PRINTER'S NO. 844
No. 555 Session of 2007
INTRODUCED BY GEIST, MARKOSEK, PERZEL, McCALL, GERBER, BEAR, BENNINGHOFF, BEYER, BIANCUCCI, BOYD, CALTAGIRONE, CAPPELLI, CARROLL, CIVERA, COX, CURRY, DENLINGER, DePASQUALE, DERMODY, FRANKEL, GALLOWAY, GERGELY, GRELL, HENNESSEY, KILLION, LEACH, MARSICO, R. MILLER, MOYER, MUSTIO, PAYNE, PICKETT, PYLE, RAPP, REICHLEY, ROEBUCK, ROHRER, RUBLEY, SAYLOR, SCHRODER, SIPTROTH, SONNEY, SWANGER AND TURZAI, MARCH 19, 2007
REFERRED TO COMMITTEE ON TRANSPORTATION, MARCH 19, 2007
AN ACT 1 Amending Title 74 (Transportation) of the Pennsylvania 2 Consolidated Statutes, establishing public-private 3 transportation partnerships; conferring powers and duties on 4 the Pennsylvania Public Utility Commission, the State 5 Transportation Commission and the Department of 6 Transportation; and establishing the Public-Private 7 Transportation Partnership Fund. 8 The General Assembly of the Commonwealth of Pennsylvania 9 hereby enacts as follows: 10 Section 1. Title 74 of the Pennsylvania Consolidated 11 Statutes is amended by adding a part to read: 12 PART V 13 PUBLIC-PRIVATE TRANSPORTATION PARTNERSHIPS 14 Chapter 15 91. Preliminary Provisions 16 92. Public-Private Transportation Partnerships 17 CHAPTER 91 18 PRELIMINARY PROVISIONS
1 Sec. 2 9101. Scope of part. 3 9102. Declaration of policy. 4 9103. Construction of part. 5 § 9101. Scope of part. 6 This part relates to public-private transportation 7 partnerships. 8 § 9102. Declaration of policy. 9 (a) Legislative findings.--The General Assembly finds and 10 declares as follows: 11 (1) There exists a public need for the timely 12 development and operation of transportation facilities within 13 this Commonwealth which address the needs of Commonwealth, 14 regional or local transportation by improving safety, 15 reducing congestion, abating environmental pollution, 16 advancing energy efficiency or conservation, improving 17 homeland security and increasing capacity or enhancing 18 economic efficiency. 19 (2) This public need may not be wholly satisfied through 20 the use of currently existing methods of financing and 21 procurement in which transportation facilities are developed 22 or operated. 23 (3) Authorizing private entities to develop and operate 24 transportation facilities may result in the availability of 25 these transportation facilities to the public in a more 26 timely, more efficient or less costly fashion, thereby 27 serving the public safety and welfare. 28 (b) Intent.--It is the intent of this part: 29 (1) to encourage investment in this Commonwealth by 30 private entities to assist in the development and operation 20070H0555B0844 - 2 -
1 of transportation facilities; and 2 (2) to accomplish the goal under paragraph (1), to 3 provide public entities and private entities with the 4 greatest possible flexibility in contracting with each other 5 for the provision of the public services which are the 6 subject of this title. 7 § 9103. Construction of part. 8 (a) Liberal construction.--This part shall be liberally 9 construed in conformity with and to accomplish section 9102 10 (relating to declaration of policy). 11 (b) Sole authority.--This part provides public-private 12 transportation partnership opportunities to public entities and 13 private entities and shall be construed as the sole statutory 14 authority enabling a public entity to participate with a private 15 entity in a transportation-related contract, project or activity 16 governed by this part. 17 CHAPTER 92 18 PUBLIC-PRIVATE TRANSPORTATION PARTNERSHIPS 19 Sec. 20 9201. Definitions. 21 9202. Prerequisite for operation. 22 9203. Approval. 23 9204. Service contracts. 24 9205. Transfer and dedication of public property. 25 9206. Powers, duties and liability of private entity. 26 9207. Interim agreement. 27 9208. Comprehensive agreement. 28 9209. Multiple affected public entities. 29 9210. Federal, Commonwealth and local assistance. 30 9211. Financing. 20070H0555B0844 - 3 -
1 9212. Material default; remedies. 2 9213. Eminent domain. 3 9214. Public utility crossings. 4 9215. Police powers; violations of law. 5 9216. Transfer of assets. 6 9217. Procurement. 7 9218. Public-Private Transportation Partnership Fund. 8 § 9201. Definitions. 9 Subject to additional definitions contained in subsequent 10 provisions of this part which are applicable to specific 11 provisions of this part, the following words and phrases when 12 used in this part shall have the meanings given to them in this 13 section unless the context clearly indicates otherwise: 14 "Affected jurisdiction." A county, city, borough, 15 incorporated town, township or local, regional or metropolitan 16 transportation organization: 17 (1) in which all or a portion of a qualifying 18 transportation facility is located; or 19 (2) which is directly affected by the qualifying 20 transportation facility. 21 "Affected public entity." A public entity which owns a 22 proposed qualifying transportation facility or a qualifying 23 transportation facility, including, but not limited to: 24 (1) A metropolitan transportation authority under 74 25 Pa.C.S. Ch. 17 (relating to metropolitan transportation 26 authorities). 27 (2) The Delaware River Port Authority. 28 (3) The Delaware River Joint Toll Bridge Commission. 29 (4) A second class county port authority. 30 (5) The Pennsylvania Turnpike Commission. 20070H0555B0844 - 4 -
1 The term does not include a Commonwealth agency unless 2 specifically enumerated in this definition. 3 "Commission." The Pennsylvania Public Utility Commission. 4 "Comprehensive agreement." The comprehensive agreement 5 entered into between a private entity and the responsible public 6 entity or the affected public entity under section 9208 7 (relating to comprehensive agreement). 8 "Department." The Department of Transportation of the 9 Commonwealth. 10 "Develop." To plan, design, finance, lease, install, 11 construct or expand. 12 "Development." Planning, designing, financing, leasing, 13 installing, constructing or expanding. 14 "Fund." The Public-Private Transportation Partnership Fund 15 established in section 9218 (relating to Public-Private 16 Transportation Partnership Fund). 17 "Highway." A way or place open to the use of the public for 18 purposes of vehicle traffic. 19 "Interim agreement." An agreement, including a memorandum of 20 understanding or binding preliminary agreement, between a 21 private entity and the responsible public entity or the affected 22 public entity under section 9207 (relating to interim agreement) 23 which provides for completion of studies and any other 24 activities to advance the development or operation of a 25 qualifying transportation facility. 26 "Law enforcement officer." An individual authorized by law 27 to make arrests for violations of law. 28 "Material default." A default by a private entity in the 29 performance of its duties under section 9206 (relating to 30 powers, duties and liability of private entity) which: 20070H0555B0844 - 5 -
1 (1) jeopardizes adequate service to the public from a 2 qualifying transportation facility; and 3 (2) remains unremedied after the responsible public 4 entity or the affected public entity has provided notice to 5 the private entity and a reasonable cure period has elapsed. 6 "Multimodal transportation facility." A transportation 7 facility consisting of multiple modes of transportation. 8 "Operate." To finance, maintain, improve, equip, modify, 9 repair, manage, run or control functioning. 10 "Operation." The act of financing, maintaining, improving, 11 equipping, modifying, repairing, managing, running or 12 controlling functioning. 13 "Private entity." Any individual, corporation, partnership, 14 limited liability company, limited partnership, joint venture, 15 business trust, public utility, nonprofit corporation or other 16 business entity authorized to conduct business in this 17 Commonwealth. 18 "Procurement Code." The provisions of 62 Pa.C.S. Pt. I 19 (relating to Commonwealth Procurement Code). 20 "Public entity." The Commonwealth; any department, board, 21 commission, authority or agency of the Commonwealth, whether or 22 not subject to the policy supervision and control of the 23 Governor; a political subdivision; and a local, regional or 24 metropolitan transportation authority. The term does not include 25 any court or other officer or agency of the unified judicial 26 system or the General Assembly and its officers and agencies. 27 "Public utility." As defined in 66 Pa.C.S. § 102 (relating 28 to definitions). 29 "Qualifying transportation facility." A transportation 30 facility developed or operated by a private entity under this 20070H0555B0844 - 6 -
