SENATE AMENDED

THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY GEIST, McGEEHAN, AUMENT, BAKER, BENNINGHOFF, BOYD, CALTAGIRONE, CAUSER, CHRISTIANA, CLYMER, P. COSTA, CUTLER, DENLINGER, ELLIS, J. EVANS, EVERETT, FARRY, FLECK, GIBBONS, GILLESPIE, GINGRICH, GRELL, GROVE, HALUSKA, HARHAI, HARHART, HARPER, HARRIS, HESS, HICKERNELL, HORNAMAN, HUTCHINSON, KAUFFMAN, M. K. KELLER, W. KELLER, MAHER, MARSHALL, MARSICO, MILLER, MILNE, MUSTIO, OBERLANDER, PAYNE, PAYTON, PICKETT, PYLE, QUINN, RAPP, REED, REICHLEY, SAYLOR, SCHRODER, K. SMITH, SONNEY, STERN, STEVENSON, TALLMAN, TURZAI, VULAKOVICH, WATSON, EVANKOVICH, TRUITT, KILLION, HARKINS AND BARBIN, FEBRUARY 14, 2011

SENATOR RAFFERTY, TRANSPORTATION, IN SENATE, AS AMENDED MAY 23, 2012   

AN ACT

Amending Title 74 (Transportation) of the Pennsylvania

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Consolidated Statutes, providing for public-private

transportation partnerships; and making a related repeal.

Amending Title 74 (Transportation) of the Pennsylvania

<--

Consolidated Statutes, providing for public-private

transportation partnerships; and making a related repeal.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Title 74 of the Pennsylvania Consolidated

<--

Statutes is amended by adding a part to read:

PART V

TRANSPORTATION INFRASTRUCTURE

Chapter

91.  Public-Private Transportation Partnership

CHAPTER 91

PUBLIC-PRIVATE TRANSPORTATION PARTNERSHIP

Sec.

9101.  Scope of chapter.

9102.  Findings and declaration of policy.

9103.  Definitions.

9104.  Public-Private Transportation Partnership Board.

9105.  Duties of board.

9106.  Operation of board.

9107.  Solicitations for transportation projects.

9108.  Transportation projects.

9109.  Requests.

9110.  Selection of development entities.

9111.  Public-private transportation partnership agreement.

9112.  Records of requests.

9113.  Use of intellectual property.

9114.  Police powers and violations of law.

9115.  Environmental and other authorizations.

9116.  Taxation of development entity.

9117.  Power of eminent domain.

9118.  Sovereign immunity.

9119.  Specific performance.

9120.  Applicability of other laws.

9121.  Adverse interest.

9122.  Federal, State, local and private assistance.

9123.  Public-Private Transportation Account.

9124.  Pennsylvania Turnpike Commission.

9125.  Regulations.

§ 9101.  Scope of chapter.

This chapter relates to public-private transportation

partnerships.

§ 9102.  Findings and declaration of policy.

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

Assembly finds, determines and declares as follows:

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

increase capacity, improve safety and enhance economic

efficiency of transportation facilities throughout this

Commonwealth.

(2)  The public entities have limited resources to fund

the maintenance and expansion of their respective

transportation facilities.

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

addressed, alternative funding mechanisms and strategies must

be developed to supplement existing public revenue sources.

(4)  The imposition of user fees establishes an

additional funding source for transportation infrastructure

needs that spreads the costs across those who most benefit

from the Commonwealth's system of roads, highways and

bridges.

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

operation, maintenance, construction and improvement of toll

roads is a proprietary function which may be delegated to a

private entity consistent with section 31 of Article III of

the Constitution of Pennsylvania.

(6)  Authorizing public entities to enter into

transportation partnership agreements with private entities

and other public entities for the development, operation and

financing of transportation facilities can result in greater

availability of transportation facilities to the public in a

timely, efficient and less costly fashion, thereby serving

the public safety and welfare.

