PRINTER'S NO.  336

  

THE GENERAL ASSEMBLY OF PENNSYLVANIA

  

SENATE BILL

 

No.

344

Session of

2011

  

  

INTRODUCED BY RAFFERTY, SCARNATI, PILEGGI, D. WHITE, YAW, ORIE, ERICKSON, BAKER, FONTANA, PIPPY, BRUBAKER, ALLOWAY, BOSCOLA, WAUGH, MENSCH, EICHELBERGER, GORDNER, M. WHITE AND EARLL, FEBRUARY 1, 2011

  

  

REFERRED TO TRANSPORTATION, FEBRUARY 1, 2011  

  

  

  

AN ACT

  

1

Amending Title 74 (Transportation) of the Pennsylvania

2

Consolidated Statutes, providing for public-private

3

transportation partnerships; and making a related repeal.

4

The General Assembly of the Commonwealth of Pennsylvania

5

hereby enacts as follows:

6

Section 1.  Title 74 of the Pennsylvania Consolidated

7

Statutes is amended by adding a part to read:

8

PART V

9

TRANSPORTATION INFRASTRUCTURE

10

Chapter

11

91.  Public-Private Transportation Partnership

12

CHAPTER 91

13

PUBLIC-PRIVATE TRANSPORTATION PARTNERSHIP

14

Sec.

15

9101.  Scope of chapter.

16

9102.  Findings and declaration of policy.

17

9103.  Definitions.

 


1

9104.  Regulations.

2

9105.  Project delivery methods.

3

9106.  Approval.

4

9107.  Public-private transportation partnership agreement.

5

9108.  Police powers and violations of law.

6

9109.  Environmental and other authorizations.

7

9110.  Taxation of authorized development entity or entities.

8

9111.  Power of eminent domain.

9

9112.  Sovereign immunity.

10

9113.  Amounts payable by proprietary public entities and

11

specific performance.

12

9114.  Design-build development and Separations Act.

13

9115.  Additional procurement provisions.

14

9116.  Adverse interest.

15

9117.  Application of chapter.

16

9118.  Federal, Commonwealth, local and private assistance.

17

9119.  Public-Private Transportation Account.

18

9120.  Public-Private Transportation Partnership Board.

19

9121.  Duties and powers of board.

20

9122.  Role of department in operation of board.

21

§ 9101.  Scope of chapter.

22

This chapter relates to public-private transportation

23

partnerships.

24

§ 9102.  Findings and declaration of policy.

25

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

26

Assembly finds, determines and declares as follows:

27

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

28

increase capacity, improve safety and enhance economic

29

efficiency of transportation facilities throughout this

30

Commonwealth.

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1

(2)  The Commonwealth has limited resources to fund the

2

maintenance and expansion of its transportation facilities.

3

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

4

addressed, alternative funding mechanisms and strategies must

5

be developed to supplement existing public revenue sources.

6

(4)  The imposition of user fees establishes an

7

additional funding source for transportation infrastructure

8

needs that spreads the costs across those who most benefit

9

from the Commonwealth's system of roads, highways and

10

bridges.

11

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

12

operation, maintenance, construction and improvement of toll

13

roads is a proprietary function which may be delegated to a

14

private entity consistent with section 31 of Article 3 of the

15

Constitution of Pennsylvania.

16

(6)  Authorizing public entities to enter into

17

transportation development agreements with private entities

18

and other public entities for the development, operation and

19

financing of transportation facilities can result in greater

20

availability of transportation facilities to the public in a

21

timely, efficient and less costly fashion, thereby serving

22

the public safety and welfare.

23

(7)  Assuring that qualifying transportation projects are

24

developed, operated and financed in a cost-effective manner

25

is an important factor in promoting the health, safety and

26

welfare of the citizens of this Commonwealth.

27

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

28

(1)  To encourage private entities to invest in this

29

Commonwealth by participating in the development, operation

30

and/or financing of transportation facilities.

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1

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

2

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

3

chapter to provide public entities and private entities with

4

the flexibility in contracting with each other for and in

5

providing of the public services that are the subject of this

6

title.

7

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

8

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

9

chapter to make clear that public entities are authorized and

10

empowered to contract with private entities for and in

11

providing the public services which are the subject of this

12

title.

13

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

14

the charging of user fees consistent with the goals under

15

subsection (a) and paragraph (1).

16

§ 9103.  Definitions.

17

The following words and phrases when used in this chapter

18

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

19

context clearly indicates otherwise:

20

"Account."  The Public-Private Transportation Account.

21

"Board."  The Public-Private Transportation Partnership

22

Board.

23

"Department."  The Department of Transportation of the

24

Commonwealth.

25

"Development entity."  Any of the following:

26

(1)  A private entity.

