees in effect.

30

(20)  Other terms and provisions as required under this

- 56 -

 


1

chapter or agreed to by the development entity and the

2

proprietary public entity.

3

(b)  Term.--The proprietary public entity may enter into a

4

public-private transportation partnership agreement with any

5

development entity that includes the provisions under subsection

6

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

7

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

8

the department from entering into a public-private

9

transportation partnership agreement with another Commonwealth

10

agency in accordance with this chapter.

11

(d)  Public entity.--Nothing in this chapter shall prohibit a

12

public entity from entering into a public-private transportation

13

partnership agreement with one or more public entities in

14

accordance with this chapter.

15

(e)  Environmental costs.--

16

(1)  A proprietary public entity may provide in a public-

17

private transportation partnership agreement that it will pay

18

or reimburse, on terms that it deems appropriate, the

19

development entity for actual costs associated with necessary

20

remediation for existing environmental contaminants located

21

on, under or emanating from the real property associated with

22

a public-private transportation project as of the date the

23

development entity assumes responsibility for the public-

24

private transportation project. If the public-private

25

transportation partnership agreement provides for

26

environmental remediation, the public-private transportation

27

partnership agreement shall require that the proprietary

28

public entity be given:

29

(i)  Prompt notice of any claim against the

30

proprietary public entity or a third party pertaining to

- 57 -

 


1

the contaminants.

2

(ii)  The right to elect to undertake the necessary

3

remediation.

4

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

5

response to any claim.

6

(iv)  The right of prior approval before the

7

development entity may settle any claim.

8

(2)  No payment by a proprietary public entity under this

9

section may be for anything other than actual costs incurred

10

by a development entity to remediate the environmental

11

contamination on, under or emanating from the real property

12

associated with the public-private transportation project as

13

of the date the development entity assumes responsibility for

14

the public-private transportation project.

15

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

16

will be imposed for use of the public-private transportation

17

project and the basis by which any user fees will be imposed and

18

collected shall be determined in the public-private

19

transportation partnership agreement. If a user fee is proposed

20

as part of the public-private transportation project, a

21

proprietary public entity shall include provisions in the

22

agreement that authorize the collection of user fees, tolls,

23

fares or similar charges, including provisions that:

24

(1)  Specify technology to be used in the public-private

25

transportation project.

26

(2)  Establish circumstances under which the proprietary

27

public entity may receive a share of revenues from the

28

charges.

29

(3)  Govern the enforcement of electronic tolls,

30

including provisions for use of available technology.

- 58 -

 


1

(4)  Establish payment collection standards, including

2

provisions for enforcement of nonpayment and penalties.

3

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

4

the prescribed toll or user fee at any location on a public-

5

private transportation project where tolls or user fees are

6

collected by means of an electronic or other automated or

7

remote form of collection, the collection provisions of

8

section 8117 (relating to electronic toll collection) shall

9

apply except that the development entity shall possess all of

10

the rights, roles, limitations and responsibilities of the

11

Pennsylvania Turnpike Commission.

12

(g)  Amounts received under a public-private transportation

13

partnership agreement.--The net proceeds received by the

14

proprietary public entity under a public-private transportation

15

partnership agreement shall be available exclusively to provide

16

funding for transportation needs in this Commonwealth. The use

17

of the proceeds or other revenues from the public-private

18

transportation project shall comply with Federal or State law

19

restricting or limiting the use of revenue from the public-

20

private transportation project based on its public funding.

21

§ 9112 9111.  Records of requests.

<--

22

The following shall apply:

23

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

24

party to a public-private transportation partnership

25

agreement, the identity of the development entity selected,

26

the contents of the response of the development entity to the

27

request for proposals, the final proposal submitted by the

28

development entity and the form of the public-private

29

transportation partnership agreement shall be made public.

30

Any financial information of a development entity that was

- 59 -

 


1

requested in the request for proposals or during discussions

2

and negotiations to demonstrate the economic capability of a

3

development entity to fully perform the requirements of the

4

public-private transportation partnership agreement shall not

5

be subject to public inspection.

6

(2)  A proprietary public and a private development

7

entity may agree, in their discretion, to make public any

8

information described under paragraph (1) that would not

9

otherwise be subject to public inspection.