(7)  Assuring that public-private transportation projects

are developed, operated and financed in a cost-effective

manner is an important factor in promoting the health, safety

and welfare of the citizens of this Commonwealth.

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

(1)  To encourage private entities to invest in this

Commonwealth by participating in the development, operation

or financing of transportation facilities.

(2)  To provide public entities and private entities with

the authority and flexibility in contracting for the

development, operation and financing of transportation

facilities.

(3)  To authorize public entities to contract with

private and other public entities to provide transportation

facilities and related services.

§ 9103.  Definitions.

The following words and phrases when used in this chapter

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

context clearly indicates otherwise:

"Account."  The Public-Private Transportation Account.

"Board."  The Public-Private Transportation Partnership

Board.

"Department."  The Department of Transportation of the

Commonwealth.

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

public-private transportation partnership agreement and which is

any of the following:

(1)  A private entity.

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

providing or improving its own transportation facilities.

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

which is capable of charging an account holder for the

prescribed toll by electronic transmission of information. The

term includes open road tolls, video tolls or other similar

structural or technological enhancements pertaining to tolls.

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

answer to a request for proposals or transportation projects.

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

that is not the Federal Government, the Commonwealth or a

municipal authority.

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

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

public-private transportation partnership agreement.

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

an authority created by statute which owns a transportation

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

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

agency of the Pennsylvania judicial system.

"Public-private transportation partnership agreement."  A

contract for a transportation project which transfers the rights

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

facility by a public entity to a development entity for a

definite term during which the development entity will provide

the transportation project to the public entity in return for

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

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

such as the following transportation-related services:

(1)  Operations and maintenance.

(2)  Revenue collection.

(3)  User fee collection or enforcement.

(4)  Design.

(5)  Construction.

(6)  Development and other activities with respect to

existing or new transportation facilities that enhance

traffic throughput, reduce congestion, improve safety or

otherwise manage or improve a transportation facility.

(7)  Financing.

"Public-private transportation project."  A transportation

project undertaken by a development entity pursuant to a public-

private transportation partnership agreement.

"Request for transportation projects."  A solicited or

unsolicited plan for a transportation project submitted to the

board by a public entity.

"Responsible offeror."  An offeror that has submitted a

responsive proposal and that possesses the capability to fully

perform the public-private transportation partnership agreement

requirements in all respects and the integrity and reliability

to assure good faith performance.

"Responsive proposal."  A proposal that conforms in all

material aspects to the requirements and criteria in the request

for proposals.

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

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

"Transportation facility."  A proposed or existing road,

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

transportation facility, vehicle parking facility, port

facility, multimodal transportation facility, airport, station,

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

transportation of persons, animals or goods, together with any

buildings, structures, parking areas, appurtenances, intelligent

transportation systems and other property needed to operate or

related to the operation of the transportation facility. The

term includes any improvements or substantial enhancements or

modifications to an existing transportation facility.

"Transportation project."  An undertaking by a private entity

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

improving its own transportation facilities, to provide or

improve a transportation facility or transportation-related

service which is totally or partially located within this

Commonwealth.

§ 9104.  Public-Private Transportation Partnership Board.

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

as the Public-Private Transportation Partnership Board.

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

following members:

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

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

employee of the department.

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

be an employee of the Office of the Budget.

(3)  Four members appointed by the General Assembly under

subsection (c).

(4)  One member appointed by the Governor under

subsection (d).

(c)  Legislative appointments.--

(1)  Appointments of members by the General Assembly

shall be made as follows:

(i)  One individual appointed by the President pro

tempore of the Senate.

(ii)  One individual appointed by the Minority Leader

of the Senate.

(iii)  One individual appointed by the Speaker of the

House of Representatives.

(iv)  One individual appointed by the Minority Leader

of the House of Representatives.

(2)  Legislative appointees shall serve at the pleasure

of the appointing authority.

(3)  Legislative appointees shall:

(i)  Be residents of this Commonwealth, of mature

judgment and broad experience.