27

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

28

entity.

29

(3)  A partnership of entities proposing, bidding or

30

responding to a solicitation by the department or a

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1

proprietary public entity.

2

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

3

that is capable of charging an account holder for the prescribed

4

toll by electronic transmission of information, including E-Z

5

Pass, open road tolling, video tolling or other similar

6

structural or technological enhancements pertaining to tolling.

7

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

8

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

9

this Commonwealth or a unit of government.

10

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

11

eligible transportation facility that is subject to a public-

12

private transportation partnership agreement.

13

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

14

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

15

term includes the department and the Pennsylvania Turnpike

16

Commission. The term does not include the General Assembly and

17

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

18

or agency of the Pennsylvania judicial system.

19

"Public-private transportation partnership agreement."  A

20

binding agreement for a public-private transportation project

21

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

22

of a transportation facility by the department or a proprietary

23

public entity to a development entity for a definite term during

24

which the development entity will provide transportation-related

25

services in return for the right to receive all or a portion of

26

the revenue 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.

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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

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

8

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

9

transport.

10

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

11

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

12

"Solicitation."  The process by which the department or a

13

proprietary public entity may elect to procure services under

14

section 9106(b) (relating to approval).

15

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

16

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

17

"Transportation facility."  A proposed or existing road,

18

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

19

transportation facility, vehicle parking facility, port

20

facility, multimodal transportation facility, airport, station,

21

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

22

transportation of persons, animals or goods, together with any

23

buildings, structures, parking areas, appurtenances and other

24

property needed to operate the transportation facility. The term

25

includes any improvements or substantial enhancements or

26

modifications to an existing transportation facility.

27

"Unit of government."  Any of the following:

28

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

29

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

30

entity, port or other public corporation organized and

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1

existing under statutory law, voter-approved charter or

2

initiative.

3

(3)  An intergovernmental entity.

4

§ 9104.  Regulations.

5

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

6

of this chapter, the department may promulgate regulations or

7

publish guidelines that include any of the following:

8

(1)  The process for review of request for solicitations

9

or responses to requests for solicitations issued by the

10

department or a proprietary public entity.

11

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

12

to competing responses to requests for solicitations.

13

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

14

for adequate review of and response to each state of review

15

of a solicitation.

16

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

17

the department and the board by public entities for approval

18

of a public-private transportation project under this

19

chapter.

20

(5)  Any other provisions which are required under this

21

chapter or which the department determines are appropriate

22

for implementation of this chapter.

23

(b)  Temporary regulations.--Notwithstanding any other

24

provision of law and in order to facilitate the prompt

25

implementation of this chapter, any regulation promulgated by

26

the department under this chapter during the two years following

27

the effective date of this section shall be deemed temporary

28

regulations which shall expire no later than three years

29

following the effective date of this section or upon

30

promulgation of final regulations. The temporary regulations

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1

shall not be subject to any of the following:

2

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

3

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

4

Documents Law.

5

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

6

the Regulatory Review Act.

7

§ 9105.  Project delivery methods.

8

The department shall provide for the development or operation

9

of eligible facilities using a variety of project delivery

10

methods and forms of agreement. The methods may include:

11

(1)  Predevelopment agreements leading to other

12

implementing agreements.

13

(2)  A design-build agreement.

14

(3)  A design-build-maintain agreement.

15

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

16

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

17

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

18

(7)  A concession providing for the private entity to

19

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

20

transportation facility.

21

(8)  Any other project delivery method or agreement or

22

combination of methods or agreements that the department

23

determines will serve the public interest.

24

§ 9106.  Approval.

25

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

26

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

27

an agreement with a development entity for the purpose of

28

forming a public-private transportation partnership in

29

accordance with this chapter.

30

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

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1

entity may procure services under this chapter using any or all

2

of the following:

3

(1)  Request for project proposals in which is described

4

a class of transportation facilities or a geographic area in

5

which development entities are invited to submit proposals to

6

develop transportation facilities.

7

(2)  Solicitations using requests for qualifications,

8

short-listing of qualified proposers, requests for proposals,

9

negotiations, best and final offers or other procurement

10

procedures.

11

(3)  Procurements seeking development and finance plans

12

most suitable for the project.

13

(4)  Best value selection procurements based on price,

14

financial proposals, or both, or other factors determined to

15

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

16

Commonwealth or the proprietary public entity.

17

(5)  Other procedures that the department determines may

18

further the implementation of this chapter.

19

(6)  Unsolicited proposals as recommended by the board if

20

the board, in consultation with the department, determines

21

there is sufficient merit to pursue the proposal, a

22

reasonable opportunity for other entities to submit competing

23

proposals for consideration and a possible contract award.

