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| PRIOR PRINTER'S NOS. 336, 438 | PRINTER'S NO. 1786 |
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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| SENATE BILL |
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| INTRODUCED BY RAFFERTY, SCARNATI, PILEGGI, D. WHITE, YAW, ORIE, ERICKSON, BAKER, FONTANA, PIPPY, BRUBAKER, ALLOWAY, BOSCOLA, WAUGH, MENSCH, EICHELBERGER, GORDNER, M. WHITE, EARLL AND BROWNE, FEBRUARY 1, 2011 |
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| SENATOR RAFFERTY, TRANSPORTATION, RE-REPORTED AS AMENDED, NOVEMBER 15, 2011 |
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| AN ACT |
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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. |
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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, |
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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 |
|
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 |
|
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 |
|
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. |
|
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 |
|
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 |
|
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 |
|
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 |
|
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- |
|
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 |
|
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 |
|
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 |
|
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 |
|
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 staff of a member of the General |
21 | 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 |
|
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. |
|
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 |
|
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: |
|
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. |
14 | Section 1. Title 74 of the Pennsylvania Consolidated | <-- |
15 | Statutes is amended by adding a part to read: |
16 | PART V |
17 | TRANSPORTATION INFRASTRUCTURE |
18 | Chapter |
19 | 91. Public-Private Transportation Partnership |
20 | CHAPTER 91 |
21 | PUBLIC-PRIVATE TRANSPORTATION PARTNERSHIP |
22 | Sec. |
23 | 9101. Scope of chapter. |
24 | 9102. Findings and declaration of policy. |
25 | 9103. Definitions. |
26 | 9104. Public-Private Transportation Partnership Board. |
27 | 9105. Duties of board. |
28 | 9106. Operation of board. |
29 | 9107. Solicitations for transportation projects. |
30 | 9108. Transportation projects. |
|
1 | 9109. Requests. |
2 | 9110. Selection of development entities. |
3 | 9111. Public-private transportation partnership agreement. |
4 | 9112. Records of requests. |
5 | 9113. Use of intellectual property. |
6 | 9114. Police powers and violations of law. |
7 | 9115. Environmental and other authorizations. |
8 | 9116. Taxation of development entity. |
9 | 9117. Power of eminent domain. |
10 | 9118. Sovereign immunity. |
11 | 9119. Specific performance. |
12 | 9120. Additional provisions. |
13 | 9121. Adverse interest. |
14 | 9122. Federal, State, local and private assistance. |
15 | 9123. Public-Private Transportation Account. |
16 | 9124. Pennsylvania Turnpike Commission. |
17 | 9125. Regulations. |
18 | § 9101. Scope of chapter. |
19 | This chapter relates to public-private transportation |
20 | partnerships. |
21 | § 9102. Findings and declaration of policy. |
22 | (a) Legislative findings and declarations.--The General |
23 | Assembly finds, determines and declares as follows: |
24 | (1) There is urgent public need to reduce congestion, |
25 | increase capacity, improve safety and enhance economic |
26 | efficiency of transportation facilities throughout this |
27 | Commonwealth. |
28 | (2) The public entities have limited resources to fund |
29 | the maintenance and expansion of their respective |
30 | transportation facilities. |
|
1 | (3) To ensure the needs of the public are adequately |
2 | addressed, alternative funding mechanisms and strategies must |
3 | be developed to supplement existing public revenue sources. |
4 | (4) The imposition of user fees establishes an |
5 | additional funding source for transportation infrastructure |
6 | needs that spreads the costs across those who most benefit |
7 | from the Commonwealth's system of roads, highways and |
8 | bridges. |
9 | (5) The imposition of user fees and the development, |
10 | operation, maintenance, construction and improvement of toll |
11 | roads is a proprietary function which may be delegated to a |
12 | private entity consistent with section 31 of Article III of |
13 | the Constitution of Pennsylvania. |
14 | (6) Authorizing public entities to enter into |
15 | transportation partnership agreements with private entities |
16 | and other public entities for the development, operation and |
17 | financing of transportation facilities can result in greater |
18 | availability of transportation facilities to the public in a |
19 | timely, efficient and less costly fashion, thereby serving |
20 | the public safety and welfare. |
21 | (7) Assuring that public-private transportation projects |
22 | are developed, operated and financed in a cost-effective |
23 | manner is an important factor in promoting the health, safety |
24 | and welfare of the citizens of this Commonwealth. |
25 | (b) Intent.--It is the intent of this chapter: |
26 | (1) To encourage private entities to invest in this |
27 | Commonwealth by participating in the development, operation |
28 | or financing of transportation facilities. |
29 | (2) To provide public entities and private entities with |
30 | the authority and flexibility in contracting for the |
|
1 | development, operation and financing of transportation |
2 | facilities. |
3 | (3) To authorize public entities to contract with |
4 | private and other public entities to provide transportation |
5 | facilities and related services. |
6 | § 9103. Definitions. |
7 | The following words and phrases when used in this chapter |
8 | shall have the meanings given to them in this section unless the |
9 | context clearly indicates otherwise: |
10 | "Account." The Public-Private Transportation Account. |
11 | "Board." The Public-Private Transportation Partnership |
12 | Board. |
13 | "Department." The Department of Transportation of the |
14 | Commonwealth. |
15 | "Development entity." An entity which is a party to a |
16 | public-private transportation partnership agreement and which is |
17 | any of the following: |
18 | (1) A private entity. |
19 | (2) A public entity, other than the public entity |
20 | providing or improving its own transportation facilities. |
21 | "Electronic toll." A system of collecting tolls or charges |
22 | which is capable of charging an account holder for the |
23 | prescribed toll by electronic transmission of information. The |
24 | term includes open road tolls, video tolls or other similar |
25 | structural or technological enhancements pertaining to tolls. |
26 | "Offeror." A person that submits a proposal or a response in |
27 | answer to a request for proposals or transportation projects. |
