THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY D. EVANS, SEPTEMBER 26, 2011

REFERRED TO COMMITTEE ON FINANCE, SEPTEMBER 26, 2011  

AN ACT

Amending Titles 72 (Taxation and Fiscal Affairs), 74

(Transportation) and 75 (Vehicles) of the Pennsylvania

Consolidated Statutes, in taxation and fiscal affairs,

providing for an oil company gross profits tax; in

sustainable mobility options, further providing for Public

Transportation Trust Fund, for application and approval

process and for asset improvement program; providing for

imposition and allocation of surcharges, for minimum

qualifications for governing board members, for best

practices for transit-oriented development and for

Legislative Budget and Finance Committee reviews; in

transportation, providing for public-private transportation

partnership; establishing the Public-Private Transportation

Account and the Public-Private Transportation Partnership

Board; in vehicles, further providing for various vehicle

fees and for the imposition of the oil company franchise tax

for highway maintenance and construction; providing for an

annual adjustment to fees; and making a related repeal.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Title 72 of the Pennsylvania Consolidated

Statutes is amended by adding parts to read:

PART I

PRELIMINARY PROVISIONS

(Reserved)

PART II

TAXES

Chapter

22.  Oil Company Gross Profits

CHAPTER 22

OIL COMPANY GROSS PROFITS

Sec.

2201.  Definitions.

2202.  Imposition of tax.

2203.  Reports and payment of tax.

2204.  Restricted revenue account.

2204.1.  Appropriations.

2205.  Procedure; enforcement; penalties.

2206.  Cost of tax and penalties.

2207.  Administration.

§ 2201.  Definitions.

The following words and phrases when used in this chapter

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

context clearly indicates otherwise:

"Account."  The Oil Company Gross Profits Tax Account

established in section 2204 (relating to restricted revenue

account).

"Apportioned gross profits."  The gross profits apportioned

to Pennsylvania by the apportionment fraction set forth in

section 2202(d) (relating to imposition of tax).

"Code."  The act of March 4, 1971 (P.L.6, No.2), known as the

Tax Reform Code of 1971.

"Department."  The Department of Revenue of the Commonwealth.

"Gross profits."  If an oil company files an income tax

return with the Federal Government, gross profits as set forth

on the return. If an oil company does not file an income tax

return with the Federal Government, gross profits, as defined

and calculated on the applicable Federal income tax return.

"Gross receipts."  All gross receipts of a business entity.

If an oil company files an income tax return with the Federal

Government, its gross receipts as set forth on the return. If an

oil company does not file an income tax return with the Federal

Government, gross receipts, as defined and calculated on the

applicable Federal income tax return.

"Oil company."  An entity that engages in the exploration,

drilling, importation, refining or wholesale distribution of

petroleum products.

"Petroleum products."  Any fractionated product of the

industrial processing of crude oil manufactured or refined or

used for the generation of power in an internal combustion

engine to propel motor vehicles of any kind or character or for

the generation of heat. Petroleum products include, but are not

limited to, gasoline, diesel fuel, kerosene, propane and any

other product of crude oil used for such purpose.

"Taxable year."  The taxable year which an oil company, or

any consolidated group with which an oil company participates in

the filing of consolidated returns, actually uses in reporting

taxable income to the Federal Government. The terms "annual

year," "fiscal year," "annual or fiscal year," "tax year" and

"tax period" shall be the same as the oil company's taxable year

as defined in this definition.

"Unitary business."  A single economic enterprise that is

made up either of separate parts of a single entity or of a

commonly controlled group of entities that are sufficiently

interdependent, integrated and interrelated through their

activities so as to provide a synergy and mutual benefit that

produces a sharing or exchange of value among them and a

significant flow of value to the separate parts.

"Wholesale distribution."  The making of one or more

nonretail sales of petroleum products.

§ 2202.  Imposition of tax.

(a)  Imposition.--An oil company shall pay an excise tax on

its apportioned gross profits for exercising, whether in its own

name or through any person, association, business trust,

corporation, joint venture, limited liability company, limited

partnership, partnership or other entity, any of the following

privileges:

(1)  Doing business within this Commonwealth.

(2)  Carrying out activities within this Commonwealth.

(3)  Having capital or property employed or used in this

Commonwealth.

(4)  Owning property in this Commonwealth.

(5)  Engaging in or transacting any activity in this

Commonwealth for the purpose of financial gain or profit.

(b)  Rate.--The annual rate of tax on gross profits imposed

by subsection (a) shall be 8% for calendar years or fiscal years

beginning after December 31, 2011.

(c)  Tax in lieu of corporate net income tax.--The tax

imposed by this chapter shall be in lieu of the tax imposed by

Article IV of the code.