10

(3)  If a proprietary public entity terminates a public-

11

private transportation partnership agreement for default,

12

rejects a private entity on the grounds that the private

13

entity is not responsible or suspends or debars a development

14

entity, the private entity or development entity, as

15

appropriate, shall, upon written request, be provided with a

16

copy of the information contained in the file of the private

17

entity or development entity maintained by the proprietary

18

public entity under a contractor responsibility program.

19

(4)  The following information shall not be public:

20

(i)  Information relating to proprietary information,

21

trade secrets, patents or exclusive licenses,

22

architectural and engineering plans and information

23

relating to competitive marketing materials and

24

strategies.

25

(ii)  Security information, including risk prevention

26

plans, detection and countermeasures, emergency

27

management plans, security and surveillance plans,

28

equipment and usage protocols and countermeasures.

29

(iii)  Records considered nonpublic matters or

30

information by the Securities and Exchange Commission

- 60 -

 


1

under 17 CFR 200.80 (relating to commission records and

2

information).

3

(iv)  Any financial information deemed confidential

4

by the proprietary public entity upon a showing of good

5

cause by the offeror or development entity.

6

(v)  Records prepared or utilized to evaluate a

7

proposal.

8

§ 9113 9112.  Use of intellectual property.

<--

9

Unless otherwise agreed and except to the extent not

10

transferable by law, the department or a proprietary public

11

entity shall have the right to use all or a portion of a

12

submitted proposal, including the technologies, techniques,

13

methods, processes and information contained in the proposal.

14

Notice of nontransferability by law shall be given to the

15

department and the proprietary public entity in response to the

16

request for proposals.

17

§ 9114 9113.  Police powers and violations of law.

<--

18

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

19

private transportation project is a highway, bridge, tunnel

20

overpass or similar transportation facility for motor vehicles,

21

75 Pa.C.S. (relating to vehicles) and other laws of this

22

Commonwealth or, if applicable, any local jurisdiction shall be

23

the same as those applying to conduct on similar transportation

24

facilities in this Commonwealth or the local jurisdiction.

25

Punishment for offenses shall be prescribed by law for conduct

26

occurring on similar transportation facilities in this

27

Commonwealth or the local jurisdiction.

28

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

29

arrests for violations of law in this Commonwealth shall have

30

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

- 61 -

 


1

public-private transportation project as they have in their

2

respective areas of jurisdiction. The grant of authority under

3

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

4

garages and other improvements of a development entity to any

5

greater degree than the police power extends to any other

6

private offices, buildings, garages and other improvements.

7

§ 9115 9114.  Environmental and other authorizations.

<--

8

(a)  The Administrative Code of 1929.--Notwithstanding any

9

other provision of law, neither soliciting nor approving a

10

request for proposals, nor executing a public-private

11

transportation partnership agreement under this chapter shall

12

constitute the submission of a preliminary plan or design to the

13

department under section 2002(b) of the act of April 9, 1929

14

(P.L.177, No.175), known as The Administrative Code of 1929.

15

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

16

transportation partnership agreement may require that prior to

17

commencing any construction in connection with the development,

18

operation or financing of any public-private transportation

19

project if the agreement requires environmental authorizations

20

to be obtained, the development entity shall do any of the

21

following:

22

(1)  Secure all necessary environmental permits and

23

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

24

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

25

Environmental Remediation Standards Act, obtain the approval

26

of the Department of Environmental Protection.

27

(2)  Complete environmental remediation of the site on

28

which the public-private transportation project is to be

29

located, including acts required under any agreement entered

30

into with the Department of Environmental Protection for

- 62 -

 


1

remediation of the site under the Land Recycling and

2

Environmental Remediation Standards Act.

3

§ 9116 9115.  Taxation of development entity.

<--

4

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

5

received by a development entity pursuant to a public-private

6

transportation partnership agreement are subject to a tax

7

imposed by a political subdivision prior to the effective date

8

of this section, the revenues or user fees shall continue to be

9

subject to the tax and to future increases in the rate of the

10

tax.

11

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

12

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

13

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

14

development entity pursuant to a public-private transportation

15

partnership agreement.