(ii)  Have expertise or substantial experience in one

or more of the following areas:

(A)  Transportation.

(B)  Finance.

(C)  Law.

(D)  Land use and public planning.

(4)  Legislative appointees may not hold any other

position as an elected official or employee of the

Commonwealth.

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

subsection (b)(4):

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

official or employee of the Commonwealth.

(2)  Shall have expertise or substantial experience in

one or more of the following areas:

(i)  Transportation.

(ii)  Finance.

(iii)  Law.

(iv)  Land use and public planning.

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

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

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

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

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

entitled to no compensation for their services as members of the

board but shall be entitled to reimbursement by the department

for all necessary and reasonable expenses incurred in connection

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

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

shall appoint initial board members within 30 days of the

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

board, the appointing authority shall appoint a successor member

within 30 days of the vacancy.

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

term of office shall directly or indirectly own, have any

significant financial interest in, be associated with or receive

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

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

private transportation partnership agreement.

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

board:

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

the Right-to-Know Law.

(2)  The State Adverse Interest Act.

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

open meetings) and 11 (relating to ethics standards and

financial disclosure).

§ 9105.  Duties of board.

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

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

(2)  Adopt guidelines establishing the procedure by which

a public entity may submit a request for a transportation

project or a private entity may submit an unsolicited plan

for a transportation project to the board.

(3)  Consult with persons affected by proposed

transportation projects.

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

requests or plans for transportation projects are in the best

interests of the Commonwealth and a public entity, approve

the requests or plans for transportation projects. The board

shall approve a proposed transportation project by adopting a

resolution. A copy of the resolution shall be delivered to

the chairman and minority chairman of the Transportation

Committee of the Senate and the chairman and minority

chairman of the Transportation Committee of the House of

Representatives.

(5)  Submit an annual report to the General Assembly

detailing all transportation projects evaluated and

resolutions adopted.

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

public policy and public interest and shall not be considered

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

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

(relating to judicial review of Commonwealth agency action) and

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

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

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

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

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

resolution rescinding the approval of a transportation

project if the transportation facility which is the subject

of the transportation project is owned by the Commonwealth.

(2)  If the General Assembly adopts the concurrent

resolution within the time period under paragraph (1) by

majority vote in both the Senate and the House of

Representatives, the transportation project shall be deemed

disapproved.

(3)  If the General Assembly fails to adopt the

concurrent resolution by majority vote in both the Senate and

the House of Representatives within the time period under

paragraph (1), the transportation project shall be deemed

approved.

§ 9106.  Operation of board.

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

necessary assistance to assist the board in carrying out its

duties and responsibilities, including retention of legal,

financial and technical consultants to assist with this role.

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

analysis of a request or recommendation prior to approval by the

board.

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

public-private transportation project, the department shall

retain oversight and monitor the public-private transportation

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

§ 9107.  Solicitations for transportation projects.

A public entity may solicit transportation projects through a

request for transportation projects. The public entity shall

give public notice of a request for transportation projects

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

development entities). Offerors shall submit their responses to

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

for transportation projects. A public entity shall evaluate each

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

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

prepare and submit a request to the board to review the

transportation project in accordance with this chapter.

§ 9108.  Transportation projects.

A public entity which seeks to undertake a transportation

project which has not been previously approved by the board

shall submit a request for the transportation project to the

board.

§ 9109.  Requests.

A request may be solicited or unsolicited and may provide for

the development or operation of transportation facilities using

a variety of project delivery methods and forms of agreement.

The methods may include:

(1)  Predevelopment agreements leading to other

implementing agreements.

(2)  A design-build agreement.

(3)  A design-build-operate agreement.

(4)  A design-build-maintain agreement.

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

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

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

(8)  An operate-maintain agreement.

(9)  A concession providing for the development entity to

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

transportation facility.

(10)  Any other innovative or nontraditional project

delivery method or agreement or combination of methods or

agreements that the public entity determines will address the

transportation needs of the Commonwealth and the public

entity and serve the public interest.