1 part. The term includes a multimodal transportation facility. 2 "Responsible public entity." The Department of 3 Transportation of the Commonwealth. 4 "Revenue." Money generated from or received in support of 5 the development or operation of a qualifying transportation 6 facility. The term includes: income; earnings; user fees; lease 7 payments; allocations; Federal, Commonwealth and political 8 subdivision appropriations; proceeds of bonds or notes; equity 9 investments; service payments; Federal grants; and money from a 10 Federal agency or instrumentality. 11 "Service contract." A contract entered into between a public 12 entity and a private entity under section 9204 (relating to 13 service contracts). 14 "Service payments." Payments to a private entity pursuant to 15 a service contract. 16 "Transportation commission." The State Transportation 17 Commission created in section 468 of the act of April 9, 1929 18 (P.L.177, No.175), known as The Administrative Code of 1929. 19 "Transportation facility." Any highway, bridge, tunnel, 20 overpass, ferry, airport, mass transportation facility, vehicle 21 parking facility, port facility, railroad, guideway, street 22 railway or similar facility used for the transportation of 23 persons or goods. The term: 24 (1) Includes: 25 (i) A substantial enhancement, an improvement or an 26 increase in capacity made to a facility listed in this 27 definition. 28 (ii) Any building, structure, parking area, 29 appurtenance and other property needed to operate a 30 facility listed in this definition. 20070H0555B0844 - 7 -
1 (iii) A substantial enhancement, an improvement or 2 an increase in capacity to a facility excluded under 3 paragraph (2). 4 (2) Does not include a facility listed in this 5 definition: 6 (i) which is available for use by the public on the 7 effective date of this definition; and 8 (ii) for the use of which no toll, fee or charge is 9 imposed on the public. 10 "Transportation organization." Any mass transportation, 11 port, bridge, rail, regional planning or airport authority or 12 commission organized under the laws of this Commonwealth or 13 under an interstate compact or otherwise empowered to render, 14 contract for or assist in the rendering of transportation 15 service or transportation planning in a limited area in this 16 Commonwealth, even though it may also render or assist in 17 rendering transportation service or transportation planning in 18 adjacent states. 19 "User fees." Rates, tolls, fees or other charges imposed by 20 a private entity for use of all or a portion of a qualifying 21 transportation facility pursuant to an interim agreement or a 22 comprehensive agreement. 23 "Vehicle." A conveyance in or on which persons or property 24 may be carried. 25 § 9202. Prerequisite for operation. 26 A private entity seeking authorization under this part to 27 develop or operate a transportation facility must obtain written 28 approval from the responsible public entity and the affected 29 public entity or written approval from the responsible public 30 entity and deemed approval from the affected public entity under 20070H0555B0844 - 8 -
1 section 9203 (relating to approval). A private entity may 2 initiate the approval process by requesting approval under 3 section 9203(a), or the responsible public entity, on its own 4 initiative or jointly with the affected public entity, may 5 request proposals under section 9203(b). 6 § 9203. Approval. 7 (a) Submission of proposals by private entities.--The 8 following shall apply to the submission of proposals by private 9 entities: 10 (1) A private entity may submit a proposal to the 11 responsible public entity for approval to develop or operate 12 a transportation facility. The proposal shall be accompanied 13 by the following material and information unless waived by 14 the responsible public entity as provided in regulations 15 adopted under subsection (f): 16 (i) A topographic map of 1:2,000 or other 17 appropriate scale indicating the location of the 18 transportation facility or facilities. 19 (ii) A description of the transportation facility or 20 facilities, including the conceptual design of the 21 facility and all proposed interconnections with other 22 transportation facilities. 23 (iii) The proposed date for development or operation 24 of the transportation facility along with an estimate of 25 the life cycle cost of the transportation facility as 26 proposed. 27 (iv) A statement setting forth the method by which 28 the private entity proposes to secure any real, personal 29 or mixed property interests required for the 30 transportation facility. 20070H0555B0844 - 9 -
1 (v) Information relating to the current 2 transportation plans of each affected jurisdiction. 3 (vi) A list of all permits and approvals required 4 for developing or operating improvements to the 5 transportation facility from Federal, Commonwealth or 6 local agencies and a projected schedule for obtaining the 7 permits and approvals. 8 (vii) A list of public utility, railroad and cable 9 television provider facilities that will be crossed by 10 the transportation facility and a statement of the plans 11 of the private entity to accommodate the crossings. 12 (viii) A statement setting forth the private 13 entity's general plans for developing or operating the 14 transportation facility, including identification of 15 revenue or proposed debt or equity investment proposed by 16 the private entity. 17 (ix) The names and addresses of the persons who may 18 be contacted for further information concerning the 19 proposal. 20 (x) Information on how the private entity's proposal 21 will address the needs of Commonwealth, regional or local 22 transportation by improving safety, reducing congestion, 23 abating environmental pollution, advancing energy 24 efficiency or conservation, improving homeland security, 25 increasing capacity or enhancing economic efficiency. 26 (xi) A summary of the proposal. 27 (xii) Additional material and information as may 28 reasonably be requested under regulations promulgated 29 under subsection (f). 30 (2) Within five days following receipt of a proposal, 20070H0555B0844 - 10 -
1 the responsible public entity shall provide a copy of the 2 proposal to the transportation commission. Within 45 days 3 following receipt of a proposal, the transportation 4 commission may submit its comments on the proposal to the 5 responsible public entity, which shall provide a copy of the 6 commission's comments to the affected public entity and to 7 each affected jurisdiction. 8 (3) The following shall apply: 9 (i) The responsible public entity shall determine if 10 the proposal includes an affected public entity and 11 shall, within five days following receipt of the 12 proposal, provide each affected public entity with a copy 13 of the summary submitted by the private entity, together 14 with a written request for the affected public entity's 15 comments and recommendations on the proposal. 16 (ii) The affected public entity's comments shall 17 include whether the proposed qualifying transportation 18 facility will address the needs of Commonwealth, regional 19 or local transportation by improving safety, reducing 20 congestion, abating environmental pollution, advancing 21 energy efficiency or conservation, improving homeland 22 security, increasing capacity or enhancing economic 23 efficiency. The comments and recommendations of the 24 affected public entity shall utilize the criteria 25 provided in subsection (d) and any additional criteria 26 specified in regulations promulgated under subsection (f) 27 and shall be submitted to the responsible public entity 28 and the transportation commission within 45 days 29 following receipt of the responsible public entity's 30 request for comments and recommendations. 20070H0555B0844 - 11 -
1 (iii) If the affected public entity fails to provide 2 its comments and recommendations to the responsible 3 public entity within the 45-day period specified in this 4 paragraph or if there are multiple affected public 5 entities, the affected public entity shall be deemed to 6 have approved the proposal and, if the responsible public 7 entity approves the proposal, shall cooperate fully in 8 the completion, execution and implementation of any 9 interim agreement or comprehensive agreement related to 10 the proposal. 11 (4) The following shall apply: 12 (i) Within 10 days following receipt of a proposal, 13 the responsible public entity shall provide a copy of the 14 summary submitted by the private entity, together with a 15 written notification of receipt of the proposal, to each 16 affected jurisdiction. As part of its written 17 notification, the responsible public entity shall 18 identify each affected public entity and shall request 19 that comments on the proposal be submitted by each 20 affected jurisdiction. Within 30 days following receipt 21 of a request from the responsible public entity, each 22 affected jurisdiction shall submit its comments to the 23 responsible public entity, each affected public entity 24 and the transportation commission. 25 (ii) The affected jurisdiction's comments shall 26 include whether the proposed qualifying transportation 27 facility will address the needs of Commonwealth, regional 28 or local transportation by improving safety, reducing 29 congestion, abating environmental pollution, advancing 30 energy efficiency or conservation, improving homeland 20070H0555B0844 - 12 -