28 | "Private entity." A person, entity, group or organization |
29 | that is not the Federal Government, the Commonwealth or a |
30 | municipal authority. |
|
1 | "Proprietary public entity." A public entity which owns a |
2 | public-private transportation project and which is a party to a |
3 | public-private transportation partnership agreement. |
4 | "Public entity." The Commonwealth or a municipal authority |
5 | which owns a transportation facility. The term does not include |
6 | the General Assembly and its members, officers or agencies or |
7 | any court or other office or agency of the Pennsylvania judicial |
8 | system. |
9 | "Public-private transportation partnership agreement." A |
10 | contract for a transportation project which transfers the rights |
11 | for the use or control, in whole or in part, of a transportation |
12 | facility by a public entity to a development entity for a |
13 | definite term during which the development entity will provide |
14 | the transportation project to the public entity in return for |
15 | the right to receive all or a portion of the revenue generated |
16 | from the use of the transportation facility, or other payment, |
17 | such as the following transportation-related services: |
18 | (1) Operations and maintenance. |
19 | (2) Revenue collection. |
20 | (3) User fee collection or enforcement. |
21 | (4) Design. |
22 | (5) Construction. |
23 | (6) Development and other activities with respect to |
24 | existing or new transportation facilities that enhance |
25 | traffic throughput, reduce congestion, improve safety or |
26 | otherwise manage or improve a transportation facility. |
27 | (7) Financing. |
28 | "Public-private transportation project." A transportation |
29 | project undertaken by a development entity pursuant to a public- |
30 | private transportation partnership agreement. |
|
1 | "Responsible offeror." An offeror that has submitted a |
2 | responsive proposal and that possesses the capability to fully |
3 | perform the public-private transportation partnership agreement |
4 | requirements in all respects and the integrity and reliability |
5 | to assure good faith performance. |
6 | "Responsive proposal." A proposal that conforms in all |
7 | material aspects to the requirements and criteria in the request |
8 | for proposals. |
9 | "Right-to-Know Law." The act of February 14, 2008 (P.L.6, |
10 | No.3), known as the Right-to-Know Law. |
11 | "State Adverse Interest Act." The act of July 19, 1957 |
12 | (P.L.1017, No.451), known as the State Adverse Interest Act. |
13 | "Transportation facility." A proposed or existing road, |
14 | bridge, tunnel, overpass, ferry, busway, guideway, public |
15 | transportation facility, vehicle parking facility, port |
16 | facility, multimodal transportation facility, airport, station, |
17 | hub, terminal or similar facility used or to be used for the |
18 | transportation of persons, animals or goods, together with any |
19 | buildings, structures, parking areas, appurtenances, intelligent |
20 | transportation systems and other property needed to operate the |
21 | transportation facility. The term includes any improvements or |
22 | substantial enhancements or modifications to an existing |
23 | transportation facility. |
24 | "Transportation project." An undertaking by a private entity |
25 | or a public entity, other than the public entity providing or |
26 | improving its own transportation facilities, to provide or |
27 | improve a transportation facility or transportation-related |
28 | service which is totally or partially located within this |
29 | Commonwealth. |
30 | § 9104. Public-Private Transportation Partnership Board. |
|
1 | (a) Establishment.--There is established a board to be known |
2 | as the Public-Private Transportation Partnership Board. |
3 | (b) Composition.--The board shall be composed of the |
4 | following members: |
5 | (1) The Secretary of Transportation, who shall be the |
6 | chairperson of the board, or a designee who shall be an |
7 | employee of the department. |
8 | (2) The Secretary of the Budget or a designee who shall |
9 | be an employee of the Office of the Budget. |
10 | (3) Four members appointed by the General Assembly under |
11 | subsection (c). |
12 | (4) One member appointed by the Governor under |
13 | subsection (d). |
14 | (c) Legislative appointments.-- |
15 | (1) Appointments of members by the General Assembly |
16 | shall be made as follows: |
17 | (i) One individual appointed by the President pro |
18 | tempore of the Senate. |
19 | (ii) One individual appointed by the Minority Leader |
20 | of the Senate. |
21 | (iii) One individual appointed by the Speaker of the |
22 | House of Representatives. |
23 | (iv) One individual appointed by the Minority Leader |
24 | of the House of Representatives. |
25 | (2) Legislative appointees shall serve at the pleasure |
26 | of the appointing authority. |
27 | (3) Legislative appointees shall have expertise or |
28 | substantial experience in one or more of the following areas: |
29 | (i) Transportation. |
30 | (ii) Finance. |
|
1 | (iii) Law. |
2 | (iv) Land use and public planning. |
3 | (d) Gubernatorial appointment.--A member appointed under |
4 | subsection (b)(4): |
5 | (1) May not hold any other position as an elected |
6 | official or employee of the Commonwealth. |
7 | (2) Shall have expertise or substantial experience in |
8 | one or more of the following areas: |
9 | (i) Transportation. |
10 | (ii) Finance. |
11 | (iii) Law. |
12 | (iv) Land use and public planning. |
13 | (3) Shall serve at the pleasure of the Governor. |
14 | (e) Quorum.--Five members of the board shall constitute a |
15 | quorum. The adoption of a resolution or other action of the |
16 | board shall require a majority vote of the members of the board. |
17 | (f) Compensation.--The members of the board shall be |
18 | entitled to no compensation for their services as members of the |
19 | board but shall be entitled to reimbursement by the department |
20 | for all necessary and reasonable expenses incurred in connection |
21 | with the performance of their duties as members of the board. |
22 | (g) Initial appointment and vacancy.--Appointing authorities |
23 | shall appoint initial board members within 30 days of the |
24 | effective date of this section. Whenever a vacancy occurs on the |
25 | board, the appointing authority shall appoint a successor member |
26 | within 30 days of the vacancy. |
27 | (h) Financial interests.--No member of the board, during his |
28 | term of office shall directly or indirectly own, have any |
29 | significant financial interest in, be associated with or receive |
30 | any fee, commission, compensation or anything of value from any |
|
1 | public entity or private entity seeking to engage in a public- |
2 | private transportation partnership agreement. |
3 | (i) Applicability.--The following acts shall apply to the |
4 | board: |
5 | (1) The Right-to-Know Law. |
6 | (2) The State Adverse Interest Act. |
7 | (3) The provisions of 65 Pa.C.S. Chs. 7 (relating to |
8 | open meetings) and 11 (relating to ethics standards and |
9 | financial disclosure). |
10 | § 9105. Duties of board. |
11 | (a) Duties.--The board shall do all of the following: |