(d)  Apportionment fraction.--If at least one oil company of

a unitary business that consists of oil companies transacts part

of its business outside Pennsylvania, the apportionment fraction

of an oil company is its Pennsylvania gross receipts divided by

total gross receipts of all oil companies of the unitary

business. Gross receipts from the sale of tangible personal

property are Pennsylvania gross receipts based on the sourcing

rule set forth in section 401(3)2(a)(16) of the code. All other

gross receipts are Pennsylvania gross receipts based on the

sourcing rule set forth in section 401(3)2(a)(17) of the code.

All transactions among oil companies of a unitary business are

eliminated in computing the numerator and the denominator of the

apportionment fraction of an oil company. If all oil companies

of a unitary business that consist of oil companies transact all

of their business within Pennsylvania, none of the oil companies

are entitled to apportion their gross profits.

§ 2203.  Reports and payment of tax.

(a)  Requirement.--Each oil company subject to tax under this

chapter is required to file a report of gross profits taxable

under this chapter and pay tax due as set forth in section 403

of the code.

(b)  Option.--

(1)  All oil companies of a unitary business that are

subject to tax under this chapter may elect to file a report

and pay tax on an aggregate basis.

(2)  The department shall prescribe a combined report for

reporting and paying tax on an aggregate basis.

(3)  The oil companies of a unitary business that are

subject to tax under this chapter and that make this election

shall designate an oil company of the unitary business that

is taxable under this chapter to act as an agent for all oil

companies of the unitary business. The agent shall file the

report permitted under this subsection under oath or

affirmation and pay the total tax due under this chapter for

all oil companies of a unitary business that are subject to

tax under this chapter. Each oil company of a unitary

business that is taxable under this chapter and makes the

election permitted under this subsection remains liable for

its tax due under this chapter.

§ 2204.  Restricted revenue account.

(a)  Establishment of account.--There is established a

restricted account in the General Fund to be known as the Oil

Company Gross Profits Tax Account. Except as provided in

subsection (c), money paid into the account shall be

appropriated annually for transportation purposes.

(b)  Deposit.--The tax collected pursuant to this chapter

shall be deposited and paid into the account.

(c)  Transfer.--

(1)  On or about April 1, 2012:

(i)  The sum of $1,000,000, or as much thereof as may

be necessary, is appropriated to the Office of Attorney

General for the fiscal year July 1, 2011, to June 30,

2012, from the account to carry out the provisions of

section 2206(c) (relating to cost of tax and penalties).

(ii)  A payment of $17,500,000 shall be transferred

from the account to the General Fund, 80% of the money

remaining in the account shall be transferred to the

Public Transportation Trust Fund established in 74

Pa.C.S. § 1506 (relating to fund) and the remainder to

the Motor License Fund.

(2)  On the first business day of July 2012, October

2012, January 2013 and each first business day of July,

October and January thereafter, 80% of the money in the

account shall be transferred to the Public Transportation

Trust Fund established in 74 Pa.C.S. § 1506 and the remainder

to the Motor License Fund.

(3)  On each first business day of April following the

transfer in paragraph (1), $35,000,000 shall be transferred

from the account to the General Fund, 80% of the money

remaining in the account shall be transferred to the Public

Transportation Trust Fund established in 74 Pa.C.S. § 1506

and the remainder to the Motor License Fund.

(d)  Restriction on use of transferred funds.--Funds

transferred to the Public Transportation Trust Fund established

in 74 Pa.C.S. § 1506 shall not be subject to the limitations

contained in 74 Pa.C.S. § 1507(c) (relating to application and

approval process) but shall be used only for activities set

forth under the financial waiver allowing the funds to be used

for a different purpose. The regulations of the Department of

Transportation shall describe circumstances under which it will

consider waiver requests and shall set forth all information to

be included in a waiver request. The waiver request shall

include a plan of corrective action to demonstrate that the

award recipient does not have an ongoing need to use financial

assistance funds for activities other than those for which funds

were originally awarded, and the duration of the waiver cannot

exceed the duration of the plan of corrective action. The

Department of Transportation shall monitor the implementation of

the plan of corrective action. If the plan of corrective action

is not implemented by the local transportation organization, as

defined in 74 Pa.C.S. § 1503 (relating to definitions), the

Department of Transportation shall rescind the waiver approval.

§ 2204.1.  Appropriations.

(a)  Roads and bridges.--All money transferred to the Motor

License Fund under section 2204 (relating to restricted revenue

account) is appropriated to the Department of Transportation to

be allocated as follows:

(1)  Eighty-seven percent to be used for State roads and

bridges.

(2)  Eleven percent for municipal roads and bridges

distributed to municipalities pursuant to the act of June 1,

1956 (1955 P.L.1944, No.655), referred to as the Liquid Fuels

Tax Municipal Allocation Law.

(3)  Two percent for county roads and bridges distributed

to counties as follows:

(i)  The distribution shall be in the ratio of:

(A)  the square footage of deck area of a

county's county-owned bridges; to

(B)  the total square footage of deck area of

county-owned bridges throughout this Commonwealth.