16

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

17

partnership agreement, lease, concession, franchise or other

18

contract involving real property of a public-private

19

transportation project shall be subject to a Commonwealth or

20

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

21

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

22

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

23

Code of 1971, or a successor statute.

24

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

25

private transportation project shall be considered public

26

property and shall be exempt from ad valorem property taxes and

27

special assessments levied against property by the Commonwealth

28

or any political subdivision.

29

§ 9117 9116.  Power of eminent domain.

<--

30

The exercise of the power of eminent domain by any condemnor

- 63 -

 


1

to acquire property for public-private transportation project

2

purposes under a public-private transportation partnership

3

agreement shall be considered a taking for a public purpose and

4

not for a private purpose or for private enterprise.

5

§ 9118 9117.  Sovereign immunity.

<--

6

Under section 11 of Article 1 of the Constitution of

7

Pennsylvania, it is declared to be the intent of the General

8

Assembly that the Commonwealth, and its officials and employees

9

and a municipal authority, and its officials and employees,

10

acting within the scope of their duties, shall continue to enjoy

11

sovereign immunity and official immunity and remain immune from

12

suit except as provided in section 9119 9118 (relating to

<--

13

specific performance). A claim against the Commonwealth and its

14

officials and employees or municipal authority and its officials

15

and employees shall be brought only in such manner and in such

16

courts and in such cases as directed by the provision of section

17

9111(e) 9110(e) (relating to public-private transportation

<--

18

partnership agreement), 42 Pa.C.S. Ch. 85 (relating to matters

19

affecting government units), 62 Pa.C.S. Ch. 17 (relating to

20

legal and contractual remedies) or any procurement law

21

applicable to a municipal authority.

22

§ 9119 9118.  Specific performance.

<--

23

A proprietary public entity is authorized to agree that

24

specific performance shall be available to a development entity

25

as a remedy for a breach by the proprietary public entity of its

26

representations, covenants, warranties or other obligations

27

under the public-private transportation partnership agreement to

28

the extent set forth in the public-private transportation

29

partnership agreement.

30

§ 9120.  Applicability of other laws.

<--

- 64 -

 


1

All provisions of laws related to the development,

2

construction, operation or financing of a transportation project

3

in effect on the date the public-private transportation

4

partnership agreement is fully executed shall apply to a public-

5

private transportation partnership agreement entered into

6

between a proprietary public entity and a development entity.

7

The provisions shall include:

8

(1)  The act of May 1, 1913 (P.L.155, No.104), referred

9

to as the Separations Act.

10

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

11

as the Pennsylvania Prevailing Wage Act.

12

(3)  62 Pa.C.S. § 107 (relating to reciprocal

13

limitations).

14

(4)  62 Pa.C.S. § 531 (relating to debarment of

15

suspension).

16

(5)  62 Pa.C.S. § 541 (relating to approval of accounting

17

system).

18

(6)  62 Pa.C.S. § 551 (relating to right to inspect

19

plant).

20

(7)  62 Pa.C.S. § 552 (relating to right to audit

21

records).

22

(8)  62 Pa.C.S. § 563 (relating to retention of

23

procurement records).

24

(9)  62 Pa.C.S. § Ch. 17 (relating to legal and

25

contractual remedies).

26

§ 9119.  Applicability of other laws.

<--

27

(a)  General rule.--Except as provided under subsection (b),

28

all provisions of laws related to the development, construction,

29

operation or financing of a transportation project in effect on

30

the date the public-private transportation partnership agreement

- 65 -

 


1

is fully executed shall apply to a public-private transportation

2

partnership agreement entered into between a proprietary public

3

entity and a development entity. The provisions shall include:

4

(1)  The act of May 1, 1913 (P.L.155, No.104), referred

5

to as the Separations Act.

6

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

7

as the Pennsylvania Prevailing Wage Act.

8

(b)  Limitation.--The following apply:

9

(1)  If the public entity or the proprietary public

10

entity is a Commonwealth agency, 62 Pa.C.S (relating to

11

procurement) shall apply only to the extent provided under

12

paragraph (2).

13

(2)  The following shall apply if the public entity or

14

the proprietary public entity is a Commonwealth agency:

15

(i)  Section 107 (relating to reciprocal

16

limitations).