24

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

25

must give adequate public notice of any request for

26

qualifications, request for proposal or other solicitation in a

27

reasonable amount of time prior to any deadline date for

28

submission. The solicitation shall generally set forth the

29

factors that will be evaluated and the manner in which responses

30

will be evaluated.

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1

(d)  Costs.--

2

(1)  The department and a proprietary public entity and

3

their respective advisers shall not be responsible for any

4

costs or damages incurred by a private party in connection

5

with any requests for qualifications, requests for proposals

6

or other solicitations.

7

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

8

in their discretion, elect to pay a stipend to unsuccessful

9

offerors who have submitted responsive proposals, bids and

10

other materials in response to a request for proposals or

11

other solicitation. Stipends may be made available solely to

12

defray the costs of proposal or response preparation. The

13

availability of a stipend and the conditions necessary to

14

qualify for payment shall be included in the request for

15

proposals or other solicitation.

16

(3)  The department or a proprietary public entity may

17

charge and retain an administrative fee for the evaluation of

18

a public-private transportation partnership proposal as

19

recommended by the board.

20

(e)  Modification and termination rights.--

21

(1)  The department or a proprietary public entity may

22

modify a solicitation request if it determines the

23

modification to be in the best interest of the Commonwealth

24

or proprietary public entity.

25

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

26

prior to the time a public-private transportation partnership

27

agreement is executed, if the department or the proprietary

28

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

29

action is in the best interest of the Commonwealth or the

30

proprietary public entity. The reasons for cancellation shall

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1

be made a part of the file.

2

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

3

solicitation request may be rejected at any time prior to the

4

time a public-private transportation partnership agreement is

5

executed, if the department or the proprietary public entity

6

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

7

the best interest of the Commonwealth or the proprietary

8

public entity. The reasons for rejection shall be made part

9

of the file.

10

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

11

for solicitation shall be final and unreviewable.

12

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

13

way shall obligate the department or a proprietary public

14

entity to enter into a public-private transportation

15

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

16

(f)  Selection criteria, evaluation and award by the

17

department or a proprietary public entity.--

18

(1)  In evaluating proposals, the department or a

19

proprietary public entity shall obtain the best value for the

20

Commonwealth or the proprietary public entity and may accord

21

relative weight to factors such as cost, financial

22

commitment, innovative financing, technical, scientific,

23

technological or socioeconomic merit, financial strength and

24

viability and other factors as deemed appropriate.

25

(2)  The department or a proprietary public entity may

26

conduct discussions with development entities to assure

27

understanding of and responsiveness to the requirements of a

28

request for qualifications.

29

(3)  The department or a proprietary public entity shall

30

conduct a public and competitive process to award a public-

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1

private transportation partnership agreement.

2

(4)  The department or a proprietary public entity shall

3

accept for contract negotiation the responsive and

4

responsible development entity whose proposal is determined

5

in writing to be the most advantageous to the Commonwealth or

6

the proprietary public entity, taking into consideration

7

price and all evaluation factors.

8

(5)  The department or a proprietary public entity may

9

require that any bid or proposal submitted to enter into a

10

public-private transportation partnership agreement be

11

accompanied by security in the form of cash, letters of

12

credit or other financial security acceptable to the

13

department or the proprietary public entity.

14

(6)  The department or a proprietary public entity may

15

retain financial, technical, legal and other consultants and

16

experts to assist in the evaluation, negotiation and

17

development of eligible facilities under this chapter.

18

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

19

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

20

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

21

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

22

technologies, techniques, methods, processes and information

23

contained in the response. Notice of nontransferability by law

24

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

25

qualifications.

26

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

27

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

28

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

29

party to a public-private transportation partnership

30

agreement, the identity of the development entity selected,

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1

the contents of the response of the development entity to the

2

request for qualifications, the final bid or proposal

3

submitted by the development entity and the form of the

4

public-private transportation agreement shall be made public.

5

Any financial information of a development entity that was

6

requested in a request for qualifications or a solicitation

7

to demonstrate the economic capability of a development

8

entity to fully perform the requirements of the public-

9

private transportation partnership agreement and which is

10

contained in a response to a request for qualifications shall

11

not be subject to public inspection.

12

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

13

in its discretion, make public any information described

14

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

15

public inspection.

16

(3)  If the department or a proprietary public entity

17

terminates a public-private transportation partnership

18

agreement for default, rejects a development entity or a

19

person on the grounds that the development entity is not

20

responsible or suspends or debars a development entity or a

21

person, the development entity or person shall, upon written

22

request, be provided with a copy of the information contained

23

in the file of the development entity or person maintained by

24

the department, the Office of the Budget and the Department

25

of General Services or a proprietary public entity under a

26

contractor responsibility program.