1 security, increasing capacity or enhancing economic 2 efficiency. 3 (5) A written approval or rejection of the proposal 4 shall be submitted by the responsible public entity to the 5 private entity within 30 days following the end of all review 6 periods provided under paragraphs (2), (3) and (4). 7 (6) The following shall apply: 8 (i) If the responsible public entity approves the 9 private entity's proposal, the responsible public entity, 10 or the affected public entity and the responsible public 11 entity, jointly, may issue a request for proposals under 12 section 9217 (relating to procurement) from other private 13 entities for the development or operation of the 14 transportation facility. The request for proposals shall 15 include a requirement that a summary of the response be 16 submitted. 17 (ii) Within five days following receipt of a 18 response to a request for proposals, the responsible 19 public entity shall submit the summary of the response to 20 the transportation commission and to each affected 21 jurisdiction, which shall have 15 days following receipt 22 of the summary within which to provide comments to the 23 responsible public entity and the affected public entity. 24 (iii) Within 30 days following the expiration of the 25 transportation commission and affected jurisdiction 26 review period, the responsible public entity shall 27 provide written notification of its acceptance or 28 rejection of the initial proposal and each response to 29 the request for proposals to the private entity which 30 submitted the initial proposal, each private entity which 20070H0555B0844 - 13 -
1 responded to the request for proposals, the 2 transportation commission, the affected public entity and 3 each affected jurisdiction. 4 (7) The responsible public entity and the affected 5 public entity may provide for payment to a private entity 6 whose proposal or response to any subsequent request for 7 proposals is not approved of an amount as reimbursement or 8 partial reimbursement for costs incurred by the private 9 entity in preparing the proposal or response, and, in return 10 for this payment, the private entity shall grant to the 11 responsible public entity and the affected public entity the 12 right to use all or any portion of the proposal or the 13 response, including the technologies, techniques, methods, 14 processes and information contained in the project design. 15 (b) Issuance of request for proposals.--The following shall 16 apply to issuance of request for proposals: 17 (1) The responsible public entity may, on its own 18 initiative or at the request of an affected public entity, 19 issue a request for proposals from private entities for the 20 development or operation of transportation facilities. An 21 affected public entity may only issue a request for proposals 22 from private entities for the development or operation of 23 transportation facilities jointly with the responsible public 24 entity. The responsible public entity or the affected public 25 entity shall not charge a fee to cover the costs of 26 processing, reviewing and evaluating responses received to a 27 request for proposals issued under this subsection. 28 (2) The following shall apply: 29 (i) The responsible public entity shall, on the date 30 of issuance of a request for proposals, provide a copy of 20070H0555B0844 - 14 -
1 the request for proposals to the transportation 2 commission and to each affected jurisdiction. As part of 3 the request for proposals, the responsible public entity 4 shall require a private entity submitting a response to 5 simultaneously submit a written summary of its response 6 to the responsible public entity, to the affected public 7 entity, to the transportation commission and to each 8 affected jurisdiction identified in the request for 9 proposals. 10 (ii) Within 30 days of receipt of a summary of a 11 response from a private entity, each affected 12 jurisdiction shall submit its written comments on the 13 response to the responsible public entity, the affected 14 public entity and the transportation commission. Any 15 comments submitted by an affected jurisdiction must 16 include an indication of whether the affected 17 jurisdiction believes the proposed qualifying 18 transportation facility will address the needs of 19 Commonwealth, regional or local transportation by 20 improving safety, reducing congestion, abating 21 environmental pollution, advancing energy efficiency or 22 conservation, improving homeland security, increasing 23 capacity or enhancing economic efficiency. 24 (iii) The transportation commission shall have 15 25 days following the expiration of the 30-day affected 26 jurisdiction comment period provided in this paragraph 27 within which to submit written comments on the response 28 to the responsible public entity and the affected public 29 entity. 30 (3) If a private entity's response is not approved, the 20070H0555B0844 - 15 -
1 responsible public entity and the affected public entity may 2 provide for payment of an amount as reimbursement or partial 3 reimbursement for costs incurred by the private entity in 4 preparing the response, and, in return for this payment, the 5 private entity shall grant to the responsible public entity 6 and the affected public entity the right to use all or a 7 portion of the response, including the technologies, 8 techniques, methods, processes and information contained in 9 the project design. 10 (c) Private entity adverse interests.--The following shall 11 apply: 12 (1) Except as provided in paragraph (2), a private 13 entity which submits a proposal or a response to a request 14 for proposals under subsection (a) or which submits a 15 response to a request for proposals under subsection (b) and 16 which is also a State advisor or a State consultant for the 17 responsible public entity or an affected public entity shall 18 not be deemed to be in violation of the act of July 19, 1957 19 (P.L.1017, No.451), known as the State Adverse Interest Act, 20 while engaging in any of the following activities: 21 (i) Preparing or submitting the proposal or response 22 to a request for proposals. 23 (ii) Participating in any activities with the 24 responsible public entity or the affected public entity 25 related to the proposal or response to request for 26 proposals. 27 (iii) Negotiating and entering into any contract, 28 lease, interim agreement or comprehensive agreement with 29 the responsible public entity or the affected public 30 entity which results from the proposal or response to 20070H0555B0844 - 16 -
1 request for proposals. 2 (iv) Engaging in other actions taken in furtherance 3 of the purposes of this part. 4 (2) A private entity which submits a proposal or a 5 response to a request for proposals shall be prohibited from 6 providing advice to the responsible public entity and the 7 affected public entity under subsection (d) on its proposal 8 or a request for proposals for which it has submitted a 9 response. 10 (d) Criteria for review.--The responsible public entity and 11 the affected public entity may grant approval of the development 12 or operation of the transportation facility as a qualifying 13 transportation facility if both the responsible public entity 14 and the affected public entity determine that it serves the 15 public purpose of this part. The responsible public entity and 16 the affected public entity may determine that the development or 17 operation of the transportation facility as a qualifying 18 transportation facility serves such public purpose if all of the 19 following apply: 20 (1) There is a public need for the transportation 21 facility the private entity proposes to develop or operate as 22 a qualifying transportation facility. 23 (2) The transportation facility and the proposed 24 interconnections with existing transportation facilities and 25 the private entity's plans for development or operation of 26 the qualifying transportation facility are, in the opinion of 27 the responsible public entity and the affected public entity, 28 reasonable and will address the needs of Commonwealth, 29 regional or local transportation by improving safety, 30 reducing congestion, addressing environmental concerns, 20070H0555B0844 - 17 -
1 advancing energy efficiency or conservation, improving 2 homeland security, increasing capacity or enhancing economic 3 efficiency. 4 (3) The estimated cost of the transportation facility is 5 reasonable in relation to similar facilities. 6 (4) The private entity's plans will result in the timely 7 development, operation or more efficient operation of the 8 transportation facility. 9 (5) The private entity will agree to honor any existing 10 collective bargaining agreement related to the qualifying 11 transportation facility for the term of the agreement and 12 will comply with the act of August 15, 1961 (P.L.987, 13 No.442), known as the Pennsylvania Prevailing Wage Act, with 14 regard to the development or operation of the qualifying 15 transportation facility. In evaluating a proposal or response 16 to a request for proposals, the responsible public entity and 17 the affected public entity may rely upon internal staff 18 reports prepared by personnel familiar with the operation of 19 similar facilities or the advice of outside advisors or 20 consultants having relevant experience. The responsible 21 public entity and the affected public entity may request the 22 advice and assistance of other public entities in the 23 performance of their duties under this part. 24 (e) Fees.--The following shall apply to fees: 25 (1) The responsible public entity may charge a 26 reasonable fee to cover the costs of processing, reviewing 27 and evaluating a proposal submitted by a private entity or a 28 subsequent response to a request for proposals under 29 subsection (a), including reasonable attorney fees and fees 30 for financial and other necessary advisors or consultants. 20070H0555B0844 - 18 -