17

(ii)  Section 531 (relating to debarment or

18

suspension).

19

(iii)  Section 541 (relating to approval of

20

accounting system).

21

(iv)  Section 551 (relating to right to inspect

22

plant).

23

(v)  Section 552 (relating to right to audit

24

records).

25

(vi)  Section 563 (relating to retention of

26

procurement records).

27

(vii)  Chapter 17 (relating to legal and contractual

28

remedies).

29

§ 9121 9120.  Adverse interest.

<--

30

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

- 66 -

 


1

apply:

2

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

3

entity which submits a response to a request for proposals

4

under section 9110 9109 (relating to selection of development

<--

5

entities), a request for transportation projects under

6

section 9107 9106 (relating to solicitations for

<--

7

transportation projects) or an unsolicited proposal, and

8

which is also a State advisor or a State consultant for the

9

department or the Pennsylvania Turnpike Commission, shall not

10

be deemed to be in violation of the State Adverse Interest

11

Act while engaging in any of the following activities:

12

(i)  Preparing or submitting a response to a request

13

for proposals or transportation projects.

14

(ii)  Participating in any activity with the

15

department related to a request for proposals or

16

transportation projects.

17

(iii)  Negotiating and entering into any contract

18

lease or public-private transportation partnership

19

agreement which results from a request for proposals or

20

transportation projects.

21

(iv)  Engaging in any other action taken in

22

furtherance of the purposes of this chapter.

23

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

24

request for proposals or transportation projects or acts as a

25

consultant or an advisor to a private entity which submits a

26

response to a request for proposals or transportation

27

projects to the department shall be prohibited from

28

consulting or providing advice to the department on the

29

review or approval of the response to the request for

30

proposals or transportation projects as submitted.

- 67 -

 


1

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

2

request for proposals or transportation projects or acts as a

3

consultant or an advisor to a private entity which submits a

4

response to a request for proposals or transportation

5

projects to the board shall be prohibited from consulting or

6

providing advice to the department on the review or approval

7

of the response to the request for proposals or

8

transportation projects so submitted.

9

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

10

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

11

subsection unless the context clearly indicates otherwise:

12

"State advisor."  As defined in section 2(7) of the act of

13

July 19, 1957 (P.L.1017, No.451), known as the State Adverse

14

Interest Act.

15

"State consultant."  As defined in section 2(9) of the act of

16

July 19, 1957 (P.L.1017, No.451), known as the State Adverse

17

Interest Act.

18

§ 9122 9121.  Federal, State, local and private assistance.

<--

19

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

20

(1)  The department or a proprietary public entity may

21

accept from the United States or any of its agencies funds

22

that are available to the Commonwealth for carrying out this

23

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

24

loan guarantee or otherwise.

25

(2)  The department or a proprietary public entity is

26

authorized to assent to any Federal requirements, conditions

27

or terms of any Federal funding accepted by the department or

28

a proprietary public entity under this section.

29

(3)  The department or a proprietary public entity may

30

enter into agreements or other arrangements with the United

- 68 -

 


1

States or any of its agencies as may be necessary for

2

carrying out the purposes of this chapter.

3

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

4

proprietary public entity may accept from any source any grant,

5

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

6

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

7

for carrying out the purpose of this chapter.

8

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

9

between the development entity and a proprietary public entity,

10

any public-private transportation project may be financed, in

11

whole or in part, by contribution of any funds or property made

12

by a proprietary public entity, a development entity or an

13

affected jurisdiction.

14

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

15

public entity may combine Federal, State, local and private

16

funds to finance a public-private transportation project under

17

this chapter.

18

(e)  Itemization.--Pursuant to section 7(a)(4) of Article

19

VIII of the Constitution of Pennsylvania, a public-private

20

transportation project funded, in whole or in part, through the

21

issuance of debt where the credit of the Commonwealth is pledged

22

shall be itemized in a capital budget itemization act.

23

§ 9123 9122.  Public-Private Transportation Account.

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24

(a)  Establishment.--

25

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

26

separate account to be known as the Public-Private

27

Transportation Account.

28

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

29

purposes enumerated under subsection (c).

30

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

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1

(1)  The department shall deposit in the account the

2

following:

3

(i)  All money received by the department pursuant to

4

the terms of a public-private transportation partnership

5

agreement under which the department is the proprietary

6

public entity.