27

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

28

or retained by the department or a proprietary public entity

29

or their employees, consultants or agents in connection with

30

the evaluation of requests for qualifications shall not

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1

constitute a public record subject to public inspection under

2

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

3

department or the proprietary public entity, the inspection

4

would cause substantial competitive harm to the entity or

5

person from whom the information was received.

6

(i)  Diversity.--

7

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

8

that the department and proprietary public entities promote

9

and ensure diversity in all aspects of development and

10

operation of a public-private transportation project

11

authorized under this chapter. The department and proprietary

12

public entities shall work to enhance the representation of

13

diverse groups in the development and operation by private

14

entities of any public-private transportation project through

15

the participation of business enterprises utilized by

16

development entities and through the provision of goods and

17

services utilized by development entities in the development

18

and operation of any public-private transportation project

19

authorized under this chapter.

20

(2)  The department is authorized to investigate and

21

conduct periodic studies to ascertain whether effective and

22

meaningful action has been taken or will be taken to enhance

23

the representation of diverse groups in the development and

24

operation by development entities of any public-private

25

transportation project in this Commonwealth through the

26

participation of business enterprises utilized by development

27

entities in the development and operating of any public-

28

private transportation project under this chapter and through

29

the provision of goods and services utilized by development

30

entities in the development and operation of any public-

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1

private transportation project and through employment

2

opportunities.

3

§ 9107.  Public-private transportation partnership 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 transportation facility.

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

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

17

property interests that may be required.

18

(4)  Authorization for the department and the proprietary

19

public entity, or their authorized representatives, to

20

inspect all assets and properties of the transportation

21

facility and all books and records of the development entity

22

relating to the eligible transportation facility to review

23

the development entity's performance under the public-private

24

transportation partnership agreement.

25

(5)  Grounds for termination of the public-private

26

transportation partnership agreement by the parties.

27

(6)  Procedures for amendment of the public-private

28

transportation partnership agreement.

29

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

30

breach, default or delay.

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1

(8)  Requirements for a private development entity to

2

provide performance and payment bonds, parent company

3

guarantees, letters of credit or other acceptable forms of

4

security in an amount acceptable to the proprietary public

5

entity.

6

(9)  A requirement that the transportation facility

7

acquired or constructed is public property that is leased to

8

the development entity and belongs to the proprietary public

9

entity.

10

(10)  Standards for construction, maintenance and

11

operation of the transportation facility if the activities

12

are to be performed by the development entity.

13

(11)  Standards for capital improvement or modification

14

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

15

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 project.

23

(14)  Standards relating to how the parties will allocate

24

costs of development of the project, including any cost

25

overruns.

26

(15)  Standards relating to damages to be assessed for

27

nonperformance, specifying remedies available to the parties

28

and dispute resolution procedures.

29

(16)  Standards relating to performance criteria and

30

incentives.

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1

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

2

private transportation partnership agreement, the

3

transportation facility must be in a state of proper

4

maintenance and repair and shall be returned to the

5

proprietary public entity in satisfactory condition at no

6

further cost to the proprietary public entity.

7

(18)  Provisions for law enforcement of the public

8

transportation facility.

9

(19)  An obligation of the private entity to offer

10

employment to any employee of the department or proprietary

11

public entity who would lose employment due to the execution

12

of the public-private partnership agreement and who is in

13

good standing at the time of execution of the partnership

14

agreement, including salary, retirement, health and welfare,

15

and benefits which are substantially identical to the

16

benefits received by the employees immediately prior to

17

execution of the partnership agreement.

18

(20)  Other terms and provisions as required under this

19

chapter.

20

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

21

the private entity and the department or the proprietary

22

public entity.

23

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

24

enter into a public-private transportation partnership agreement

25

with any development entity that includes the provisions under

26

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

27

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

28

the department from entering into a partnership agreement with

29

another Commonwealth agency for purposes of forming a

30

transportation partnership in accordance with this chapter.

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1

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

2

prohibit any propriety public entity from entering into a

3

public-private transportation partnership agreement with one or

4

more public entities for purposes of forming a transportation

5

partnership in accordance with this chapter.

6

(e)  Environmental costs.--

7

(1)  The department or any other proprietary public

8

entity may provide in a public-private transportation

9

partnership agreement that it will pay or reimburse, on terms

10

that it deems appropriate, the development entity for actual

11

costs associated with necessary remediation, including

12

investigation activities, for existing environmental

13

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

14

property associated with a transportation facility as of the

15

date the development entity assumes responsibility for the

16

transportation facility. If provision is made under this

17

paragraph, the public-private transportation partnership

18

agreement shall require that the proprietary public entity be

19

given:

20

(i)  Prompt notice of any claim against the third

21

party pertaining to the contaminants.