1 The fee to be charged by the responsible public entity shall 2 include a reasonable reimbursement for costs incurred by the 3 affected public entity for its review of a proposal or a 4 response to a request for proposals. The responsible public 5 entity shall annually publish a notice in the Pennsylvania 6 Bulletin of the fee schedule for the review of proposals and 7 responses to requests for proposals submitted by private 8 entities under subsection (a). 9 (2) All fees collected under paragraph (1) shall be 10 retained by the responsible public entity and the affected 11 public entity and used as provided under paragraph (1) or for 12 other purposes permitted under this part. 13 (3) No fee shall be imposed by the responsible public 14 entity or any affected public entity for the cost of 15 processing, reviewing and evaluating responses to any request 16 for proposals under subsection (b). 17 (f) Regulations.--The following shall apply to regulations: 18 (1) In order to facilitate the implementation of this 19 part and to provide one uniform procedure for submission and 20 review of proposals submitted, issuance of a request for 21 proposals and submission and review of responses to a request 22 for proposals under subsection (a) and responses to requests 23 for proposals under subsection (b), the responsible public 24 entity shall promulgate regulations that include all of the 25 following: 26 (i) A specific schedule for review of proposals or 27 responses to requests for proposals by the responsible 28 public entity and the affected public entity. 29 (ii) A process for alteration of that schedule by 30 the responsible public entity and the affected public 20070H0555B0844 - 19 -
1 entity if changes are necessary because of the scope or 2 complexity of proposals or responses received. 3 (iii) The process for receipt and review of 4 competing proposals and responses to requests for 5 proposals. 6 (iv) The type and amount of information that is 7 necessary for adequate review of proposals or responses 8 to requests for proposals in each stage of review. 9 (v) A prioritized documentation, review and 10 selection process for qualifying transportation 11 facilities that have approved or pending Federal and 12 Commonwealth clearances, have secured significant right- 13 of-way, have previously been allocated significant 14 Federal or Commonwealth funding or exhibit other 15 circumstances that could reasonably reduce the amount of 16 time to develop or operate the qualifying transportation 17 facility in accordance with the purpose of this part. 18 (vi) Action to be taken to protect confidential and 19 proprietary information required under subsection (i). 20 (vii) Any other provisions which are required under 21 this part or which the responsible public entity 22 determines are necessary for implementation of this part. 23 (2) Within 120 days following the effective date of this 24 subsection, the responsible public entity shall publish draft 25 interim regulations in the Pennsylvania Bulletin for comment. 26 The draft interim regulations shall have a 60-day public 27 comment period. Within 90 days following the close of the 28 public comment period on the draft interim regulations, the 29 responsible public entity shall publish final interim 30 regulations in the Pennsylvania Bulletin implementing this 20070H0555B0844 - 20 -
1 part. The draft interim regulations and the final interim 2 regulations shall not be subject to section 201 of the act of 3 July 31, 1968 (P.L.769, No.240), referred to as the 4 Commonwealth Documents Law, nor to review or approval under 5 the act of June 25, 1982 (P.L.633, No.181), known as the 6 Regulatory Review Act. The final interim regulations shall 7 expire on the earlier of the following: 8 (i) Two years after their publication in the 9 Pennsylvania Bulletin. 10 (ii) The publication of final regulations pursuant 11 to the Commonwealth Documents Law and the Regulatory 12 Review Act. 13 (g) Requirement for interim agreement or comprehensive 14 agreement.--The approval of the responsible public entity and 15 the affected public entity shall be subject to the private 16 entity's entering into an interim agreement or a comprehensive 17 agreement with the responsible public entity and the affected 18 public entity. 19 (h) Date for beginning construction or improvements.--In 20 connection with approval of the development or operation of the 21 transportation facility as a qualifying transportation facility, 22 the responsible public entity and the affected public entity 23 shall establish a date for the beginning of construction of or 24 improvements to the qualifying transportation facility. The 25 responsible public entity and the affected public entity may 26 extend this date. 27 (i) Confidential and proprietary information.--The following 28 shall apply: 29 (1) In the regulations promulgated under subsection (f), 30 the responsible public entity shall specify appropriate 20070H0555B0844 - 21 -
1 action to be taken by the responsible public entity, the 2 affected public entity, the affected jurisdiction and the 3 transportation commission to protect confidential and 4 proprietary information provided by the private entity. 5 (2) A proposal or a response to a request for proposals 6 submitted by a private entity under subsection (a), a 7 response submitted by a private entity to a request for 8 proposals under subsection (b) and the summary of the 9 proposal or response shall be confidential and, until a 10 comprehensive agreement under section 9208 (relating to 11 comprehensive agreement) is entered into by the private 12 entity and the responsible public entity or the affected 13 public entity, the proposal, the response and the summary 14 shall not be subject to disclosure under the act of June 21, 15 1957 (P.L.390, No.212), referred to as the Right-to-Know Law, 16 or any other act. Upon the execution of a comprehensive 17 agreement under section 9208, information contained in the 18 proposal, the response and the summary shall be considered to 19 be a public record for purposes of disclosure under the 20 Right-to-Know Law. 21 (j) Federal credit assistance.--The responsible public 22 entity and the affected public entity may also apply for, 23 execute or endorse applications submitted by private entities to 24 obtain Federal credit assistance for qualifying transportation 25 facilities developed or operated under this part. 26 (k) Taxes.--All of the following shall apply: 27 (1) Revenue received by a private entity and all user 28 fees shall continue to be subject to any tax, and to future 29 increases in the rate of any tax, which was imposed by a 30 political subdivision prior to the effective date of this 20070H0555B0844 - 22 -
1 subsection and which was otherwise applicable to the revenue 2 and user fees. 3 (2) No new tax may be imposed by a political subdivision 4 on the revenue received by a private entity or on user fees. 5 (l) Definitions.--As used in this section, the following 6 words and phrases shall have the meanings given to them in this 7 subsection: 8 "State advisor." As defined in section 2 of the act of July 9 19, 1957 (P.L.1017, No.451), known as the State Adverse Interest 10 Act. 11 "State consultant." As defined in section 2 of the act of 12 July 19, 1957 (P.L.1017, No.451), known as the State Adverse 13 Interest Act. 14 § 9204. Service contracts. 15 In addition to any authority otherwise conferred by law, a 16 public entity may contract with a private entity for 17 transportation services to be provided by a qualifying 18 transportation facility in exchange for service payments and 19 other consideration as the public entity may deem appropriate. 20 § 9205. Transfer and dedication of public property. 21 (a) Powers.--Except for an ownership interest and subject to 22 the provisions of this part, a public entity may transfer a 23 real, personal or mixed property interest it has in a qualifying 24 transportation facility to a private entity for such 25 consideration as the public entity and the private entity may 26 agree upon. 27 (b) Consideration.--Consideration under subsection (a) may 28 include the agreement of the private entity to operate the 29 qualifying transportation facility. 30 (c) Interests.--Except for an ownership interest, the real, 20070H0555B0844 - 23 -