7

(ii)  Repayment of any loans from the account made

8

under this chapter.

9

(iii)  Subject to the provisions of any public-

10

private transportation partnership agreement under which

11

the department is the proprietary public entity, monetary

12

damages and other amounts for failure by a development

13

entity to comply with the terms of the public-private

14

transportation partnership agreement.

15

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

16

transportation partnership agreement under which the

17

department is the proprietary public entity, payments

18

made from any insurance proceeds or reserve funds or

19

performance or payment bonds in connection with a public-

20

private transportation project.

21

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

22

account.

23

(2)  The Secretary of the Budget shall establish any

24

restricted accounts within the account as the secretary deems

25

necessary for the proper administration of the account.

26

(3)  All money related to any public-private

27

transportation partnership agreement in which the department

28

is not the proprietary public entity shall not be held in the

29

account, but shall be held by the proprietary public entity

30

or its agent.

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1

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

2

continuously appropriated to the department for the following

3

purposes:

4

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

5

to repay the Federal funding agencies.

6

(2)  Paying all amounts designated by the department as

7

required for repayment or defeasance of outstanding bonds.

8

(3)  Paying costs of maintenance, operating and financing

9

of transportation facilities in this Commonwealth which are

10

available for use by the public, including the costs of

11

insurance or reserves against risks of contingencies.

12

(4)  Paying expenses incurred under or in connection with

13

any public-private transportation partnership agreement by

14

the department, including professional fees and expenses.

15

(5)  Paying the costs of the department relating to

16

performing and administering duties under this chapter.

17

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

18

costs incurred to perform its duties, including paying

19

professional fees and expenses.

20

(7)  Paying costs of any purpose authorized under this

21

chapter.

22

(d)  Amounts received.--The net proceeds received under a

23

public-private transportation partnership agreement shall be

24

available exclusively to provide funding for transportation

25

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

26

revenues from the public-private transportation project shall be

27

in accord with Federal or State law restricting or limiting the

28

use of revenue from the public-private transportation project

29

based on its public funding.

30

§ 9124 9123.  Pennsylvania Turnpike Commission.

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1

The Pennsylvania Turnpike Commission may not enter into a

2

public-private transportation partnership agreement in the

3

capacity of a proprietary public entity with respect to granting

4

substantial oversight and control over the Turnpike Mainline to

5

another entity unless specific authority is granted through an

6

act of law passed by the General Assembly. However, this shall

7

not restrict the Pennsylvania Turnpike Commission from entering

8

into a public-private transportation partnership agreement under

9

this chapter or under other statutes which does not involve

10

granting substantial oversight and control over the Turnpike

11

Mainline to another entity.

12

§ 9125 9124.  Regulations.

<--

13

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

14

of this chapter, the department is authorized to promulgate

15

regulations or publish guidelines that include the following:

16

(1)  The process for review of a request for proposals or

17

transportation projects or responses to requests for

18

proposals or transportation projects issued by a public

19

entity.

20

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

21

to competing responses to requests for proposals or

22

transportation projects.

23

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

24

for adequate review of and response to each stage of review

25

of a proposal or transportation project.

26

(4)  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, any regulation promulgated by the department

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1

under this chapter during the two years following the effective

2

date of this section shall be deemed temporary regulations which

3

shall expire no later than three years following the effective

4

date of this section or upon promulgation of final regulations.

5

The temporary regulations shall not be subject to any of the

6

following:

7

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

8

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

9

Documents Law.

10

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

11

the Regulatory Review Act.

12

Section 2.  Repeals are as follows:

13

(1)  The General Assembly declares that the repeal under

14

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

15

Pa.C.S. Ch. 91.

16

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

17

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

18

repealed insofar as it is inconsistent with the addition of

19

74 Pa.C.S. Ch. 91.

20

Section 3.  This act shall take effect as follows:

21

(1)  The addition of 74 Pa.C.S. §§ 9103, 9104, 9105, 9106

<--

22

and 9125 9102, 9103, 9104, 9105 and 9124 shall take effect

<--

23

immediately.

24

(2)  This section shall take effect immediately.

25

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

26

days.

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