§ 9110.  Selection of development entities.

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

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

public entity may enter into a contract for the transportation

project by competitive sealed proposals.

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

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

solicit proposals through a request for proposals.

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

of a request for proposals consistent with regulations adopted

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

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

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

(1)  Electronic publication which is accessible to the

general public.

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

(relating to use of trade publications).

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

mailing list of the public entity.

(4)  Publication in a newspaper of general circulation.

(5)  Where prequalification is a requirement of

submitting a proposal, notification to all private entities

who have been prequalified by the public entity.

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

proposals shall be made available to any interested person upon

request to the public entity. A public entity may establish

procedures for the distribution of a request for proposals,

including the imposition of a fee to reimburse the public entity

for the costs of photocopying and mailing.

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

proposals to ensure that their proposals are received prior to

the time and date established for receipt of the proposals.

Proposals shall be submitted in the format required by the

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

disclosure of their contents to competing offerors.

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

proposal to determine which proposal is in the best interest of

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

may consider any of the following:

(1)  Cost.

(2)  Price.

(3)  Financial commitment.

(4)  Innovative financing.

(5)  Bonding.

(6)  Technical, scientific, technological or

socioeconomic merit.

(7)  Financial strength and viability.

(8)  Design, operation and feasibility of the

transportation project.

(9)  Public reputation, qualifications, industry

experience and financial capacity of the private entity.

(10)  The ability of the transportation project to

improve economic growth, to improve public safety, to reduce

congestion, to increase capacity or to rehabilitate,

reconstruct or expand an existing transportation facility.

(11)  The compatibility of the proposal with existing

local and regional land use plans.

(12)  The commitment of local communities to approve land

use plans in preparation for the transportation project.

(13)  Other factors deemed appropriate by the public

entity.

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

evaluation factor shall be fixed prior to opening the proposals

and the public entity shall give substantial weight and priority

to the following factors:

(1)  The offeror commits to using American-made

construction materials.

(2)  The offeror commits to using Pennsylvania-made

steel.

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

in the United States.

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

in this Commonwealth.

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

in this Commonwealth.

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

the Commonwealth, the department is required to invite its

comptroller to participate in the evaluation as a nonvoting

member of any evaluation committee. No individual who has been

employed by an offeror within the last two years may participate

in the evaluation of proposals.

(i)  Discussion with responsible offerors and revision of

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

discussions and negotiations may be conducted with responsible

offerors for the purpose of clarification and of obtaining best

and final offers. Responsible offers shall be accorded fair and

equal treatment with respect to any opportunity for discussion

and revision of proposals. In conducting discussions, there

shall be no disclosure of any information derived from proposals

submitted by competing offerors.

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

whose proposal is determined in writing to be in the best

interests of the public entity, taking into consideration all

evaluation factors, shall be selected for contract negotiation.

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

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

partnership agreement is executed by all parties when it is in

the best interests of the public entity.

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

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

transportation partnership agreement with the responsible

offeror. The public-private transportation partnership agreement

shall be consistent with the requirements of this chapter. If

agreement cannot be reached with the best qualified responsible

offeror, then negotiations will be formally terminated with the

offeror. If proposals were submitted by one or more other

responsible offerors, negotiations may be conducted with the

other responsible offeror or responsible offerors in the order

of their respective qualification ranking. The contract may be

awarded to the responsible offeror then ranked as best

qualified.

(m)  Resolution of controversies involving the

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

entity is aggrieved by a selection under this section and the

public entity or proprietary public entity in the invitation or

contract is the Commonwealth, the prospective offeror, offeror

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

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

legal and contractual remedies).

(n)  Resolution of controversies not involving the

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

selection under this section and the proprietary public entity

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

development entity may file a claim with the court of common

pleas where the proprietary public entity is located. The

processes for the filing and resolution of claims, including

rights, contents, timing, evaluation, determination and

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

apply insofar as they are practicable.

§ 9111.  Public-private transportation partnership agreement.