1 personal or mixed property interests that the public entity may 2 transfer to the private entity under this section may include 3 licenses, leaseholds, franchises, easements or any other right 4 or interest in the qualifying transportation facility which the 5 public entity deems appropriate. 6 (d) Additional property.--Subject to the provisions of this 7 part, the private entity may acquire, construct and purchase 8 additional real, personal and mixed property and incorporate the 9 additional property into the qualifying transportation facility 10 if, upon the incorporation, all ownership interests in the 11 property are transferred and dedicated to and vested in the 12 public entity, for such consideration as the public entity and 13 the private entity may agree, with the private entity retaining 14 the property interests other than an ownership interest. 15 (e) Definition.--As used in this section the term "ownership 16 interest" means fee simple title and reversionary interest in 17 the real property and similar title and rights in the personal 18 and mixed property constituting the qualifying transportation 19 facility. 20 § 9206. Powers, duties and liability of private entity. 21 (a) General powers.--A private entity shall have all power 22 allowed by law generally to a private entity having the same 23 form of organization as the private entity and shall have the 24 power to develop or operate the qualifying transportation 25 facility, impose user fees and enter into service contracts in 26 connection with the use of the qualifying transportation 27 facility. No tolls or user fees may be imposed by the private 28 entity without the necessary Federal, Commonwealth or local 29 approvals and as provided in the interim agreement or the 30 comprehensive agreement. 20070H0555B0844 - 24 -
1 (b) Right to lease, use, develop or operate qualifying 2 transportation facility.--A private entity may lease or acquire 3 any other right to use or develop or operate the qualifying 4 transportation facility. No interim agreement, comprehensive 5 agreement, lease or contract involving real property of a 6 qualifying transportation facility shall be subject to the 7 realty transfer tax imposed under Article XI-C or XI-D of the 8 act of March 4, 1971 (P.L.6, No.2), known as the Tax Reform Code 9 of 1971, or under the act of December 31, 1965 (P.L.1257, 10 No.511), known as The Local Tax Enabling Act. 11 (c) Canals and waterways.--Subject to applicable permit 12 requirements, a private entity shall have the authority to cross 13 any canal or navigable watercourse if the crossing does not 14 unreasonably interfere with then-current navigation and use of 15 the waterway. 16 (d) Operation of qualifying transportation facility.--In 17 operating the qualifying transportation facility, a private 18 entity may do all of the following: 19 (1) Make classifications according to reasonable 20 categories for assessment of user fees. 21 (2) Make and enforce, with the consent of the 22 responsible public entity or the affected public entity, 23 reasonable rules to the same extent that the responsible 24 public entity or the affected public entity may make and 25 enforce rules with respect to a similar transportation 26 facility. 27 (e) Duties.--The private entity shall do all of the 28 following: 29 (1) Develop or operate, in accordance with the 30 provisions of the interim agreement or the comprehensive 20070H0555B0844 - 25 -
1 agreement, the qualifying transportation facility in a manner 2 that meets the standards of the responsible public entity or 3 the affected public entity for similar transportation 4 facilities operated and maintained by the responsible public 5 entity or the affected public entity. 6 (2) Keep the qualifying transportation facility open for 7 use by the members of the public, in accordance with the 8 terms and conditions of the interim or comprehensive 9 agreement, after its initial opening upon payment of the 10 applicable user fees or service payments. The qualifying 11 transportation facility may be temporarily closed because of 12 emergencies or, with the consent of the responsible public 13 entity or the affected public entity, to protect the safety 14 of the public or for reasonable construction or maintenance 15 procedures. 16 (3) Maintain or provide by contract for the maintenance 17 of the qualifying transportation facility. 18 (4) Cooperate with the responsible public entity or the 19 affected public entity in establishing any interconnection 20 with the qualifying transportation facility requested by the 21 responsible public entity or the affected public entity. 22 (5) Comply with the provisions of the interim or 23 comprehensive agreement and any service contract. 24 (f) Liability.--In recognition of the public benefit derived 25 from a private entity's development or operation of a qualifying 26 transportation facility, a private entity which develops or 27 operates a qualifying transportation facility shall not be 28 subject to civil liability that arises due to the injury or 29 death of an individual using the qualifying transportation 30 facility, unless the injury or death results from an act or 20070H0555B0844 - 26 -
1 omission of the private entity constituting gross negligence, 2 recklessness or intentional misconduct. 3 § 9207. Interim agreement. 4 (a) Provisions.--Prior to or in connection with the 5 negotiation of the comprehensive agreement as provided under 6 section 9208 (relating to comprehensive agreement), the 7 responsible public entity or the affected public entity may 8 enter into an interim agreement with a private entity proposing 9 the development or operation of the proposed qualifying 10 transportation facility. The interim agreement shall require a 11 private entity, for the term of the interim agreement, to 12 provide the responsible public entity or the affected public 13 entity with periodic reports and audits related to disclosure, 14 internal control and performance and financial accounting. The 15 periodic reports and audits shall be prepared by an independent 16 consulting or certified public accounting firm engaged by the 17 private entity and shall be made available by the responsible 18 public entity or the affected public entity for public 19 inspection and copying under the act of June 21, 1957 (P.L.390, 20 No.212), referred to as the Right-to-Know Law. The interim 21 agreement may provide for all of the following: 22 (1) Permitting the private entity to commence activities 23 for which it may be compensated relating to the proposed 24 qualifying transportation facility, including project 25 planning and development, advance right-of-way acquisition, 26 design and engineering, environmental analysis and 27 mitigation, survey, conducting transportation and revenue 28 studies and ascertaining the availability of financing for 29 the proposed qualifying transportation facility or 30 facilities. 20070H0555B0844 - 27 -
1 (2) Establishing the process and timing of the 2 negotiation of the comprehensive agreement. 3 (3) Containing any other provisions related to any 4 aspect of the development or operation of a qualifying 5 transportation facility that the parties may deem 6 appropriate. 7 (b) Multiple private entities.--Notwithstanding any other 8 provision of this part, the responsible public entity or the 9 affected public entity may enter into an interim agreement with 10 multiple private entities if the responsible public entity or 11 the affected public entity determines in writing that it is in 12 the public interest to do so. The written determination may not 13 take effect until a copy is provided to the transportation 14 commission and is published as a notice in the Pennsylvania 15 Bulletin. 16 § 9208. Comprehensive agreement. 17 (a) Provisions.--Prior to developing or operating the 18 qualifying transportation facility, a private entity shall enter 19 into a comprehensive agreement with the responsible public 20 entity or the affected public entity. The comprehensive 21 agreement shall, as appropriate, provide for all of the 22 following: 23 (1) Delivery of performance and payment bonds in 24 connection with the development or operation of the 25 qualifying transportation facility, in the forms and amounts 26 satisfactory to the responsible public entity or the affected 27 public entity. 28 (2) Review of plans for the development or operation of 29 the qualifying transportation facility by the responsible 30 public entity or the affected public entity and approval by 20070H0555B0844 - 28 -
1 the responsible public entity or the affected public entity 2 if the plans conform to standards acceptable to the 3 responsible public entity or the affected public entity. 4 (3) Periodic inspection of construction of or 5 improvements to the qualifying transportation facility by the 6 responsible public entity or the affected public entity to 7 ensure that they conform to the standards acceptable to the 8 responsible public entity or the affected public entity. 9 (4) Maintenance of a policy of public liability 10 insurance, copies of which shall be filed with the 11 responsible public entity or the affected public entity, 12 accompanied by proofs of coverage, or self-insurance, each in 13 form and amount satisfactory to the responsible public entity 14 or the affected public entity and reasonably sufficient to 15 insure coverage of tort liability to the public and employees 16 and to enable the continued operation of the qualifying 17 transportation facility. 18 (5) Periodic monitoring of the maintenance practices of 19 the private entity by the responsible public entity or the 20 affected public entity and the taking of actions as the 21 responsible public entity or the affected public entity finds 22 appropriate to ensure that the qualifying transportation 23 facility is properly maintained. 24 (6) Reimbursement to be paid to the responsible public 25 entity or the affected public entity for services provided by 26 the responsible public entity or the affected public entity. 27 (7) Filing of appropriate financial statements in a form 28 acceptable to the responsible public entity or the affected 29 public entity on a periodic basis. 30 (8) Compensation to the private entity, which may 20070H0555B0844 - 29 -