22

(ii)  The right to elect to undertake the necessary

23

remediation.

24

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

25

response to any claim.

26

(iv)  The right of prior approval before the

27

development entity may settle any claim.

28

(2)  No payment by the department or any other

29

proprietary public entity under this section may be for

30

anything other than, or extend beyond, actual losses,

- 18 -

 


1

liabilities, damages, penalties, charges, costs and expenses

2

incurred by a private entity to remediate the environmental

3

contamination on, under or emanating from the real property

4

associated with the transportation facility as of the date

5

the development entity assumes responsibility for the

6

transportation facility.

7

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

8

will be collected for use of the transportation facility and the

9

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

10

private transportation partnership agreement. If a user fee is

11

proposed as part of the public-private transportation

12

partnership project, the department or a proprietary public

13

entity shall include provisions in the agreement that authorize

14

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

15

including provisions that:

16

(1)  Specify technology to be used in the transportation

17

facility.

18

(2)  Establish circumstances under which the department

19

or the proprietary public entity may receive a share of

20

revenues from the charges.

21

(3)  Govern the enforcement of electronic tolls,

22

including provisions for use of available technology.

23

(4)  Establish payment collection standards, including

24

provisions for enforcement of nonpayment and penalties.

25

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

26

the prescribed toll or user fee at any location on a

27

transportation facility where tolls or user fees are

28

collected by means of an electronic or other automated or

29

remote form of collection, the collection provisions of

30

section 8117 (relating to electronic toll collection) shall

- 19 -

 


1

apply except that the private entity shall possess all of the

2

rights, roles, limitations and responsibilities of the

3

Pennsylvania Turnpike Commission.

4

(g)  Amounts received under a public-private transportation

5

partnership agreement.--The net proceeds received by the

6

department or the proprietary public entity under a public-

7

private transportation partnership agreement shall be available

8

exclusively to provide funding for transportation needs in this

9

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

10

transportation facility shall comply with Federal or State law

11

restricting or limiting the use of revenue from the

12

transportation facility based on its public funding.

13

§ 9108.  Police powers and violations of law.

14

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

15

private transportation facility is a highway, bridge, tunnel

16

overpass or similar transportation facility for motor vehicles,

17

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

18

applicable, any local jurisdiction shall be the same as those

19

applying to conduct on similar transportation facilities in this

20

Commonwealth or the local jurisdiction. Punishment for offenses

21

shall be prescribed by law for conduct occurring on similar

22

transportation facilities in this Commonwealth or the local

23

jurisdiction.

24

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

25

arrests for violations of law in this Commonwealth shall have

26

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

27

public-private transportation project as they have in their

28

respective areas of jurisdiction. The grant of authority under

29

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

30

garages and other improvements of a private entity to any

- 20 -

 


1

greater degree than the police power extends to any other

2

private offices, buildings, garages and other improvements.

3

§ 9109.  Environmental and other authorizations.

4

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

5

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

6

soliciting nor approving a request for qualification, nor

7

executing a public-private transportation partnership agreement

8

under this chapter shall constitute the submission of a

9

preliminary plan or design to the department under section

10

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

11

The Administrative Code of 1929.

12

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

13

transportation partnership agreement may require that prior to

14

commencing any construction in connection with the development,

15

operation or financing of any eligible transportation facility

16

if the agreement requires environmental authorizations are

17

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

18

(1)  Secure all necessary environmental permits and

19

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

20

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

21

Environmental Remediation Standards Act, obtain the approval

22

of the Department of Environmental Protection.

23

(2)  Complete environmental remediation of the site on

24

which the eligible transportation facility is or is to be

25

located, including acts required under any agreement entered

26

into with the Department of Environmental Protection for

27

remediation of the site under the Land Recycling and

28

Environmental Remediation Standards Act.

29

§ 9110.  Taxation of authorized development entity or entities.

30

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

- 21 -

 


1

received by a development entity or entities pursuant to a

2

public-private transportation partnership agreement are subject

3

to a tax imposed by a political subdivision prior to the

4

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

5

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

6

rate of the tax.

7

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

8

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

9

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

10

development entity or entities pursuant to a public-private

11

transportation partnership agreement.

12

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

13

partnership agreement, lease, concession, franchise or other

14

contract involving real property of a public-private

15

transportation project shall be subject to a Commonwealth or

16

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

17

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

18

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

19

Code of 1971, or a successor statute.

20

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

21

private transportation project shall be considered public

22

property and shall be exempt from ad valorem property taxes and

23

special assessments levied against property by the Commonwealth

24

or any political subdivision.

25

§ 9111.  Power of eminent domain.