(ii)  The amount of square footage under subparagraph

(i) shall be that reported as part of the National Bridge

Inspection Standards Program.

(b)  Financial assistance.--All money transferred to the

Public Transportation Trust Fund under section 2204 is

appropriated to the Department of Transportation to be allocated

as follows:

(1)  Eighty-five and eight-tenths percent for financial

assistance under 74 Pa.C.S. § 1514 (relating to asset

improvement program).

(2)  Fourteen and two-tenths percent for financial

assistance under 74 Pa.C.S. § 1513 (relating to operating

program).

§ 2205.  Procedure; enforcement; penalties.

(a)  Applicability of code.--Except as set forth in

subsection (b), Parts III, IV, V, VI and VII of Article IV of

the code shall apply to the tax imposed under this chapter.

(b)  Inapplicability.--Section 404 of the code shall not

apply to the tax imposed by this chapter.

(c)  Underpayment.--In addition to any other penalty provided

by law, if the amount of any estimated payment of tax due or

payment of tax due is underpaid, a penalty shall be imposed in

the amount of 5% of the underpayment per month for the period of

the underpayment, up to a maximum of 25% of the underpayment.

(d)  Failure to file.--In addition to any other penalty

provided by law, if an oil company fails to file the report

required by section 2203 (relating to reports and payment of

tax) within 270 days of the original due date of the report, a

penalty of $500 shall be imposed on the business entity.

§ 2206.  Cost of tax and penalties.

(a)  Cost.--The cost of the tax imposed in section 2202

(relating to imposition of tax), or any portion of the tax,

shall not be added to, separately stated with or included in the

purchase price charged to a purchaser of petroleum products.

(b)  Penalties.--An individual who willfully violates

subsection (a) commits a misdemeanor of the third degree. In

addition, the seller of the petroleum products shall be required

to pay a penalty equal to the amount added to, separately stated

with or included with the purchase price charged to the

purchaser.

(c)  Attorney General.--In addition to the authority

conferred upon the Attorney General by the act of October 15,

1980 (P.L.950, No.164), known as the Commonwealth Attorneys Act,

the Attorney General shall have the authority to investigate and

to institute criminal proceedings for any violation of this

section. No persons charged with a violation of this section by

the Attorney General shall have standing to challenge the

authority of the Attorney General to investigate or prosecute

the case. If a challenge is made, the challenge shall be

dismissed, and no relief shall be made available in the courts

of this Commonwealth to the person making the challenge.

§ 2207.  Administration.

(a)  Separate nature.--Tax under this chapter shall be

separately reported, determined and treated.

(b)  Estimation.--A taxpayer under this chapter shall

estimate the amount of the tax under section 2202 (relating to

imposition of tax).

(c)  Payment.--

(1)  A taxpayer shall pay the estimated tax in a single

installment by the 15th day of the third month of the taxable

year.

(2)  After payment under paragraph (1), the remaining

portion of the tax due under this chapter shall be paid on

the date the report under section 2203 (relating to reports

and payment of tax) is required to be filed, without

reference to an extension of time for filing.

Section 2.  Title 74 is amended by adding a section to read:

§ 105.  Statement of policy.

In the interest of protecting existing transportation

infrastructure and preserving land as a resource, the Department

of Transportation shall give higher consideration to

maintenance, repair and improvement to existing transportation

infrastructure before consideration of capital projects that

expand the size and scope of the infrastructure.

Section 3.  Section 1506 of Title 74 is amended by adding a

subsection to read:

§ 1506.  Fund.

* * *

(f)  Availability of funds.--Funds not expended under this

section in the fiscal year in which they were made available

shall not lapse and shall be available for use pursuant to this

section in the next four succeeding fiscal years.

Section 4.  Section 1507(a) and 1514(e) of Title 74 are

amended by adding paragraphs to read:

§ 1507.  Application and approval process.

(a)  Application.--An eligible applicant that wishes to

receive financial assistance under this chapter shall submit a

written application to the department on a form developed by the

department, which shall include the following:

* * *

(6.1)  A statement of policy outlining basic principles

for adjustment in fare revenue growth to meet the rate of

inflation.

* * *

§ 1514.  Asset improvement program.

* * *

(e)  Priorities.--The award of financial assistance under

this section shall be subject to the following set of priorities

in descending order of significance unless a compelling return

on investment analysis for a project in a lower category is

provided to and approved by the department:

* * *

(4)  Request for funds to support local transportation

organizations merger and consolidation incentives. Capital

projects that are needed to support local transportation

organizations that have agreed to merge and consolidate

operations and administration to achieve cost and service

efficiencies. The efficiencies must be identified in a merger

and consolidation plan, and must include the expected dollar

savings that will result from the merger and consolidation.

* * *

Section 5.  Title 74 is amended by adding sections to read:

§ 1521.  Imposition and allocation of surcharges.