1 include one or a combination of a reasonable development fee, 2 a reasonable maximum rate of return on investment or 3 reimbursement of development expenses in the event of 4 termination for convenience by the responsible public entity 5 or the affected public entity, as agreed upon between the 6 responsible public entity or the affected public entity and 7 the private entity. 8 (9) The date of termination of the private entity's 9 authority and duties under this part and transfer to the 10 responsible public entity or the affected public entity. 11 (10) Guaranteed cost and completion guarantees related 12 to the development or operation of the qualifying 13 transportation facility and payment of damages for failure to 14 meet the completion guarantee. 15 (11) Submission, on at least an annual basis, by the 16 private entity to the responsible public entity or the 17 affected public entity of reports and audits related to 18 disclosure, internal control and performance and financial 19 accounting. The reports and audits shall be prepared by an 20 independent consulting or certified public accounting firm 21 engaged by the private entity and shall be made available by 22 the responsible public entity or the affected public entity 23 for public inspection and copying under the act of June 21, 24 1957 (P.L.390, No.212), referred to as the Right-to-Know Law. 25 (b) User fees.--The following shall apply: 26 (1) The comprehensive agreement shall provide for user 27 fees as may be established by agreement of the parties. 28 (2) User fees shall be set at a level that takes into 29 account lease payments, service payments and compensation to 30 the private entity or as specified in the comprehensive 20070H0555B0844 - 30 -
1 agreement. 2 (3) A copy of any service contract shall be filed with 3 the responsible public entity or the affected public entity. 4 (4) A schedule of the current user fees shall be 5 provided by the private entity to the responsible public 6 entity, the affected public entity and each affected 7 jurisdiction when initially imposed and whenever changed and 8 shall be made available by the private entity to any member 9 of the public on request. 10 (5) In negotiating user fees under this section, the 11 parties shall establish fees that are the same for persons 12 using the qualifying transportation facility under like 13 conditions, except as required by agreement between the 14 parties to preserve capacity and prevent congestion on the 15 qualifying transportation facility. 16 (6) The execution of the comprehensive agreement or any 17 amendment to the comprehensive agreement shall constitute 18 conclusive evidence that the user fees provided in the 19 comprehensive agreement comply with this part. 20 (7) User fees established in the comprehensive agreement 21 as a source of revenue may be in addition to or in lieu of 22 service payments. 23 (c) Grants and loans.--In the comprehensive agreement, the 24 responsible public entity or the affected public entity may 25 agree to make grants or loans to the private entity for the 26 development or operation of the qualifying transportation 27 facility from amounts received from the Federal Government or 28 any of its agencies or instrumentalities. 29 (d) Additional provisions.--The following shall apply: 30 (1) The comprehensive agreement shall incorporate the 20070H0555B0844 - 31 -
1 duties of the private entity under this part and may contain 2 other terms and conditions as the responsible public entity 3 or the affected public entity determines serve the public 4 purpose of this part. 5 (2) The comprehensive agreement may contain provisions 6 under which the responsible public entity or the affected 7 public entity agrees to provide notice of default and cure 8 rights for the benefit of the private entity and the persons 9 specified in the comprehensive agreement as providing 10 financing for the qualifying transportation facility. 11 (3) The comprehensive agreement may contain other lawful 12 terms and conditions to which the private entity and the 13 responsible public entity or the affected public entity 14 mutually agree, including provisions regarding unavoidable 15 delays or provisions providing for a loan of public funds for 16 the development or operation of one or more qualifying 17 transportation facilities. 18 (e) Excess earnings.--The comprehensive agreement shall 19 provide for the distribution of any earnings in excess of the 20 maximum rate of return as negotiated in the comprehensive 21 agreement. Excess earnings may be distributed to the fund 22 established under section 9218 (relating to Public-Private 23 Transportation Partnership Fund) or to the private entity for 24 debt reduction. 25 (f) Amendment.--Any changes in the terms of the 26 comprehensive agreement as may be agreed upon by the parties 27 shall be added to the comprehensive agreement by written 28 amendment. 29 (g) Multiple private entities.--Notwithstanding any other 30 provision of this part, the responsible public entity or the 20070H0555B0844 - 32 -
1 affected public entity may enter into a comprehensive agreement 2 with multiple private entities if the responsible public entity 3 or the affected public entity determines in writing that it is 4 in the public interest to do so. The written determination may 5 not take effect until a copy is provided to the transportation 6 commission and is published as a notice in the Pennsylvania 7 Bulletin. 8 (h) Phased development and operation.--The comprehensive 9 agreement may provide for the development or operation of phases 10 or segments of the qualifying transportation facility. 11 § 9209. Multiple affected public entities. 12 (a) Private entity proposals.--If a private entity submits a 13 proposal pursuant to section 9203(a) (relating to approval) to 14 develop or operate a qualifying transportation facility that may 15 require approval by the responsible public entity and more than 16 one affected public entity, representatives of each of the 17 affected public entities shall convene and determine which 18 affected public entity shall serve as the coordinating affected 19 public entity. The determination shall occur within ten days of 20 the receipt of the summary of the proposal by the respective 21 affected public entities. If the affected public entities cannot 22 reach agreement on which affected public entity will serve as 23 the coordinating affected public entity within the allotted ten- 24 day period, the responsible public entity shall designate one of 25 the affected public entities to serve as the coordinating 26 affected public entity. 27 (b) Comments and review.--The coordinating affected public 28 entity shall be subject to the requirements of section 29 9203(a)(3) for completion of its review and submission of its 30 comments and recommendations, except that the coordinating 20070H0555B0844 - 33 -
1 affected public entity may submit a written request to the 2 responsible public entity requesting approval of an extension of 3 up to 20 days for completion of its review and submission of its 4 recommendations. If the coordinating affected public entity 5 fails to provide its comments and recommendations to the 6 responsible public entity within the 45-day period specified in 7 section 9203(a)(3) or any extension of that period granted by 8 the responsible public entity, all affected public entities on 9 whose behalf the coordinating affected public entity was 10 designated to act shall be deemed to have approved the proposal 11 and, if the responsible public entity approves the proposal, 12 shall cooperate fully in completion, execution and 13 implementation of any interim agreement or comprehensive 14 agreement related to the proposal. 15 (c) Request for proposals.--If a request for proposals is 16 issued pursuant to section 9203(b) and the issuance includes 17 more than one affected public entity, the responsible public 18 entity shall request that representatives of each of the 19 affected public entities convene and determine which affected 20 public entity shall serve as the coordinating affected public 21 entity. The determination of which affected public entity shall 22 serve as the coordinating affected public entity shall be made 23 prior to issuance of a request for proposals. If the affected 24 public entities cannot reach agreement on the designation of a 25 coordinating affected public entity within ten days of receipt 26 of a written request from the responsible public entity to 27 convene and make a designation, the responsible public entity 28 shall designate one of the affected public entities to serve as 29 the coordinating affected public entity. 30 (d) Action following determination.--Once a determination 20070H0555B0844 - 34 -