26

The exercise of the power of eminent domain by any condemnor

27

to acquire property for transportation facility purposes under a

28

public-private transportation partnership agreement shall be

29

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

30

purpose or for private enterprise.

- 22 -

 


1

§ 9112.  Sovereign immunity.

2

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

3

Article I of the Constitution of Pennsylvania, reaffirms

4

sovereign immunity and, except as otherwise provided under

5

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

6

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

7

(relating to sovereign immunity reaffirmed; specific waiver) or

8

otherwise.

9

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

10

Article I of the Constitution of Pennsylvania, waives sovereign

11

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

12

department, commission, authority or agency of the Commonwealth

13

or any authority or political subdivision brought in accordance

14

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

15

partnership agreement) and 9113 (relating to amounts payable by

16

proprietary public entities and specific performance), but only

17

to the extent set forth under this chapter.

18

§ 9113.  Amounts payable by proprietary public entities and

19

specific performance.

20

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

21

proprietary public entity is authorized to agree to make

22

payments to a development entity pursuant to a public-private

23

transportation partnership agreement under any of the following:

24

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

25

its representations, covenants, warranties or other

26

obligations under the public-private transportation

27

partnership agreement.

28

(2)  If the proprietary public entity takes adverse

29

actions against the development entity in violation of the

30

terms of the public-private transportation partnership

- 23 -

 


1

agreement.

2

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

3

that have a material adverse effect on the ability of the

4

development entity to perform its obligations under the

5

public-private transportation partnership agreement or to

6

obtain the benefits of the public-private transportation

7

partnership agreement.

8

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

9

public entity pursuant to a public-private transportation

10

partnership agreement may be for:

11

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

12

expenses of the development entity.

13

(2)  Amounts necessary to restore the development entity

14

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

15

had the event in question not occurred.

16

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

17

the interest, benefits and rights of the development entity

18

and the rights and obligations of the development entity

19

created and made under the public-private transportation

20

partnership agreement.

21

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

22

authorized to agree that specific performance shall be available

23

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

24

proprietary public entity of its representations, covenants,

25

warranties or other obligations under the public-private

26

transportation partnership agreement to the extent set forth in

27

the public-private transportation partnership agreement.

28

§ 9114.  Design-build development and Separations Act.

29

Notwithstanding any other provision of law:

30

(1)  Any public-private transportation partnership

- 24 -

 


1

project undertaken under this chapter may provide design-

2

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

3

and operate-maintain procurements and other innovative or

4

nontraditional competitive procurement methods for

5

transportation-related infrastructure development.

6

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

7

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

8

referred to as the Separations Act, in connection with the

9

development or operation of a public-private transportation

10

project authorized under this chapter.

11

§ 9115.  Additional procurement provisions.

12

To the extent applicable to the proprietary public entity,

13

the following provisions shall apply to a contract entered into

14

between the department or a proprietary public entity and an

15

authorized development entity related to the development,

16

operation or financing of a public-private transportation

17

project under this chapter:

18

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

19

as the Pennsylvania Prevailing Wage Act.

20

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

21

entitled, "An act equalizing trade practices in public works

22

procurement; authorizing the purchase by the Commonwealth,

23

its political subdivisions, and all public agencies, of

24

aluminum and steel products produced in a foreign country,

25

provided the foreign country does not prohibit or

26

discriminate against the importation to, sale or use in the

27

foreign country of supplies, material or equipment

28

manufactured in this Commonwealth; establishing procedures

29

for determining whether foreign countries discriminate

30

against supplies, materials or equipment manufactured in this

- 25 -

 


1

Commonwealth; and imposing penalties and providing for relief

2

for violation of this act."

3

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

4

Steel Products Procurement Act.

5

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

6

limitations).

7

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

8

suspension).

9

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

10

system).

11

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

12

plant).

13

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

14

records).

15

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

16

procurement records).

17

§ 9116.  Adverse interest.

18

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

19

apply:

20

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

21

entity which submits a response to a request for solicitation

22

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

23

unsolicited proposal and which is also a State adviser or a

24

State consultant for the department or the Pennsylvania

25

Turnpike Commission shall not be deemed to be in violation of

26

the State Adverse Interest Act while engaging in any of the

27

following activities:

28

(i)  Preparing or submitting a response to a request

29

for qualifications.

30

(ii)  Participating in any activity with the

- 26 -

 


1

department related to a request for solicitation.

2

(iii)  Negotiating and entering into any contract

3

lease or public-private transportation partnership

4

agreement which results from a request for solicitation.

5

(iv)  Engaging in any other action taken in

6

furtherance of the purposes of this chapter.