(a)  Surcharge.--The following surcharges are hereby imposed,

the proceeds of which shall be deposited in the Public

Transportation Trust Fund established under section 1506

(relating to fund) and are hereby appropriated for the program

specified in section 1514 (relating to asset improvement

program):

(1)  In addition to the fee established by 75 Pa.C.S. §

1951(c) (relating to driver's license and learner's permit),

a surcharge of $13 is imposed on all issuances of an

identification card. In addition to the fee established by 75

Pa.C.S. § 1951(d), a surcharge of $2 is imposed on all

issuances of a replacement identification card.

(2)  In addition to the fee established by 75 Pa.C.S. §

1952 (relating to certificate of title), a surcharge of $8.50

is imposed on all issuances of certificate of title.

(3)  In addition to the fee established by 75 Pa.C.S. §

1953 (relating to security interest), a surcharge of $9 is

imposed on all recordings or changes to the amount of a

security interest.

(4)  In addition to the fee established by 75 Pa.C.S. §

1955(a) (relating to information concerning drivers and

vehicles), a surcharge of $13 is imposed on copies of written

or electronic information relating to driver, registration,

title or security interest.

(5)  In addition to the fee established by 75 Pa.C.S. §

1956 (relating to certified copies of records), a surcharge

of $31 is imposed on all certified copies of records.

(6)  In addition to the fee established by 75 Pa.C.S. §

1958 (relating to certificate of inspection), a surcharge of

$3 is imposed on all annual certificates of inspection and $2

on semiannual certificates of inspection.

(b)  Increase.--For calender year 2013 and each calendar year

thereafter, the department shall increase the surcharges under

subsection (a) by the lesser of the following:

(1)  The rate of inflation calculated using the Consumer

Price Index for the most recent available data over a 12-

month period.

(2)  One and one-half percent.

(c)  Publication.--The department shall publish notice of the

surcharge under subsection (b) and of the new total cost at

least 90 days prior to the beginning of each calendar year.

§ 1522.  Minimum qualifications for governing board members.

Minimum qualifications for governing board members for a

local transportation organization may include the following:

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

mature judgment and broad experience.

(2)  Having professional background expertise or

substantial experience in one or more of the following areas:

(i)  Transportation.

(ii)  Finance.

(iii)  Law.

(iv)  Land use and public planning.

(v)  Human services.

(3)  Demonstrating an interest in public transportation

through support of the organization's mission, values and

vision.

§ 1523.  Best practices for transit oriented development.

The department shall develop a manual on the best practices

for transit oriented development and make the manual available

to local transportation organizations and local governments.

§ 1524.  Review of human service transportation coordination.

The Legislative Budget and Finance Committee shall do all of

the following:

(1)  Review the specific findings and recommendations of

the Human Service Transportation Coordination Study of 2009.

(2)  Evaluate potential strategies for a unified human

services transportation program management that may include

use of memorandums of understanding among agencies, joint

program offices or other strategies that promote

consolidation.

(3)  Review the potential for consolidation, specifically

considering matters relating to agency administration,

personnel, customer service, unified human service

transportation planning, cost implications and any other

factors deemed significant.

(4)  Determine whether department or agency consolidation

is a feasible solution to improve the coordination of

Commonwealth human services transportation management and

identify the specific legislative and policy actions, if

necessary, required to implement such a plan.

(5)  Report all findings, conclusions and recommendations

to the Senate and the House of Representatives within one

year of the effective date of this section.

§ 1525.  Review of existing transportation entities.

The following shall apply:

(1)  The Legislative Budget and Finance Committee shall

undertake a review of the existing transportation entities in

this Commonwealth which shall include consultation with

representatives from transportation entities in this

Commonwealth.

(2)  The Legislative Budget and Finance Committee shall

identify states for comparison with this Commonwealth, which

may include the regional transportation authorities in the

states of California, Colorado, Florida, Georgia, Oregon and

Texas, for the purpose of reviewing existing practices and

functions and their applicability to Pennsylvania.

(3)  The Legislative Budget and Finance Committee shall

identify states for comparison with this Commonwealth, which

may include the states of Arkansas, California, Georgia and

Washington, for the purpose of reviewing regional

transportation authorities that have enabled a taxing

authority, or proposed to do so, for the purpose of

generating revenue for transit and local transportation

funding.

(4)  The Legislative Budget and Finance Committee shall

complete a study and cost analysis of the implementation and

continued administration of regional multimodal

transportation authorities in this Commonwealth.

(5)  The Legislative Budget and Finance Committee shall

identify and apply for government grants or private funding,

or both, for a study germane to this issue.

(6)  The Legislative Budget and Finance Committee shall

do all of the following:

(i)  Evaluate the powers and duties of each

individual authority, including limitations of the

individual authority to plan, design, finance, construct,

operate and maintain existing transportation facilities

and to provide a safe, adequate and efficient surface

transportation network for this Commonwealth.