1 has been made in accordance with subsection (a), (b) or (c), the 2 responsible public entity, the coordinating affected public 3 entity and the private entity shall proceed in accordance with 4 this part. 5 § 9210. Federal, Commonwealth and local assistance. 6 (a) Obtaining assistance.--The responsible public entity and 7 the affected public entity may take any action to obtain 8 Federal, Commonwealth or local assistance for a qualifying 9 transportation facility that serves the public purpose of this 10 part and may enter into any contracts required to receive 11 Federal assistance. Funds received from the Commonwealth, other 12 than grant or loan funds provided pursuant to statute, or from 13 the Federal Government or a Federal agency or instrumentality 14 shall be subject to appropriation by the General Assembly. The 15 responsible public entity and the affected public entity may 16 determine that it serves the public purpose of this part for all 17 or any portion of the costs of a qualifying transportation 18 facility to be paid, directly or indirectly, from the proceeds 19 of a grant or loan made by the Federal, Commonwealth or local 20 government or a government agency or instrumentality. 21 (b) Use of grants and loans.--The responsible public entity 22 and the affected public entity may agree to make grants or loans 23 for the development or operation of the qualifying 24 transportation facility from amounts received from the Federal, 25 Commonwealth or local government or a government agency or 26 instrumentality. 27 (c) Pledge of Commonwealth full faith and credit.--Nothing 28 in this part or in an interim or comprehensive agreement entered 29 into pursuant to this part shall be deemed to enlarge, diminish 30 or affect the authority otherwise possessed by the responsible 20070H0555B0844 - 35 -
1 public entity and the affected public entity to take action that 2 would impact the debt capacity of the Commonwealth or the 3 affected jurisdictions, except that in no event shall any debt 4 financing for a qualifying transportation facility pledge the 5 full faith and credit of the Commonwealth for the payment of 6 debt and that any debt incurred for financing of a qualifying 7 transportation facility shall be payable solely from one or a 8 combination of: 9 (1) revenue for the qualifying transportation facility; 10 (2) a pledge of, security interest in or lien on grants, 11 loans or other funds received by or provided by the private 12 entity, the affected public entity or an affected 13 jurisdiction; or 14 (3) a pledge of, security interest in or lien on real, 15 personal or mixed property owned by the private entity. 16 § 9211. Financing. 17 (a) General rule.--Except as provided in section 9210(c) 18 (relating to Federal, Commonwealth and local assistance), any 19 financing of a qualifying transportation facility may be in 20 amounts and upon terms and conditions as determined by the 21 parties to the interim or comprehensive agreement. 22 (b) Exception.--Without limiting the generality of 23 subsection (a), the private entity, the responsible public 24 entity, the affected public entity and an affected jurisdiction 25 may propose to utilize any and all money that may be available 26 to them and may, to the fullest extent permitted by applicable 27 law and subject to the limitations of section 9210(c), issue 28 debt, equity or other securities or obligations, enter into 29 leases and grant and loan agreements, access any designated 30 transportation trust funds, borrow or accept grants from any 20070H0555B0844 - 36 -
1 Commonwealth program and secure any financing with a pledge of, 2 security interest in or lien on, any or all of the revenue from 3 the qualifying transportation facility, money from any grants, 4 loans or other funds received by or provided by the private 5 entity, the affected public entity or an affected jurisdiction, 6 and any real, personal or mixed property owned by the private 7 entity. 8 § 9212. Material default; remedies. 9 (a) Remedies.--Upon the occurrence and during the 10 continuation of material default, the responsible public entity 11 or the affected public entity may exercise the following 12 remedies: 13 (1) The responsible public entity or the affected public 14 entity may elect to take over the qualifying transportation 15 facility and shall succeed to all of the right, title and 16 interest in the qualifying transportation facility, subject 17 to liens on revenue previously granted by the private entity 18 to a person providing financing for the transportation 19 facility. 20 (2) The responsible public entity or the affected public 21 entity may terminate the interim or comprehensive agreement 22 and exercise any other rights and remedies which may be 23 available to it at law or in equity. 24 (3) The responsible public entity or the affected public 25 entity may make or cause to be made any appropriate claims 26 under the performance or payment bonds required by section 27 9208 (relating to comprehensive agreement). 28 (b) Exercise of remedies.--If the responsible public entity 29 or the affected public entity elects to take over a qualifying 30 transportation facility under subsection (a), the responsible 20070H0555B0844 - 37 -
1 public entity or the affected public entity may develop or 2 operate the qualifying transportation facility, impose user fees 3 for the use of the facility and comply with service contracts as 4 if the responsible public entity or the affected public entity 5 were the private entity. Revenue subject to a lien shall be 6 collected for the benefit of, and paid to, secured parties as 7 their interests may appear and to the extent necessary to 8 satisfy the private entity's obligations to the secured parties, 9 including the maintenance of reserves, and the liens shall be 10 correspondingly reduced and, when paid off, released. Before any 11 payments to, or for the benefit of, secured parties, the 12 responsible public entity or the affected public entity may use 13 revenue to pay current operation and maintenance costs of the 14 qualifying transportation facility or facilities, including 15 compensation to the responsible public entity or the affected 16 public entity for its services in operating and maintaining the 17 qualifying transportation facility. Remaining revenue after all 18 payments for operation and maintenance of the qualifying 19 transportation facility and all payments to or for the benefit 20 of secured parties shall be paid to the private entity, subject 21 to the negotiated maximum rate of return. The right to receive 22 the payment shall be considered just compensation for the 23 qualifying transportation facility. The full faith and credit of 24 the Commonwealth shall not be pledged to secure any financing of 25 the private entity by the election to take over the qualifying 26 transportation facility. Assumption of operation of the 27 qualifying transportation facility shall not obligate the 28 responsible public entity or the affected public entity to pay 29 any obligation of the private entity from sources other than 30 revenue. 20070H0555B0844 - 38 -
1 § 9213. Eminent domain. 2 (a) Exercise of eminent domain.--At the request of the 3 private entity, the responsible public entity and the affected 4 public entity may exercise the right of eminent domain for the 5 purpose of acquiring any lands or estates or interests therein 6 to the extent permitted by laws governing eminent domain and to 7 the extent that the responsible public entity or the affected 8 public entity finds that the action serves the public purpose of 9 this part. Any amounts to be paid in any such eminent domain 10 proceeding shall be paid by the private entity. 11 (b) Exercise against qualifying transportation facility.-- 12 Except as provided in subsection (a), until the responsible 13 public entity or the affected public entity, after notice to the 14 private entity and the secured parties as may appear in the 15 private entity's records and an opportunity for hearing, has 16 obtained a final declaratory judgment that a material default 17 has occurred and is continuing, the power of eminent domain may 18 not be exercised against a qualifying transportation facility. 19 (c) Exercise following declaratory judgment.--After the 20 entry of a final declaratory judgment, the responsible public 21 entity or the affected public entity having the power of eminent 22 domain under the laws of this Commonwealth may exercise the 23 power of eminent domain, in lieu of or at any time after taking 24 over the qualifying transportation facility pursuant to section 25 9212(a)(1) (relating to material default; remedies), in order to 26 acquire the qualifying transportation facility or facilities. 27 Nothing in this part shall be construed to limit the exercise of 28 the power of eminent domain by the responsible public entity or 29 the affected public entity against a qualifying transportation 30 facility after the entry of a final declaratory judgment 20070H0555B0844 - 39 -