12 | (1) Meet as often as necessary but at least annually. |
13 | (2) Adopt guidelines establishing the procedure by which |
14 | a public entity may submit a request for a transportation |
15 | project or a private entity may submit an unsolicited plan |
16 | for a transportation project to the board. |
17 | (3) Consult with persons affected by proposed |
18 | transportation projects. |
19 | (4) Evaluate and, where the board finds that the |
20 | requests or plans for transportation projects are in the best |
21 | interests of the Commonwealth and a public entity, approve |
22 | the requests or plans for transportation projects. The board |
23 | shall approve a proposed transportation project by adopting a |
24 | resolution. |
25 | (5) Submit an annual report to the General Assembly |
26 | detailing all transportation projects evaluated and |
27 | resolutions adopted. |
28 | (b) Actions.--Actions by the board are a determination of |
29 | public policy and public interest and shall not be considered |
30 | adjudications under 2 Pa.C.S. Chs. 5 Subch. A (relating to |
|
1 | practice and procedure of Commonwealth agencies) and 7 Subch. A |
2 | (relating to judicial review of Commonwealth agency action) and |
3 | shall not be appealable to the department or a court of law. |
4 | (c) General Assembly.--The following shall apply: |
5 | (1) The General Assembly may, within 30 calendar days or |
6 | 12 legislative days, whichever is longer, of the adoption of |
7 | the resolution under subsection (a)(4), pass a concurrent |
8 | resolution rescinding the approval of a transportation |
9 | project if the transportation facility which is the subject |
10 | of the transportation project is owned by the Commonwealth. |
11 | (2) If the General Assembly adopts the concurrent |
12 | resolution within the time period under paragraph (1) by |
13 | majority vote in both the Senate and the House of |
14 | Representatives, the transportation project shall be deemed |
15 | disapproved. |
16 | (3) If the General Assembly fails to adopt the |
17 | concurrent resolution by majority vote in both the Senate and |
18 | the House of Representatives within the time period under |
19 | paragraph (1), the transportation project shall be deemed |
20 | approved. |
21 | § 9106. Operation of board. |
22 | (a) Technical assistance.--The department shall supply all |
23 | necessary assistance to assist the board in carrying out its |
24 | duties and responsibilities, including retention of legal, |
25 | financial and technical consultants to assist with this role. |
26 | (b) Analysis.--The department shall develop a detailed |
27 | analysis of a request or recommendation prior to approval by the |
28 | board. |
29 | (c) Oversight.--If a transportation project becomes a |
30 | public-private transportation project, the department shall |
|
1 | retain oversight and monitor the public-private transportation |
2 | project, including periodic reports to the board, as necessary. |
3 | § 9107. Solicitations for transportation projects. |
4 | A public entity may solicit transportation projects through a |
5 | request for transportation projects. The public entity shall |
6 | give public notice of a request for transportation projects |
7 | consistent with section 9110(c) (relating to selection of |
8 | development entities). Offerors shall submit their responses to |
9 | the public entity in the form and manner required by the request |
10 | for transportation projects. A public entity shall evaluate each |
11 | response to determine if the response is in the best interest of |
12 | the public entity. Upon being satisfied, the public entity may |
13 | prepare and submit a request to the board to review the |
14 | transportation project in accordance with this chapter. |
15 | § 9108. Transportation projects. |
16 | (a) Submission.--Except as provided under subsection (b), a |
17 | public entity which seeks to undertake a transportation project |
18 | which has not been previously approved by the board shall submit |
19 | a request for the transportation project to the board. |
20 | (b) Exception.--This section shall not apply to a |
21 | transportation project which a public entity is authorized to |
22 | undertake prior to the effective date of this subsection. |
23 | § 9109. Requests. |
24 | A request may be solicited or unsolicited and may provide for |
25 | the development or operation of transportation facilities using |
26 | a variety of project delivery methods and forms of agreement. |
27 | The methods may include: |
28 | (1) Predevelopment agreements leading to other |
29 | implementing agreements. |
30 | (2) A design-build agreement. |
|
1 | (3) A design-build-operate agreement. |
2 | (4) A design-build-maintain agreement. |
3 | (5) A design-build-finance-operate agreement. |
4 | (6) A design-build-operate-maintain agreement. |
5 | (7) A design-build-finance-operate-maintain agreement. |
6 | (8) An operate-maintain agreement. |
7 | (9) A concession providing for the development entity to |
8 | design, build, operate, maintain, manage or lease a |
9 | transportation facility. |
10 | (10) Any other innovative or nontraditional project |
11 | delivery method or agreement or combination of methods or |
12 | agreements that the public entity determines will address the |
13 | transportation needs of the Commonwealth and the public |
14 | entity and serve the public interest. |
15 | § 9110. Selection of development entities. |
16 | (a) Conditions for use.--If a transportation project is |
17 | approved under section 9105 (relating to duties of board), the |
18 | public entity may enter into a contract for the transportation |
19 | project by competitive sealed proposals. |
20 | (b) Request for proposals.--After receiving the |
21 | determination required by subsection (a), a public entity shall |
22 | solicit proposals through a request for proposals. |
23 | (c) Public notice.--A public entity shall give public notice |
24 | of a request for proposals consistent with regulations adopted |
25 | by the department. The notice shall be given a reasonable time |
26 | prior to the date set for the close of receipt of the proposals. |
27 | The method of public notice may include any of the following: |
28 | (1) Electronic publication which is accessible to the |
29 | general public. |
30 | (2) Advertisement as provided for in 45 Pa.C.S. § 306 |
|
1 | (relating to use of trade publications). |
2 | (3) Issuance of request for proposals to offerors on the |
3 | mailing list of the public entity. |
4 | (4) Publication in a newspaper of general circulation. |
5 | (5) Where prequalification is a requirement of |
6 | submitting a proposal, notification to all private entities |
7 | who have been prequalified by the public entity. |
8 | (d) Copies of request for proposal.--Copies of a request for |
9 | proposals shall be made available to any interested person upon |
10 | request to the public entity. A public entity may establish |
11 | procedures for the distribution of a request for proposals, |
12 | including the imposition of a fee to reimburse the public entity |
13 | for the costs of photocopying and mailing. |
14 | (e) Receipt of proposals.--Offerors shall submit their |
15 | proposals to ensure that their proposals are received prior to |