(ii)  Address agency revenue sources, governance,

coordination of work plans and coordination with local

comprehensive plans for all transportation facilities and

infrastructure development within this Commonwealth.

(iii)  Recommend an implementation plan, which may

include the formation of one or several regional

transportation networks, or other implementation

approaches to provide a comprehensive multimodal regional

transportation network.

(iv)  Recommend and itemize any legislative action,

if necessary, to implement regional multimodal

transportation authorities in this Commonwealth.

(7)  The Legislative Budget and Finance Committee shall

report all findings, conclusions and recommendations to the

Senate and the House of Representatives within one year of

the effective date of this section.

§ 1526.  Review of State highway maintenance formula.

The Legislative Budget and Finance Committee shall review the

State highway maintenance formula set forth in 75 Pa.C.S. Ch. 91

(relating to State highway maintenance) and evaluate how well,

and the fairness by which, the formula allocates resources among

the county offices of the department in comparison to the State

highway maintenance needs of those counties. The committee shall

report its findings, conclusions and recommendations to the

Senate and the House of Representatives within one year of the

effective date of this section.

Section 6.  Title 74 is amended by adding a part to read:

PART V

TRANSPORTATION INFRASTRUCTURE

Chapter

91.  Public-Private Transportation Partnership

CHAPTER 91

PUBLIC-PRIVATE TRANSPORTATION PARTNERSHIP

Sec.

9101.  Scope of chapter.

9102.  Findings and declaration of policy.

9103.  Definitions.

9104.  Regulations.

9105.  Project delivery methods.

9106.  Approval.

9107.  Public-private transportation partnership agreement.

9108.  Police powers and violations of law.

9109.  Environmental and other authorizations.

9110.  Taxation of authorized development entity or entities.

9111.  Power of eminent domain.

9112.  Sovereign immunity.

9113.  Amounts payable by proprietary public entities and

specific performance.

9114.  Procurement.

9115.  Additional procurement provisions.

9116.  Adverse interest.

9117.  Application of chapter.

9118.  Federal, Commonwealth, local and private assistance.

9119.  Public-Private Transportation Account.

9120.  Public-Private Transportation Partnership Board.

9121.  Duties and powers of board.

9122.  Role of department in operation of board.

9123.  Prohibition.

§ 9101.  Scope of chapter.

This chapter relates to public-private transportation

partnerships.

§ 9102.  Findings and declaration of policy.

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

Assembly finds and declares as follows:

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

increase capacity, improve safety and enhance economic

efficiency of transportation facilities throughout this

Commonwealth.

(2)  The Commonwealth has limited resources to fund the

maintenance and expansion of its transportation facilities.

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

addressed, alternative funding mechanisms and strategies must

be developed to supplement existing public revenue sources.

(4)  The imposition of user fees establishes an

additional funding source for transportation infrastructure

needs that spreads the costs across those who most benefit

from the Commonwealth's system of roads, highways and

bridges.

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

operation, maintenance, construction and improvement of toll

roads is a proprietary function which may be delegated to a

private entity consistent with section 31 of Article 3 of the

Constitution of Pennsylvania.

(6)  Authorizing public entities to enter into

transportation development agreements with private entities

and other public entities for the development, operation and

financing of transportation facilities can result in greater

availability of transportation facilities to the public in a

timely, efficient and less costly fashion, thereby serving

the public safety and welfare.

(7)  Assuring that qualifying transportation projects are

developed, operated and financed in a cost-effective manner

is an important factor in promoting the health, safety and

welfare of the citizens of this Commonwealth.

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

(1)  To encourage private entities to invest in this

Commonwealth by participating in the development, operation

and/or financing of transportation facilities.

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

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

chapter to provide public entities and private entities with

the flexibility in contracting with each other for and in

providing of the public services that are the subject of this

title.

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

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

chapter to make clear that public entities are authorized and

empowered to contract with private entities for and in

providing of the public services that are the subject of this

title.

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

the charging of user fees consistent with the goals under

subsection (a) and paragraph (1).

§ 9103.  Definitions.

The following words and phrases when used in this chapter

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

context clearly indicates otherwise:

"Account."  The Public-Private Transportation Account.

"Board."  The Public-Private Transportation Partnership

Board.

"Department."  The Department of Transportation of the

Commonwealth.

"Development entity."  Any of the following:

(1)  A private entity.

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

entity.

(3)  A partnership of entities proposing, bidding or

responding to a solicitation by the Department of

Transportation or a proprietary public entity.

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

that is capable of charging an account holder for the prescribed

toll by electronic transmission of information, including E-Z

Pass, open road tolling, video tolling or other similar

structural or technological enhancements pertaining to tolling.

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

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

this Commonwealth or a unit of government.

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

eligible transportation facility that is subject to a public-

private transportation partnership agreement.