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

partnership agreement shall include the following provisions:

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

leasing, acquisition or interest in, financing, installation,

construction, reconstruction, replacement, expansion,

operation, maintenance, improvement, equipping, modification,

expansion, enlargement, management, running, control and

operation of the public-private transportation project.

(2)  The term of the public-private transportation

partnership agreement.

(3)  The type of property interest or other relationship

the development entity will have in or with respect to the

public-private transportation partnership project, including

acquisition of rights-of-way and other property interests

that may be required.

(4)  Authorization for the proprietary public entity or

its authorized representatives to inspect all assets and

properties of the public-private transportation project and

all books and records of the development entity relating to

the public-private transportation project to review the

development entity's performance under the public-private

transportation partnership agreement.

(5)  Grounds for termination of the public-private

transportation partnership agreement by the parties.

(6)  Procedures for amendment of the public-private

transportation partnership agreement.

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

breach, default or delay.

(8)  Requirements for a development entity to provide

performance and payment bonds, parent company guarantees,

letters of credit or other acceptable forms of security in an

amount acceptable to the proprietary public entity.

(9)  A requirement that ownership of a transportation

facility acquired or constructed go to or remain with the

proprietary public entity.

(10)  Standards for construction, maintenance and

operation of the public-private transportation project if the

activities are to be performed by the development entity.

(11)  Standards for capital improvement or modification

of the public-private transportation project if they are to

be made by the development entity.

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

be made by the proprietary public entity to the development

entity, including availability payments, performance-based

payment and payments of money and revenue-sharing with the

development entity.

(13)  Standards relating to how the parties will allocate

and share management of the risks of the public-private

transportation project.

(14)  Standards relating to how the parties will allocate

costs of development of the public-private transportation

project, including any cost overruns.

(15)  Standards relating to damages to be assessed for

nonperformance, specifying remedies available to the parties

and dispute resolution procedures.

(16)  Standards relating to performance criteria and

incentives.

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

private transportation partnership agreement, a

transportation facility that was the subject of the public-

private transportation partnership agreement must be in a

state of proper maintenance and repair and shall be returned

to the proprietary public entity in satisfactory condition at

no further cost to the proprietary public entity.

(18)  Provisions for law enforcement related to the

public-private transportation project.

(19)  An obligation of the development entity to offer

employment to any employee of the proprietary public entity

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

private transportation partnership agreement and who is in

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

transportation partnership agreement, including salary,

retirement, health and welfare and benefits which are

substantially identical to the benefits received by the

employees immediately prior to execution of the public-

private transportation partnership agreement for the term of

the collective bargaining agreement of those employees in

effect.

(20)  Other terms and provisions as required under this

chapter or agreed to by the development entity and the

proprietary public entity.

(21)  An employee covered under a collective bargaining

agreement affected by a public-private transportation

partnership agreement shall be reassigned, without loss of

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

within the same worksite where applicable or within a

remaining proximate worksite of other transportation

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

position held within the same county maintenance district or,

in the case of regional transit authority, a position held

within that regional transit authority as applicable. Nothing

in this paragraph shall prevent an employee from choosing

employment with the private entity.

(22)  Provisions under which the development entity

agrees to develop, adopt and implement binding policies or

guidelines to ensure the following:

(i)  That all persons are accorded equal opportunity

in employment.

(ii)  That disadvantaged businesses, as certified and

listed by the Department of General Services in

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

disadvantaged businesses), are accorded equal opportunity

in purchasing, contracting and subcontracting associated

with a public-private transportation partnership

agreement. This paragraph includes a development entity's

contractors, subcontractors, assignees, lessees, agents,

vendors and suppliers.

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

public-private transportation partnership agreement with any

development entity that includes the provisions under subsection

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

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

the department from entering into a public-private

transportation partnership agreement with another Commonwealth

agency in accordance with this chapter.

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

public entity from entering into a public-private transportation

partnership agreement with one or more public entities in

accordance with this chapter.