16 | the time and date established for receipt of the proposals. |
17 | Proposals shall be submitted in the format required by the |
18 | request for proposals. Proposals shall be opened so as to avoid |
19 | disclosure of their contents to competing offerors. |
20 | (f) Evaluation.--A public entity shall evaluate each |
21 | proposal to determine which proposal has the best value for and |
22 | is in the best interest of the public entity. In making this |
23 | determination, a public entity may consider any of the |
24 | following: |
25 | (1) Cost. |
26 | (2) Price. |
27 | (3) Financial commitment. |
28 | (4) Innovative financing. |
29 | (5) Bonding. |
30 | (6) Technical, scientific, technological or |
|
1 | socioeconomic merit. |
2 | (7) Financial strength and viability. |
3 | (8) Design, operation and feasibility of the |
4 | transportation project. |
5 | (9) Public reputation, qualifications, industry |
6 | experience and financial capacity of the private entity. |
7 | (10) The ability of the transportation project to |
8 | improve economic growth, to improve public safety, to reduce |
9 | congestion, to increase capacity or to rehabilitate, |
10 | reconstruct or expand an existing transportation facility. |
11 | (11) The compatibility of the proposal with existing |
12 | local and regional land use plans. |
13 | (12) The commitment of local communities to approve land |
14 | use plans in preparation for the transportation project. |
15 | (13) Other factors deemed appropriate by the public |
16 | entity. |
17 | (g) Weighted consideration.--The relative importance of each |
18 | evaluation factor shall be fixed prior to opening the proposals. |
19 | (h) Participation in evaluation.--If the public entity is |
20 | the Commonwealth, the department is required to invite its |
21 | comptroller to participate in the evaluation as a nonvoting |
22 | member of any evaluation committee. No individual who has been |
23 | employed by an offeror within the last two years may participate |
24 | in the evaluation of proposals. |
25 | (i) Discussion with responsible offerors and revision of |
26 | proposals.--As provided in the request for proposals, |
27 | discussions and negotiations may be conducted with responsible |
28 | offerors for the purpose of clarification and of obtaining best |
29 | and final offers. Responsible offers shall be accorded fair and |
30 | equal treatment with respect to any opportunity for discussion |
|
1 | and revision of proposals. In conducting discussions, there |
2 | shall be no disclosure of any information derived from proposals |
3 | submitted by competing offerors. |
4 | (j) Selection for negotiation.--The responsible offeror |
5 | whose proposal is determined in writing to be the best value for |
6 | and in the best interests of the public entity, taking into |
7 | consideration all evaluation factors, shall be selected for |
8 | contract negotiation. |
9 | (k) Cancellation.--A request for proposals may be canceled |
10 | at any time prior to the time a public-private transportation |
11 | partnership agreement is executed by all parties when it is in |
12 | the best interests of the public entity. |
13 | (l) Award.--Upon reaching an agreement with a responsible |
14 | offeror, a public entity shall enter into a public-private |
15 | transportation partnership agreement with the responsible |
16 | offeror. The public-private transportation partnership agreement |
17 | shall be consistent with the requirements of this chapter. If |
18 | agreement cannot be reached with the best qualified responsible |
19 | offeror, then negotiations will be formally terminated with the |
20 | offeror. If proposals were submitted by one or more other |
21 | responsible offerors, negotiations may be conducted with the |
22 | other responsible offeror or responsible offerors in the order |
23 | of their respective qualification ranking. The contract may be |
24 | awarded to the responsible offeror then ranked as best |
25 | qualified. |
26 | (m) Resolution of controversies involving the |
27 | Commonwealth.--If a prospective offeror, offeror or development |
28 | entity is aggrieved by a selection under this section and the |
29 | public entity or proprietary public entity in the invitation or |
30 | contract is the Commonwealth, the prospective offeror, offeror |
|
1 | or development entity may file a protest or a claim, as |
2 | appropriate, in accordance with 62 Pa.C.S. Ch. 17 (relating to |
3 | legal and contractual remedies). |
4 | (n) Resolution of controversies not involving the |
5 | Commonwealth.--If a prospective offeror, offeror or development |
6 | entity is aggrieved by a selection under this section and the |
7 | public entity or proprietary public entity in the invitation or |
8 | contract is an entity other than the Commonwealth, a prospective |
9 | offeror, offeror or development entity may file a protest or a |
10 | claim, as appropriate, with the court of common pleas where the |
11 | public entity or proprietary public entity is located. The |
12 | processes for the filing and resolution of protests and the |
13 | filing and resolution of claims, including rights, contents, |
14 | timing, evaluation, determination and remedies, which are |
15 | established in 62 Pa.C.S. Ch. 17, shall apply insofar as they |
16 | are practicable. |
17 | § 9111. Public-private transportation partnership agreement. |
18 | (a) Agreement provisions.--A public-private transportation |
19 | partnership agreement shall include the following provisions: |
20 | (1) A description of any planning, development, design, |
21 | leasing, acquisition or interest in, financing, installation, |
22 | construction, reconstruction, replacement, expansion, |
23 | operation, maintenance, improvement, equipping, modification, |
24 | expansion, enlargement, management, running, control and |
25 | operation of the public-private transportation project. |
26 | (2) The term of the public-private transportation |
27 | partnership agreement. |
28 | (3) The type of property interest or other relationship |
29 | the development entity will have in or with respect to the |
30 | public-private transportation partnership project, including |
|
1 | acquisition of rights-of-way and other property interests |
2 | that may be required. |
3 | (4) Authorization for the proprietary public entity or |
4 | its authorized representatives to inspect all assets and |
5 | properties of the public-private transportation project and |
6 | all books and records of the development entity relating to |
7 | the public-private transportation project to review the |
8 | development entity's performance under the public-private |
9 | transportation partnership agreement. |
10 | (5) Grounds for termination of the public-private |
11 | transportation partnership agreement by the parties. |
12 | (6) Procedures for amendment of the public-private |
13 | transportation partnership agreement. |
14 | (7) The rights and remedies available in the event of |
15 | breach, default or delay. |
16 | (8) Requirements for a private development entity to |
17 | provide performance and payment bonds, parent company |
18 | guarantees, letters of credit or other acceptable forms of |
19 | security in an amount acceptable to the proprietary public |
20 | entity. |