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

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

term includes the Department of Transportation and the

Pennsylvania Turnpike Commission. The term does not include the

General Assembly and its members, officers or agencies or any

court or other office or agency of the Pennsylvania judicial

system.

"Public-private transportation partnership agreement."  A

binding agreement for a public-private transportation project

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

of a transportation facility by the Department of Transportation

or a proprietary public entity to a development entity for a

definite term during which the development entity will provide

transportation-related services in return for the right to

receive all or a portion of the revenue of the transportation

facility, or other payment, such as the following

transportation-related services:

(1)  Operations and maintenance.

(2)  Revenue collection.

(3)  User fee collection or enforcement.

(4)  Design.

(5)  Construction.

(6)  Development and other activities with respect to

existing or new transportation facilities that enhance

traffic throughput, reduce congestion, improve safety or

otherwise manage or improve a transportation facility.

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

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

transport.

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

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

"Solicitation."  The process by which the Department of

Transportation or a proprietary public entity may elect to

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

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

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

"Transportation facility."  A proposed or existing road,

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

transportation facility, vehicle parking facility, port

facility, multimodal transportation facility, airport, station,

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

transportation of persons, animals or goods, together with any

buildings, structures, parking areas, appurtenances and other

property needed to operate the transportation facility. The term

includes any improvements or substantial enhancements or

modifications to an existing transportation facility.

"Unit of government."  Any of the following:

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

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

entity, port or other public corporation organized and

existing under statutory law, voter-approved charter or

initiative.

(3)  An intergovernmental entity.

§ 9104.  Regulations.

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

of this chapter, the department may promulgate regulations or

publish guidelines that include any of the following:

(1)  The process for review of request for solicitations

or responses to requests for solicitations issued by the

department or a proprietary public entity.

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

to competing responses to requests for solicitations.

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

for adequate review of and response to each state of review

of a solicitation.

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

the department and the board by public entities for approval

of a public-private transportation project.

(5)  Any other provisions which are required under this

chapter or which the department determines are appropriate

for implementation of this chapter.

(b)  Temporary regulations.--Notwithstanding any other

provision of law and in order to facilitate the prompt

implementation of this chapter, any regulation promulgated by

the department under this chapter during the two years following

the effective date of this section shall be deemed temporary

regulations which shall expire no later than three years

following the effective date of this section or upon

promulgation of final regulations. The temporary regulations

shall not be subject to any of the following:

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

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

Documents Law.

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

the Regulatory Review Act.

§ 9105.  Project delivery methods.

The department shall provide for the development or operation

of eligible facilities using a variety of project delivery

methods and forms of agreement. The methods may include:

(1)  Predevelopment agreements leading to other

implementing agreements.

(2)  A design-build agreement.

(3)  A design-build-maintain agreement.

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

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

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

(7)  A concession providing for the private entity to

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

transportation facility.

(8)  Any other project delivery method or agreement or

combination of methods or agreements that the department

determines will serve the public interest.

§ 9106.  Approval.

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

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

an agreement with a development entity for the purpose of

forming a public-private transportation partnership in

accordance with this chapter.

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

entity may procure services under this chapter using any or all

of the following:

(1)  Request for project proposals in which is described

a class of transportation facilities or a geographic area in

which development entities are invited to submit proposals to

develop transportation facilities.

(2)  Solicitations using requests for qualifications,

short-listing of qualified proposers, requests for proposals,

negotiations, best and final offers or other procurement

procedures.

(3)  Procurements seeking development and finance plans

most suitable for the project.

(4)  Best value selection procurements based on price,

financial proposals, or both, or other factors determined to

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

Commonwealth or the proprietary public entity.

(5)  Other procedures that the department determines may

further the implementation of this chapter.

(6)  Unsolicited proposals as recommended by the board if

the board, in consultation with the department, determines

there is sufficient merit to pursue the proposal, a

reasonable opportunity for other entities to submit competing

proposals for consideration and a possible contract award.

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

must give adequate public notice of any request for

qualifications, request for proposal or other solicitation in a

reasonable amount of time prior to any deadline date for

submission. The solicitation shall generally set forth the

factors that will be evaluated and the manner in which responses

will be evaluated.

(d)  Costs.--

(1)  The department and a proprietary public entity and

their respective advisers shall not be responsible for any

costs or damages incurred by a private party in connection

with any requests for qualifications, requests for proposals

or other solicitations.

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

in its discretion, elect to pay a stipend to unsuccessful

offerors who have submitted responsive proposals, bids and

other materials in response to a request for proposals or

other solicitation. Stipends may be made available solely to

defray the costs of proposal or response preparation. The

availability of a stipend and the conditions necessary to

qualify for payment shall be included in the request for

proposals or other solicitation.

(3)  The department or a proprietary public entity may

charge and retain an administrative fee for the evaluation of

a public-private transportation partnership proposal as

recommended by the board.