7

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

8

request for solicitation or acts as a consultant or an

9

adviser to a private entity which submits a response to a

10

request for solicitation to the department shall be

11

prohibited from consulting or providing advice to the

12

department on the review or approval of the response to the

13

request for solicitations as submitted.

14

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

15

request for solicitation or acts as a consultant or an

16

adviser to a private entity which submits a response to a

17

request for solicitation to the board shall be prohibited

18

from consulting or providing advice to the department on the

19

review or approval of the response to the request for

20

solicitations so submitted.

21

(b)  (Reserved).

22

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

23

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

24

subsection unless the context clearly indicates otherwise:

25

"State adviser."  As the term "State advisor" is defined in

26

the State Adverse Interest Act.

27

"State consultant."  As defined in the State Adverse Interest

28

Act.

29

§ 9117.  Application of chapter.

30

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

- 27 -

 


1

private transportation partnership agreements between

2

proprietary public entities, other public entities and

3

development parties for public-private transportation projects

4

and shall satisfy any applicable procurement laws unless

5

otherwise or to the extent provided for under this chapter.

6

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

7

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

8

(relating to Commonwealth Procurement Code) or any other

9

Commonwealth law relating to the expenditure or receipt of funds

10

by a public entity under contract for construction or services.

11

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

12

proprietary public entity from entering into a public-private

13

transportation partnership agreement in the capacity of a

14

proprietary public entity pursuant to powers granted exclusively

15

under other Commonwealth statutes.

16

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

17

chapter, the public-private transportation partnership agreement

18

shall be subject to the provisions of this chapter.

19

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

20

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

21

(1)  The department or a proprietary public entity may

22

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

23

that are available to the Commonwealth for carrying out this

24

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

25

loan guarantee or otherwise.

26

(2)  The department or a proprietary public entity is

27

authorized to assent to any Federal requirements, conditions

28

or terms of any Federal funding accepted by the department

29

under this section.

30

(3)  The department or a proprietary public entity may

- 28 -

 


1

enter into agreements or other arrangements with the United

2

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

3

carrying out the purposes of this chapter.

4

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

5

proprietary public entity may accept from any source any grant,

6

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

7

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

8

for carrying out the purpose of this chapter.

9

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

10

between the private entity and the department or a proprietary

11

public entity, any eligible transportation facility may be

12

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

13

property made by the department or a proprietary public entity,

14

a private entity, a proprietary public entity or an affected

15

jurisdiction.

16

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

17

public entity may combine Federal, State, local and private

18

funds to finance an eligible transportation facility under this

19

chapter.

20

§ 9119.  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 pursuant to the terms of a

- 29 -

 


1

public-private transportation partnership agreement.

2

(ii)  Repayment of any loans from the account made

3

under this chapter.

4

(iii)  Subject to the provisions of any public-

5

private transportation partnership agreement, monetary

6

damages and other amounts for failure by a development

7

entity to comply with the terms of the public-private

8

transportation partnership agreement.

9

(iv)  Subject to the provisions of any public private

10

transportation partnership agreement, payments made from

11

any insurance proceeds or reserve funds or performance or

12

payment bonds in connection with a transportation

13

facility.

14

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

15

account.

16

(2)  The Secretary of the Budget shall establish any

17

restricted accounts within the account as the secretary deems

18

necessary for the proper administration of the account.

19

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

20

continuously appropriated to the department for the following

21

purposes:

22

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

23

to repay the Federal Highway Administration.

24

(2)  Paying all amounts designated by the department as

25

required for repayment or defeasance of outstanding bonds.

26

(3)  Paying costs of maintenance, operating and financing

27

of transportation facilities in this Commonwealth which are

28

available for use by the public, including the costs of

29

insurance or reserves against risks of contingencies.

30

(4)  Paying expenses incurred under or in connection with

- 30 -

 


1

any public-private transportation partnership agreement by

2

the department, including professional fees and expenses.

3

(5)  Paying the costs of the department relating to

4

performing and administering duties under this chapter.

5

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

6

costs incurred to perform its duties, including paying

7

professional fees and expenses.

8

(7)  Paying costs of any purpose authorized under this

9

chapter.

10

(d)  Amounts received under a public-private transportation

11

partnership agreement.--The net proceeds received under a

12

public-private transportation partnership agreement shall be

13

available exclusively to provide funding for transportation

14

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

15

revenues from the transportation facility shall be in accord

16

with Federal or State law restricting or limiting the use of

17

revenue from the transportation facility based on its public

18

funding.

19

§ 9120.  Public-Private Transportation Partnership Board.

20

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

21

Transportation Partnership Board.

22

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

23

following members:

24

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

25

chairperson of the board as an ex officio member.

26

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

27

officio member.

28

(3)  The Deputy Secretary of Planning of the department,

29

or a designee as an ex officio member.