21 | (9) A requirement that ownership of a transportation |
22 | facility acquired or constructed go to or remain with the |
23 | proprietary public entity. |
24 | (10) Standards for construction, maintenance and |
25 | operation of the public-private transportation project if the |
26 | activities are to be performed by the development entity. |
27 | (11) Standards for capital improvement or modification |
28 | of the public-private transportation project if they are to |
29 | be made by the development entity. |
30 | (12) Standards relating to how payments, if any, are to |
|
1 | be made by the proprietary public entity to the development |
2 | entity, including availability payments, performance-based |
3 | payment and payments of money and revenue-sharing with the |
4 | development entity. |
5 | (13) Standards relating to how the parties will allocate |
6 | and share management of the risks of the public-private |
7 | transportation project. |
8 | (14) Standards relating to how the parties will allocate |
9 | costs of development of the public-private transportation |
10 | project, including any cost overruns. |
11 | (15) Standards relating to damages to be assessed for |
12 | nonperformance, specifying remedies available to the parties |
13 | and dispute resolution procedures. |
14 | (16) Standards relating to performance criteria and |
15 | incentives. |
16 | (17) A requirement that upon termination of the public- |
17 | private transportation partnership agreement, a |
18 | transportation facility that was the subject of the public- |
19 | private transportation partnership agreement must be in a |
20 | state of proper maintenance and repair and shall be returned |
21 | to the proprietary public entity in satisfactory condition at |
22 | no further cost to the proprietary public entity. |
23 | (18) Provisions for law enforcement related to the |
24 | public-private transportation project. |
25 | (19) An obligation of the development entity to offer |
26 | employment to any employee of the proprietary public entity |
27 | who would lose employment due to the execution of the public- |
28 | private transportation partnership agreement and who is in |
29 | good standing at the time of execution of the public-private |
30 | transportation partnership agreement, including salary, |
|
1 | retirement, health and welfare and benefits which are |
2 | substantially identical to the benefits received by the |
3 | employees immediately prior to execution of the public- |
4 | private transportation partnership agreement for the term of |
5 | the collective bargaining agreement of those employees in |
6 | effect. |
7 | (20) Other terms and provisions as required under this |
8 | chapter or agreed to by the development entity and the |
9 | proprietary public entity. |
10 | (b) Term.--The proprietary public entity may enter into a |
11 | public-private transportation partnership agreement with any |
12 | development entity that includes the provisions under subsection |
13 | (a) for a term not to exceed 99 years. |
14 | (c) Public partner.--Nothing in this chapter shall prohibit |
15 | the department from entering into a public-private |
16 | transportation partnership agreement with another Commonwealth |
17 | agency in accordance with this chapter. |
18 | (d) Public entity.--Nothing in this chapter shall prohibit a |
19 | public entity from entering into a public-private transportation |
20 | partnership agreement with one or more public entities in |
21 | accordance with this chapter. |
22 | (e) Environmental costs.-- |
23 | (1) A proprietary public entity may provide in a public- |
24 | private transportation partnership agreement that it will pay |
25 | or reimburse, on terms that it deems appropriate, the |
26 | development entity for actual costs associated with necessary |
27 | remediation for existing environmental contaminants located |
28 | on, under or emanating from the real property associated with |
29 | a public-private transportation project as of the date the |
30 | development entity assumes responsibility for the public- |
|
1 | private transportation project. If the public-private |
2 | transportation partnership agreement provides for |
3 | environmental remediation, the public-private transportation |
4 | partnership agreement shall require that the proprietary |
5 | public entity be given: |
6 | (i) Prompt notice of any claim against the |
7 | proprietary public entity or a third party pertaining to |
8 | the contaminants. |
9 | (ii) The right to elect to undertake the necessary |
10 | remediation. |
11 | (iii) The right to participate in the defense of or |
12 | response to any claim. |
13 | (iv) The right of prior approval before the |
14 | development entity may settle any claim. |
15 | (2) No payment by a proprietary public entity under this |
16 | section may be for anything other than actual costs incurred |
17 | by a development entity to remediate the environmental |
18 | contamination on, under or emanating from the real property |
19 | associated with the public-private transportation project as |
20 | of the date the development entity assumes responsibility for |
21 | the public-private transportation project. |
22 | (f) User fees.--A provision establishing whether user fees |
23 | will be collected for use of the public-private transportation |
24 | project and the basis by which any user fees will be collected |
25 | shall be determined in the public-private transportation |
26 | partnership agreement. If a user fee is proposed as part of the |
27 | public-private transportation project, a proprietary public |
28 | entity shall include provisions in the agreement that authorize |
29 | the collection of user fees, tolls, fares or similar charges, |
30 | including provisions that: |
|
1 | (1) Specify technology to be used in the public-private |
2 | transportation project. |
3 | (2) Establish circumstances under which the proprietary |
4 | public entity may receive a share of revenues from the |
5 | charges. |
6 | (3) Govern the enforcement of electronic tolls, |
7 | including provisions for use of available technology. |
8 | (4) Establish payment collection standards, including |
9 | provisions for enforcement of nonpayment and penalties. |
10 | (5) In the event an operator of a vehicle fails to pay |
11 | the prescribed toll or user fee at any location on a public- |
12 | private transportation project where tolls or user fees are |
13 | collected by means of an electronic or other automated or |
14 | remote form of collection, the collection provisions of |
15 | section 8117 (relating to electronic toll collection) shall |
16 | apply except that the development entity shall possess all of |
17 | the rights, roles, limitations and responsibilities of the |
18 | Pennsylvania Turnpike Commission. |
19 | (g) Amounts received under a public-private transportation |
20 | partnership agreement.--The net proceeds received by the |
21 | proprietary public entity under a public-private transportation |
22 | partnership agreement shall be available exclusively to provide |
23 | funding for transportation needs in this Commonwealth. The use |
24 | of the proceeds or other revenues from the public-private |
25 | transportation project shall comply with Federal or State law |