(e)  Modification and termination rights.--

(1)  The department or a proprietary public entity may

modify a solicitation request if it determines the

modification to be in the best interest of the Commonwealth

or proprietary public entity.

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

prior to the time a public-private transportation partnership

agreement is executed, if the department or the proprietary

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

action is in the best interest of the Commonwealth or the

proprietary public entity. The reasons for cancellation shall

be made a part of the file.

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

solicitation request may be rejected at any time prior to the

time a public-private transportation partnership agreement is

executed, if the department or the proprietary public entity

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

the best interest of the Commonwealth or the proprietary

public entity. The reasons for rejection shall be made part

of the file.

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

for solicitation shall be final and unreviewable.

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

way shall obligate the department or a proprietary public

entity to enter into a public-private transportation

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

(f)  Selection criteria, evaluation and award.--

(1)  In evaluating proposals, the department or a

proprietary public entity shall obtain the best value for the

Commonwealth or the proprietary public entity and may accord

relative weight to factors such as cost, financial

commitment, innovative financing, technical, scientific,

technological or socioeconomic merit, financial strength and

viability and other factors as deemed appropriate.

(2)  The department or a proprietary public entity may

conduct discussions with development entities to assure

understanding of and responsiveness to the requirements of a

request for qualifications.

(3)  The department or a proprietary public entity shall

conduct a public and competitive process to award a public-

private transportation partnership agreement.

(4)  The department or a proprietary public entity shall

accept for contract negotiation the responsive and

responsible development entity whose proposal is determined

in writing to be the most advantageous to the Commonwealth or

the proprietary public entity, taking into consideration

price and all evaluation factors.

(5)  The department or a proprietary public entity may

require that any bid or proposal submitted to enter into a

public-private transportation partnership agreement be

accompanied by security in the form of cash, letters of

credit or other financial security acceptable to the

department or the proprietary public entity.

(6)  The department or a proprietary public entity may

retain financial, technical, legal and other consultants and

experts to assist in the evaluation, negotiation and

development of eligible facilities under this chapter.

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

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

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

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

technologies, techniques, methods, processes and information

contained in the response. Notice of nontransferability by law

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

qualifications.

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

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

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

party to a public-private transportation partnership

agreement, the identity of the development entity selected,

the contents of the response of the development entity to the

request for qualifications, the final bid or proposal

submitted by the development entity and the form of the

public-private transportation agreement shall be made public.

Any financial information of a development entity that was

requested in a request for qualifications or a solicitation

to demonstrate the economic capability of a development

entity to fully perform the requirements of the public-

private transportation partnership agreement and which is

contained in a response to a request for qualifications shall

not be subject to public inspection.

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

in its discretion, make public any information described

under paragraph (1) that would not otherwise be subject to

public inspection.

(3)  If the department or a proprietary public entity

terminates a public-private transportation partnership

agreement for default, rejects a development entity or a

person on the grounds that the development entity is not

responsible or suspends or debars a development entity or a

person, the development entity or person shall, upon written

request, be provided with a copy of the information contained

in the file of the development entity or person maintained by

the department, the Office of the Budget and the Department

of General Services or a proprietary public entity under a

contractor responsibility program.

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

or retained by the department or a proprietary public entity

or their employees, consultants or agents in connection with

the evaluation of requests for qualifications shall not

constitute a public record subject to public inspection under

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

department or the proprietary public entity, the inspection

would cause substantial competitive harm to the entity or

person from whom the information was received.

(i)  Diversity.--

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

that the department and proprietary public entities promote

and ensure diversity in all aspects of development and

operation of a public-private transportation project

authorized under this chapter. The department and proprietary

public entities shall work to enhance the representation of

diverse groups in the development and operation by private

entities of any public-private transportation project through

the participation of business enterprises utilized by

development entities and through the provision of goods and

services utilized by development entities in the development

and operation of any public-private transportation project

authorized under this chapter.

(2)  The department is authorized to investigate and

conduct periodic studies to ascertain whether effective and

meaningful action has been taken or will be taken to enhance

the representation of diverse groups in the development and

operation by development entities of any public-private

transportation project in this Commonwealth through the

participation of business enterprises utilized by development 

entities in the development and operating of any public-

private transportation project under this chapter and through

the provision of goods and services utilized by development 

entities in the development and operation of any public-

private transportation project and through employment

opportunities.

§ 9107.  Public-private transportation partnership agreement.

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

partnership agreement shall include the following provisions:

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

leasing, acquisition or interest in, financing, installation,

construction, reconstruction, replacement, expansion,

operation, maintenance, improvement, equipping, modification,

expansion, enlargement, management, running, control and

operation of the transportation facility.

(2)  The term of the public-private transportation

partnership agreement.

(3)  The type of property interest or other relationship

the development entity will have in or with respect to the

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

property interests that may be required.