30

(4)  Four members appointed by the General Assembly under

- 31 -

 


1

subsection (c).

2

(5)  One member appointed by the Governor under

3

subsection (d).

4

(c)  Legislative appointments.--

5

(1)  Appointments by members of the General Assembly

6

shall be made as follows:

7

(i)  One individual appointed by the President pro

8

tempore of the Senate.

9

(ii)  One individual appointed by the Minority Leader

10

of the Senate.

11

(iii)  One individual appointed by the Speaker of the

12

House of Representatives.

13

(iv)  One individual appointed by the Minority Leader

14

of the House of Representatives.

15

(2)  Legislative appointees shall serve at the pleasure

16

of the appointing authority.

17

(3)  Legislative appointees shall:

18

(i)  Be reputable citizens of this Commonwealth, of

19

mature judgment and broad experience.

20

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

21

staff of a member of the General Assembly.

22

(iii)  Have professional background expertise or

23

substantial experience in one or more of the following

24

areas:

25

(A)  Transportation.

26

(B)  Finance.

27

(C)  Law.

28

(D)  Land use and public planning.

29

(d)  Gubernatorial appointment.--Appointments under

30

subsection (b)(5) shall be made by the Governor. The member

- 32 -

 


1

shall:

2

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

3

mature judgment and broad business experience.

4

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

5

Commonwealth.

6

(3)  Have professional background expertise or

7

substantial experience in one or more of the following areas: 

8

(i)  Transportation.

9

(ii)  Finance.

10

(iii)  Law.

11

(iv)  Land use and public planning.

12

(4)  Serve at the pleasure of the Governor.

13

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

14

quorum.

15

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

16

entitled to no compensation for their services as members of the

17

board but shall be entitled to reimbursement by the department

18

for all necessary and reasonable expenses incurred in connection

19

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

20

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

21

shall appoint initial board members within 30 days of the

22

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

23

board, the appointing authority shall appoint a successor member

24

within 30 days of the vacancy.

25

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

26

term of office shall directly or indirectly own, have any

27

significant financial interest in, be associated with or receive

28

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

29

public entity or private entity seeking to engage in a

30

transportation development agreement.

- 33 -

 


1

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

2

board:

3

(1)  The Right-to-Know Law.

4

(2)  The State Adverse Interest Act.

5

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

6

open meetings) and 11 (relating to ethics standards and

7

financial disclosure).

8

§ 9121.  Duties and powers of board.

9

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

10

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

11

(2)  Adopt guidelines establishing the procedure by which

12

a public entity or private entity may submit a request for

13

evaluation of a solicited or unsolicited proposal to the

14

board, including guidelines necessary for initial project

15

approval and final project approval.

16

(3)  Consult with persons affected by proposed public-

17

private transportation partnership projects.

18

(4)  Evaluate and approve or deny requests by the

19

department and proprietary public entities to undertake

20

transportation partnership projects and make recommendations

21

to the department and proprietary public entities in the form

22

of a resolution.

23

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

24

of the majority of the members shall be necessary for the

25

adoption of a resolution.

26

(6)  Submit an annual report to the General Assembly

27

detailing all transportation partnership projects evaluated

28

and resolutions adopted.

29

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

30

(1)  In evaluating proposals, accord relative weight to

- 34 -

 


1

factors such as cost, financial commitment, innovative

2

financing, technical, scientific, technological or

3

socioeconomic merit and other factors as the board deems

4

appropriate to obtain the best value for the Commonwealth.

5

(2)  Conduct discussions with private entities to assure

6

understanding of and responsiveness to a request for

7

evaluation.

8

(3)  Seek technical assistance necessary to assist the

9

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

10

of the department.

11

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

12

public policy and public interest and shall not be considered

13

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

14

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

15

(relating to judicial review of Commonwealth agency action) and

16

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

17

§ 9122.  Role of department in operation of board.

18

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

19

necessary assistance to assist the board in carrying out its

20

duties and responsibilities, including retention of legal,

21

financial and technical consultants to assist with this role.

22

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

23

private transportation project, the department shall develop a

24

detailed analysis of the proposal prior to the final approval by

25

the board.

26

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

27

transportation partnership project, the department shall retain

28

oversight and monitor the project, including periodic reports to

29

the board, as necessary.

30

Section 2.  Repeals are as follows:

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1

(1)  The General Assembly declares that the repeal under

2

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

3

Pa.C.S. Ch. 91.

4

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

5

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

6

repealed insofar as it is inconsistent with the addition of

7

74 Pa.C.S. Ch. 91.

8

Section 3.  This act shall take effect as follows:

9

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

10

take effect immediately.

11

(2)  This section shall take effect immediately.

12

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

13

days.

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