26 | restricting or limiting the use of revenue from the public- |
27 | private transportation project based on its public funding. |
28 | § 9112. Records of requests. |
29 | Notwithstanding the Right-to-Know Law, the following shall |
30 | apply: |
|
1 | (1) Upon the selection of a development entity to be a |
2 | party to a public-private transportation partnership |
3 | agreement, the identity of the development entity selected, |
4 | the contents of the response of the development entity to the |
5 | request for proposals, the final proposal submitted by the |
6 | development entity and the form of the public-private |
7 | transportation partnership agreement shall be made public. |
8 | Any financial information of a development entity that was |
9 | requested in the request for proposals or during discussions |
10 | and negotiations to demonstrate the economic capability of a |
11 | development entity to fully perform the requirements of the |
12 | public-private transportation partnership agreement shall not |
13 | be subject to public inspection. |
14 | (2) A proprietary public and a private development |
15 | entity may agree, in their discretion, to make public any |
16 | information described under paragraph (1) that would not |
17 | otherwise be subject to public inspection. |
18 | (3) If a proprietary public entity terminates a public- |
19 | private transportation partnership agreement for default, |
20 | rejects a private entity on the grounds that the private |
21 | entity is not responsible or suspends or debars a development |
22 | entity, the private entity or development entity, as |
23 | appropriate, shall, upon written request, be provided with a |
24 | copy of the information contained in the file of the private |
25 | entity or development entity maintained by the proprietary |
26 | public entity under a contractor responsibility program. |
27 | (4) The following information shall not be subject to |
28 | the Right-to-Know Law: |
29 | (i) Information relating to proprietary information, |
30 | trade secrets, patents or exclusive licenses, |
|
1 | architectural and engineering plans and information |
2 | relating to competitive marketing materials and |
3 | strategies. |
4 | (ii) Security information, including risk prevention |
5 | plans, detection and countermeasures, emergency |
6 | management plans, security and surveillance plans, |
7 | equipment and usage protocols and countermeasures. |
8 | (iii) Records considered nonpublic matters or |
9 | information by the Securities and Exchange Commission |
10 | under 17 CFR 200.80 (relating to commission records and |
11 | information). |
12 | (iv) Any financial information deemed confidential |
13 | by the proprietary public entity upon a showing of good |
14 | cause by the offeror or development entity. |
15 | § 9113. Use of intellectual property. |
16 | Unless otherwise agreed and except to the extent not |
17 | transferable by law, the department or a proprietary public |
18 | entity shall have the right to use all or a portion of a |
19 | submitted proposal, including the technologies, techniques, |
20 | methods, processes and information contained in the proposal. |
21 | Notice of nontransferability by law shall be given to the |
22 | department and the proprietary public entity in response to the |
23 | request for proposals. |
24 | § 9114. Police powers and violations of law. |
25 | (a) Enforcement of traffic laws.--To the extent the public- |
26 | private transportation project is a highway, bridge, tunnel |
27 | overpass or similar transportation facility for motor vehicles, |
28 | 75 Pa.C.S. (relating to vehicles) and other laws of this |
29 | Commonwealth or, if applicable, any local jurisdiction shall be |
30 | the same as those applying to conduct on similar transportation |
|
1 | facilities in this Commonwealth or the local jurisdiction. |
2 | Punishment for offenses shall be prescribed by law for conduct |
3 | occurring on similar transportation facilities in this |
4 | Commonwealth or the local jurisdiction. |
5 | (b) Arrest powers.--All officers authorized by law to make |
6 | arrests for violations of law in this Commonwealth shall have |
7 | the same powers, duties and jurisdiction within the limits of a |
8 | public-private transportation project as they have in their |
9 | respective areas of jurisdiction. The grant of authority under |
10 | this section shall not extend to the private offices, buildings, |
11 | garages and other improvements of a development entity to any |
12 | greater degree than the police power extends to any other |
13 | private offices, buildings, garages and other improvements. |
14 | § 9115. Environmental and other authorizations. |
15 | (a) The Administrative Code of 1929.--Notwithstanding any |
16 | other provision of law, neither soliciting nor approving a |
17 | request for proposals, nor executing a public-private |
18 | transportation partnership agreement under this chapter shall |
19 | constitute the submission of a preliminary plan or design to the |
20 | department under section 2002(b) of the act of April 9, 1929 |
21 | (P.L.177, No.175), known as The Administrative Code of 1929. |
22 | (b) Environmental authorizations.--A public-private |
23 | transportation partnership agreement may require that prior to |
24 | commencing any construction in connection with the development, |
25 | operation or financing of any public-private transportation |
26 | project if the agreement requires environmental authorizations |
27 | to be obtained, the development entity shall do any of the |
28 | following: |
29 | (1) Secure all necessary environmental permits and |
30 | authorizations and, if specified under the act of May 19, |
|
1 | 1995 (P.L.4, No.2), known as the Land Recycling and |
2 | Environmental Remediation Standards Act, obtain the approval |
3 | of the Department of Environmental Protection. |
4 | (2) Complete environmental remediation of the site on |
5 | which the public-private transportation project is to be |
6 | located, including acts required under any agreement entered |
7 | into with the Department of Environmental Protection for |
8 | remediation of the site under the Land Recycling and |
9 | Environmental Remediation Standards Act. |
10 | § 9116. Taxation of development entity. |
11 | (a) General rule.--To the extent that revenues or user fees |
12 | received by a development entity pursuant to a public-private |
13 | transportation partnership agreement are subject to a tax |
14 | imposed by a political subdivision prior to the effective date |
15 | of this section, the revenues or user fees shall continue to be |
16 | subject to the tax and to future increases in the rate of the |
17 | tax. |
18 | (b) New taxation barred.--After the effective date of this |
19 | section, no new tax shall be imposed by a political subdivision |
20 | or the Commonwealth on the revenues or user fees received by a |
21 | development entity pursuant to a public-private transportation |
22 | partnership agreement. |
23 | (c) Realty transfer tax.--No public-private transportation |
24 | partnership agreement, lease, concession, franchise or other |
25 | contract involving real property of a public-private |
26 | transportation project shall be subject to a Commonwealth or |