(4)  Authorization for the department and the proprietary

public entity, or their authorized representatives, to

inspect all assets and properties of the transportation

facility and all books and records of the development entity

relating to the eligible transportation facility to review

the development entity's performance under the public-private

transportation partnership agreement.

(5)  Grounds for termination of the public-private

transportation partnership agreement by the parties.

(6)  Procedures for amendment of the public-private

transportation partnership agreement.

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

breach, default or delay.

(8)  Requirements for a private development entity to

provide performance and payment bonds, parent company

guarantees, letters of credit or other acceptable forms of

security in an amount acceptable to the proprietary public

entity.

(9)  A requirement that the transportation facility

acquired or constructed is public property that is leased to

the development entity and belongs to the proprietary public

entity.

(10)  Standards for construction, maintenance and

operation of the transportation facility if the activities

are to be performed by the development entity.

(11)  Standards for capital improvement or modification

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

development entity.

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

be made by the proprietary public entity to the development

entity, including availability payments, performance-based

payment and payments of money and revenue-sharing with the

development entity.

(13)  Standards relating to how the parties will allocate

and share management of the risks of the project.

(14)  Standards relating to how the parties will allocate

costs of development of the project, including any cost

overruns.

(15)  Standards relating to damages to be assessed for

nonperformance, specifying remedies available to the parties

and dispute resolution procedures.

(16)  Standards relating to performance criteria and

incentives.

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

private transportation partnership agreement, the

transportation facility must be in a state of proper

maintenance and repair and shall be returned to the

proprietary public entity in satisfactory condition at no

further cost to the proprietary public entity.

(18)  Provisions for law enforcement of the public

transportation facility.

(19)  An obligation of the private entity to offer

employment to any employee of the department or proprietary

public entity who would lose employment due to the execution

of the public-private partnership agreement and who is in

good standing at the time of execution of the partnership

agreement, including the following:

(i)  Salary, retirement, health and welfare and

benefits which are substantially identical to the

benefits received by the employees immediately prior to

the execution of the partnership agreement.

(ii)  Measures to protect individual employees to the

greatest degree possible against a worsening of their

positions related to employment.

(iii)  Assurances of priority of reemployment of

employees.

(iv)  Paid training or retraining programs.

(20)  Other terms and provisions as required under this

chapter.

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

the private entity and the department or the proprietary

public entity.

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

enter into a public-private transportation partnership agreement

with any development entity that includes the provisions under

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

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

the department from entering into a partnership agreement with

another Commonwealth agency for purposes of forming a

transportation partnership in accordance with this chapter.

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

prohibit any propriety public entity from entering into a

public-private transportation partnership agreement with one or

more public entities for purposes of forming a transportation

partnership in accordance with this chapter.

(e)  Environmental costs.--

(1)  The department or any other proprietary public

entity may provide in a public-private transportation

partnership agreement that it will pay or reimburse, on terms

that it deems appropriate, the development entity for actual

costs associated with necessary remediation, including

investigation activities, for existing environmental

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

property associated with a transportation facility as of the

date the development entity assumes responsibility for the

transportation facility. If provision is made under this

paragraph, the public-private transportation partnership

agreement shall require that the proprietary public entity be

given:

(i)  Prompt notice of any claim against the third

party pertaining to the contaminants.

(ii)  The right to elect to undertake the necessary

remediation.

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

response to any claim.

(iv)  The right of prior approval before the

development entity may settle any claim.

(2)  No payment by the department or any other

proprietary public entity under this section may be for

anything other than, or extend beyond, actual losses,

liabilities, damages, penalties, charges, costs and expenses

incurred by a private entity to remediate the environmental

contamination on, under or emanating from the real property

associated with the transportation facility as of the date

the development entity assumes responsibility for the

transportation facility.

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

will be collected for use of the transportation facility and the

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

private transportation partnership agreement. If a user fee is

proposed as part of the public-private transportation

partnership project, the department or a proprietary public

entity shall include provisions in the agreement that authorize

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

including provisions that:

(1)  Specify technology to be used in the transportation

facility.

(2)  Establish circumstances under which the department

or the proprietary public entity may receive a share of

revenues from the charges.

(3)  Govern the enforcement of electronic tolls,

including provisions for use of available technology.

(4)  Establish payment collection standards, including

provisions for enforcement of nonpayment and penalties.

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

the prescribed toll or user fee at any location on a

transportation facility where tolls or user fees are

collected by means of an electronic or other automated or

remote form of collection, the collection provisions of

section 8117 (relating to electronic toll collection) shall

apply except that the private entity shall possess all of the

rights, roles, limitations and responsibilities of the

Pennsylvania Turnpike Commission.

(g)  Amounts received under public-private transportation

partnership agreement.--The net proceeds received by the

department or the proprietary public entity under a public-

private transportation partnership agreement shall be available

exclusively to provide funding for transportation needs in this

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

transportation facility shall comply with Federal or State law