1 pursuant to subsection (b). Any person that has provided 2 financing for the qualifying transportation facility and the 3 private entity, to the extent of its capital investment, may 4 participate in the eminent domain proceedings with the standing 5 of a property owner. 6 § 9214. Public utility crossings. 7 A private entity and each public utility, railroad and cable 8 television provider whose facilities are to be crossed or 9 affected shall cooperate fully with each other in planning and 10 arranging the manner of the crossing or relocation of the 11 facilities. Any entity possessing the power of eminent domain is 12 expressly granted authority to utilize such powers to the extent 13 permitted by laws governing eminent domain in connection with 14 the moving or relocation of facilities to be crossed by the 15 qualifying transportation facility or that must be relocated to 16 the extent that such moving or relocation is made necessary or 17 desirable by construction of or improvements to the qualifying 18 transportation facility, which shall be construed to include 19 construction of or improvements to temporary facilities for the 20 purpose of providing service during the period of construction 21 or improvement. If the private entity and any public utility, 22 railroad and cable television provider are unable to agree upon 23 a plan for a crossing or relocation, the commission may 24 determine the manner in which the crossing or relocation shall 25 be accomplished and shall determine any damages due as a result 26 of the crossing or relocation. The commission may employ expert 27 engineers to examine the location and plans for the crossing or 28 relocation, hear objections, consider modifications and make 29 recommendations to the commission, in which case the cost of the 30 expert shall be borne by the private entity. Any amount to be 20070H0555B0844 - 40 -
1 paid for a crossing or for construction of, moving or relocating 2 facilities shall be paid by the private entity or any other 3 person who is contractually responsible to make the payment 4 under an interim or comprehensive agreement or any other 5 contract, license or permit. The commission shall make a 6 determination within 90 days of notification by the private 7 entity that the qualifying transportation facility will cross 8 public utilities subject to the commission's jurisdiction. 9 § 9215. Police powers; violations of law. 10 (a) Powers and jurisdiction.--All law enforcement officers 11 of the Commonwealth and each affected jurisdiction shall have 12 the same powers and jurisdiction within the limits of a 13 qualifying transportation facility as they have in their 14 respective areas of jurisdiction, and law enforcement officers 15 shall have access to the qualifying transportation facility at 16 any time for the purpose of exercising their law enforcement 17 powers and jurisdiction. The grant of authority in this 18 subsection does not extend to the private offices, buildings, 19 garages and other improvements of the private entity to any 20 greater degree than the police power extends to any other 21 private buildings and improvements. 22 (b) Enforcement of traffic laws.--To the extent the 23 qualifying transportation facility is a highway, bridge, tunnel, 24 overpass or similar transportation facility for motor vehicles, 25 the traffic and motor vehicle laws of this Commonwealth or, if 26 applicable, any local jurisdiction shall be the same as those 27 applying to conduct on similar transportation facilities in this 28 Commonwealth or the local jurisdiction. Punishment for offenses 29 shall be as prescribed by law for conduct occurring on similar 30 transportation facilities in this Commonwealth or the local 20070H0555B0844 - 41 -
1 jurisdiction. 2 (c) Payment of costs.--A private entity shall be responsible 3 for the payment of all costs associated with the provision of 4 law enforcement services pursuant to subsections (a) and (b) 5 within the limits of a qualifying transportation facility. 6 (d) Imposition, collection and disposition of fines.--Fines 7 imposed by law enforcement officers for violations occurring 8 within the limits of a qualifying transportation facility shall 9 be imposed, collected, distributed and governed as otherwise 10 provided by applicable law. 11 § 9216. Transfer of assets. 12 The responsible public entity or the affected public entity 13 shall terminate the private entity's authority and duties under 14 this part on the date set forth in the interim or comprehensive 15 agreement. Upon termination, the authority and duties of the 16 private entity under this part shall cease, and all property, 17 real, personal and mixed, constituting the qualifying 18 transportation facility shall be transferred to the responsible 19 public entity or the affected public entity, if any. 20 § 9217. Procurement. 21 (a) General rule.--The Procurement Code shall not apply to 22 this part or to development, operation, construction, 23 improvement, alteration or maintenance of a qualifying 24 transportation facility by a private entity. Contracts shall be 25 awarded and interim and comprehensive agreements shall be 26 entered into through use of a competitive process or by private 27 negotiation as provided in regulations promulgated pursuant to 28 section 9203(f) (relating to approval). Responsible public 29 entities and affected public entities shall not be required to 30 select the proposal with the lowest price offer or the highest 20070H0555B0844 - 42 -
1 price offer, but may consider price as one factor in evaluating 2 the proposals received. Other factors that may be considered 3 include: 4 (1) proposed cost of the qualifying transportation 5 facility; 6 (2) general reputation, qualifications, industry 7 experience and financial capacity of the private entity; 8 (3) proposed design, operation and feasibility of the 9 qualifying transportation facility; 10 (4) eligibility of the qualifying transportation 11 facility for priority selection, review and documentation 12 time lines under the regulations promulgated pursuant to 13 section 9203(f); 14 (5) local citizen and public entity comments; 15 (6) benefits to the public; 16 (7) the private entity's compliance with a minority 17 business enterprise participation plan or good faith effort 18 to comply with the goals of a plan; 19 (8) the private entity's plans to employ local 20 contractors and residents; 21 (9) the safety record of the private entity; 22 (10) the ability of the qualifying transportation 23 facility to address the needs of Commonwealth, regional or 24 local transportation by improving safety, reducing 25 congestion, abating environmental pollution, advancing energy 26 efficiency or conservation, improving homeland security, 27 increasing capacity or enhancing economic efficiency; and 28 (11) other criteria that the responsible public entity 29 and the affected public entity deem appropriate. 30 (b) Specific exemption.--In no event shall a private entity, 20070H0555B0844 - 43 -
1 a responsible public entity or an affected public entity be 2 subject to requirements of the act of May 1, 1913 (P.L.155, 3 No.104), referred to as the Separations Act, with regard to a 4 qualifying transportation facility which is the subject of an 5 interim agreement or a comprehensive agreement. 6 § 9218. Public-Private Transportation Partnership Fund. 7 (a) Establishment.--There is established within the State 8 Treasury a special fund to be known as the Public-Private 9 Transportation Partnership Fund for the purposes enumerated in 10 this section. Interest and investment earnings on money in the 11 fund shall be retained in the fund. Money in the fund shall be 12 used for the purposes enumerated in subsection (c). Money in the 13 fund shall not lapse and is appropriated upon approval of the 14 Governor for the purposes enumerated in subsection (c). 15 (b) Deposits to fund.--Money to be deposited in the fund 16 includes: 17 (1) excess earnings as provided in section 9208(e) 18 (relating to comprehensive agreement); 19 (2) monetary damages received by the responsible public 20 entity and the affected public entity for failure by the 21 private entity to comply with the terms of an interim 22 agreement or a comprehensive agreement; 23 (3) payments made to the responsible public entity and 24 the affected public entity from any performance or payment 25 bond; and 26 (4) any other money received by the responsible public 27 entity and the affected public entity and earmarked for 28 deposit into the fund pursuant to the terms of an interim 29 agreement or a comprehensive agreement. 30 (c) Authorized uses.--Money in the fund shall be allocated 20070H0555B0844 - 44 -
1 by majority vote of the transportation commission and may, upon 2 allocation, be used: 3 (1) for maintenance, repair, construction, 4 reconstruction and operation of transportation facilities 5 available for use by the public and for which no toll, fee or 6 other charge is imposed for public use; or 7 (2) by an affected public entity for transportation- 8 related purposes under a written agreement with the 9 responsible public entity as approved by majority vote of the 10 transportation commission. 11 (d) Restrictions on transfers from fund.--Money in the fund 12 shall not be transferred to the General Fund or any other fund 13 or used for any purpose not specifically authorized in 14 subsection (c) unless the transfer or use is by statute approved 15 by a two-thirds vote of the General Assembly. 16 Section 2. All acts and parts of acts are repealed to the 17 extent they are inconsistent with the provisions of 74 Pa.C.S. 18 Pt. V. 19 Section 3. This act shall take effect as follows: 20 (1) The following provisions shall take effect 21 immediately: 22 (i) The addition of 74 Pa.C.S. § 9203(f) and (k). 23 (ii) This section. 24 (2) The remainder of this act shall take effect on the 25 earlier of: 26 (i) 120 days; or 27 (ii) the date of publication of draft interim 28 regulations under 74 Pa.C.S. § 9203(f). A9L74BIL/20070H0555B0844 - 45 -