27 | local realty transfer tax imposed under the act of December 31, |
28 | 1965 (P.L.1257, No.511), known as The Local Tax Enabling Act, |
29 | the act of March 4, 1971 (P.L.6, No.2), known as the Tax Reform |
30 | Code of 1971, or a successor statute. |
|
1 | (d) Property.--Property used in connection with a public- |
2 | private transportation project shall be considered public |
3 | property and shall be exempt from ad valorem property taxes and |
4 | special assessments levied against property by the Commonwealth |
5 | or any political subdivision. |
6 | § 9117. Power of eminent domain. |
7 | The exercise of the power of eminent domain by any condemnor |
8 | to acquire property for public-private transportation project |
9 | purposes under a public-private transportation partnership |
10 | agreement shall be considered a taking for a public purpose and |
11 | not for a private purpose or for private enterprise. |
12 | § 9118. Sovereign immunity. |
13 | Under section 11 of Article 1 of the Constitution of |
14 | Pennsylvania, it is declared to be the intent of the General |
15 | Assembly that the Commonwealth, and its officials and employees |
16 | and a municipal authority, and its officials and employees, |
17 | acting within the scope of their duties, shall continue to enjoy |
18 | sovereign immunity and official immunity and remain immune from |
19 | suit except as provided in section 9119 (relating to specific |
20 | performance). A claim against the Commonwealth and its officials |
21 | and employees or municipal authority and its officials and |
22 | employees shall be brought only in such manner and in such |
23 | courts and in such cases as directed by the provision of section |
24 | 9111(e) (relating to public-private transportation partnership |
25 | agreement), 42 Pa.C.S. Ch. 85 (relating to matters affecting |
26 | government units), 62 Pa.C.S. Ch. 17 (relating to legal and |
27 | contractual remedies) or any procurement law applicable to a |
28 | municipal authority. |
29 | § 9119. Specific performance. |
30 | A proprietary public entity is authorized to agree that |
|
1 | specific performance shall be available to a development entity |
2 | as a remedy for a breach by the proprietary public entity of its |
3 | representations, covenants, warranties or other obligations |
4 | under the public-private transportation partnership agreement to |
5 | the extent set forth in the public-private transportation |
6 | partnership agreement. |
7 | § 9120. Additional provisions. |
8 | To the extent applicable, all provisions of law shall apply |
9 | to a contract entered into between a proprietary public entity |
10 | and a development entity related to the development, operation |
11 | or financing of a public-private transportation project under |
12 | this chapter. This section includes: |
13 | (1) 62 Pa.C.S. § 107 (relating to reciprocal |
14 | limitations). |
15 | (2) 62 Pa.C.S. § 531 (relating to debarment or |
16 | suspension). |
17 | (3) 62 Pa.C.S. § 541 (relating to approval of accounting |
18 | system). |
19 | (4) 62 Pa.C.S. § 551 (relating to right to inspect |
20 | plant). |
21 | (5) 62 Pa.C.S. § 552 (relating to right to audit |
22 | records). |
23 | (6) 62 Pa.C.S. § 563 (relating to retention of |
24 | procurement records). |
25 | (7) The act of August 15, 1961 (P.L.987, No.442), known |
26 | as the Pennsylvania Prevailing Wage Act. |
27 | § 9121. Adverse interest. |
28 | (a) Private entity adverse interests.--The following shall |
29 | apply: |
30 | (1) Except as provided under paragraph (2), a private |
|
1 | entity which submits a response to a request for proposals |
2 | under section 9110 (relating to selection of development |
3 | entities), a request for transportation projects under |
4 | section 9107 (relating to solicitations for transportation |
5 | projects) or an unsolicited proposal, and which is also a |
6 | State adviser or a State consultant for the department or the |
7 | Pennsylvania Turnpike Commission, shall not be deemed to be |
8 | in violation of the State Adverse Interest Act while engaging |
9 | in any of the following activities: |
10 | (i) Preparing or submitting a response to a request |
11 | for proposals or transportation projects. |
12 | (ii) Participating in any activity with the |
13 | department related to a request for proposals or |
14 | transportation projects. |
15 | (iii) Negotiating and entering into any contract |
16 | lease or public-private transportation partnership |
17 | agreement which results from a request for proposals or |
18 | transportation projects. |
19 | (iv) Engaging in any other action taken in |
20 | furtherance of the purposes of this chapter. |
21 | (2) A private entity which submits a response to a |
22 | request for proposals or transportation projects or acts as a |
23 | consultant or an adviser to a private entity which submits a |
24 | response to a request for proposals or transportation |
25 | projects to the department shall be prohibited from |
26 | consulting or providing advice to the department on the |
27 | review or approval of the response to the request for |
28 | proposals or transportation projects as submitted. |
29 | (3) A private entity which submits a response to a |
30 | request for proposals or transportation projects or acts as a |
|
1 | consultant or an advisor to a private entity which submits a |
2 | response to a request for proposals or transportation |
3 | projects to the board shall be prohibited from consulting or |
4 | providing advice to the department on the review or approval |
5 | of the response to the request for proposals or |
6 | transportation projects so submitted. |
7 | (b) Definitions.--As used in this section, the following |
8 | words and phrases shall have the meanings given to them in this |
9 | subsection unless the context clearly indicates otherwise: |
10 | "State adviser." As defined in section 2(7) of the act of |
11 | July 19, 1957 (P.L.1017, No.451), known as the State Adverse |
12 | Interest Act. |
13 | "State consultant." As defined in section 2(9) of the act of |
14 | July 19, 1957 (P.L.1017, No.451), known as the State Adverse |
15 | Interest Act. |
16 | § 9122. Federal, State, local and private assistance. |
17 | (a) Federal assistance.--The following shall apply: |
18 | (1) The department or a proprietary public entity may |
19 | accept from the United States or any of its agencies funds |
20 | that are available to the Commonwealth for carrying out this |
21 | chapter, whether the funds are made available by grant, loan, |
22 | loan guarantee or otherwise. |
23 | (2) The department or a proprietary public entity is |
24 | authorized to assent to any Federal requirements, conditions |
25 | or terms of any Federal funding accepted by the department or |
26 | a proprietary public entity under this section. |
27 | (3) The department or a proprietary public entity may |
28 | enter into agreements or other arrangements with the United |
29 | States or any of its agencies as may be necessary for |
30 | carrying out the purposes of this chapter. |
|
1 | (b) Acceptance of grants and donations.--The department or a |
2 | proprietary public entity may accept from any source any grant, |
3 | donation, gift or other form of conveyance of land, money or |
4 | other real, personal or mixed property or other item of value |
5 | for carrying out the purpose of this chapter. |
6 | (c) Contributions.--Subject to acceptance and agreement |
7 | between the development entity and a proprietary public entity, |
8 | any public-private transportation project may be financed, in |
9 | whole or in part, by contribution of any funds or property made |
10 | by a proprietary public entity, a development entity or an |
11 | affected jurisdiction. |
12 | (d) Combination of funds.--The department or proprietary |
13 | public entity may combine Federal, State, local and private |
14 | funds to finance a public-private transportation project under |
15 | this chapter. |
16 | § 9123. Public-Private Transportation Account. |
17 | (a) Establishment.-- |
18 | (1) There is established within the Motor License Fund a |
19 | separate account to be known as the Public-Private |
20 | Transportation Account. |
21 | (2) Money in the account shall be used only for the |
22 | purposes enumerated under subsection (c). |
23 | (b) Deposits to account.--The following shall apply: |
24 | (1) The department shall deposit in the account the |
25 | following: |
26 | (i) All money received by the department pursuant to |
27 | the terms of a public-private transportation partnership |
28 | agreement under which the department is the proprietary |
29 | public entity. |
30 | (ii) Repayment of any loans from the account made |
|
1 | under this chapter. |
2 | (iii) Subject to the provisions of any public- |
3 | private transportation partnership agreement under which |
4 | the department is the proprietary public entity, monetary |
5 | damages and other amounts for failure by a development |
6 | entity to comply with the terms of the public-private |
7 | transportation partnership agreement. |
8 | (iv) Subject to the provisions of any public-private |
9 | transportation partnership agreement under which the |
10 | department is the proprietary public entity, payments |
11 | made from any insurance proceeds or reserve funds or |
12 | performance or payment bonds in connection with a public- |
13 | private transportation project. |
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 | (3) All money related to any public-private |
20 | transportation partnership agreement in which the department |
21 | is not the proprietary public entity shall not be held in the |
22 | account, but shall be held by the proprietary public entity |
23 | or its agent. |
24 | (c) Appropriation.--The funds in the account are |
25 | continuously appropriated to the department for the following |
26 | purposes: |
27 | (1) Paying the amounts as the department may be required |
28 | to repay the Federal Highway Administration. |
29 | (2) Paying all amounts designated by the department as |
30 | required for repayment or defeasance of outstanding bonds. |
|
1 | (3) Paying costs of maintenance, operating and financing |
2 | of transportation facilities in this Commonwealth which are |
3 | available for use by the public, including the costs of |
4 | insurance or reserves against risks of contingencies. |
5 | (4) Paying expenses incurred under or in connection with |
6 | any public-private transportation partnership agreement by |
7 | the department, including professional fees and expenses. |
8 | (5) Paying the costs of the department relating to |
9 | performing and administering duties under this chapter. |
10 | (6) Paying all expenses approved by the board for its |
11 | costs incurred to perform its duties, including paying |
12 | professional fees and expenses. |
13 | (7) Paying costs of any purpose authorized under this |
14 | chapter. |
15 | (d) Amounts received.--The net proceeds received under a |
16 | public-private transportation partnership agreement shall be |
17 | available exclusively to provide funding for transportation |
18 | needs in this Commonwealth. The use of the proceeds or other |
19 | revenues from the public-private transportation project shall be |
20 | in accord with Federal or State law restricting or limiting the |
21 | use of revenue from the public-private transportation project |
22 | based on its public funding. |
23 | § 9124. Pennsylvania Turnpike Commission. |
24 | The Pennsylvania Turnpike Commission may not enter into a |
25 | public-private transportation partnership agreement in the |
26 | capacity of a proprietary public entity with respect to granting |
27 | substantial oversight and control over the Turnpike Mainline to |
28 | another entity unless specific authority is granted through an |
29 | act of law passed by the General Assembly. However, this shall |
30 | not restrict the Pennsylvania Turnpike Commission from entering |
|
1 | into a public-private transportation partnership agreement under |
2 | this chapter or under other statutes which does not involve |
3 | granting substantial oversight and control over the Turnpike |
4 | Mainline to another entity. |
5 | § 9125. Regulations. |
6 | (a) Department.--In order to facilitate the implementation |
7 | of this chapter, the department is authorized to promulgate |
8 | regulations or publish guidelines that include the following: |
9 | (1) The process for review of a request for proposals or |
10 | transportation projects or responses to requests for |
11 | proposals or transportation projects issued by a public |
12 | entity. |
13 | (2) The process for receipt and review of and response |
14 | to competing responses to requests for proposals or |
15 | transportation projects. |
16 | (3) The type and amount of information that is necessary |
17 | for adequate review of and response to each stage of review |
18 | of a proposal or transportation project. |
19 | (4) Any other provisions which are required under this |
20 | chapter or which the department determines are appropriate |
21 | for implementation of this chapter. |
22 | (b) Temporary regulations.--Notwithstanding any other |
23 | provision of law, any regulation promulgated by the department |
24 | under this chapter during the two years following the effective |
25 | date of this section shall be deemed temporary regulations which |
26 | shall expire no later than three years following the effective |
27 | date of this section or upon promulgation of final regulations. |
28 | The temporary regulations shall not be subject to any of the |
29 | following: |
30 | (1) Sections 201, 202, 203 and 204 of the act of July |
|
1 | 31, 1968 (P.L.769, No.240), referred to as the Commonwealth |
2 | Documents Law. |
3 | (2) The act of June 25, 1982 (P.L.633, No.181), known as |
4 | the Regulatory Review Act. |
5 | Section 2. Repeals are as follows: |
6 | (1) The General Assembly declares that the repeal under |
7 | paragraph (2) is necessary to effectuate the addition of 74 |
8 | Pa.C.S. Ch. 91. |
9 | (2) Section 3 of the act of May 29, 1945 (P.L.1108, |
10 | No.402), referred to as the Limited Access Highway Law, is |
11 | repealed insofar as it is inconsistent with the addition of |
12 | 74 Pa.C.S. Ch. 91. |
13 | Section 3. This act shall take effect as follows: |
14 | (1) The addition of 74 Pa.C.S. §§ 9103, 9104, 9105, 9106 |
15 | and 9125 shall take effect immediately. |
16 | (2) This section shall take effect immediately. |
17 | (3) The remainder of this act shall take effect in 60 |
18 | days. |
|