(e)  Environmental costs.--

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

private transportation partnership agreement that it will pay

or reimburse, on terms that it deems appropriate, the

development entity for actual costs associated with necessary

remediation for existing environmental contaminants located

on, under or emanating from the real property associated with

a public-private transportation project as of the date the

development entity assumes responsibility for the public-

private transportation project. If the public-private

transportation partnership agreement provides for

environmental remediation, the public-private transportation

partnership agreement shall require that the proprietary

public entity be given:

(i)  Prompt notice of any claim against the

proprietary public entity or a third party pertaining to

the contaminants.

(ii)  The right to elect to undertake the necessary

remediation.

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

response to any claim.

(iv)  The right of prior approval before the

development entity may settle any claim.

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

section may be for anything other than actual costs incurred

by a development entity to remediate the environmental

contamination on, under or emanating from the real property

associated with the public-private transportation project as

of the date the development entity assumes responsibility for

the public-private transportation project.

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

will be imposed for use of the public-private transportation

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

collected shall be determined in the public-private

transportation partnership agreement. If a user fee is proposed

as part of the public-private transportation project, a

proprietary public entity shall include provisions in the

agreement that authorize the collection of user fees, tolls,

fares or similar charges, including provisions that:

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

transportation project.

(2)  Establish circumstances under which the proprietary

public entity may receive a share of revenues from the

charges.

(3)  Govern the enforcement of electronic tolls,

including provisions for use of available technology.

(4)  Establish payment collection standards, including

provisions for enforcement of nonpayment and penalties.

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

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

private transportation project where tolls or user fees are

collected by means of an electronic or other automated or

remote form of collection, the collection provisions of

section 8117 (relating to electronic toll collection) shall

apply except that the development entity shall possess all of

the rights, roles, limitations and responsibilities of the

Pennsylvania Turnpike Commission.

(g)  Amounts received under a public-private transportation

partnership agreement.--The net proceeds received by the

proprietary public entity under a public-private transportation

partnership agreement shall be available exclusively to provide

funding for transportation needs in this Commonwealth. The use

of the proceeds or other revenues from the public-private

transportation project shall comply with Federal or State law

restricting or limiting the use of revenue from the public-

private transportation project based on its public funding.

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

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

subsection unless the context clearly indicates otherwise:

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

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

minority groups, who:

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

maintain a competitive position in the economy because of

social disadvantages.

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

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

an adjudication letter from the United States Veterans

Administration establishing a service-connected disability

rating or a disability determination from the United States

Department of Defense.

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

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

"Veteran."  An individual who:

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

of the four current branches and all previous branches,

including a reserve component or the National Guard.

(2)  Was released or discharged from active military

service under conditions other than dishonorable.

(3)  Possesses a certificate of release or discharge from

active duty.

§ 9112.  Records of requests.

The following shall apply:

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

party to a public-private transportation partnership

agreement, the identity of the development entity selected,

the contents of the response of the development entity to the

request for proposals, the final proposal submitted by the

development entity and the form of the public-private

transportation partnership agreement shall be made public.

Any financial information of a development entity that was

requested in the request for proposals or during discussions

and negotiations to demonstrate the economic capability of a

development entity to fully perform the requirements of the

public-private transportation partnership agreement shall not

be subject to public inspection.

(2)  A proprietary public and a development entity may

agree, in their discretion, to make public any information

described under paragraph (1) that would not otherwise be

subject to public inspection.

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

private transportation partnership agreement for default,

rejects a private entity on the grounds that the private

entity is not responsible or suspends or debars a development

entity, the private entity or development entity, as

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

copy of the information contained in the file of the private

entity or development entity maintained by the proprietary

public entity under a contractor responsibility program.

(4)  The following information shall not be public:

(i)  Information relating to proprietary information,

trade secrets, patents or exclusive licenses,

architectural and engineering plans and information

relating to competitive marketing materials and

strategies.

(ii)  Security information, including risk prevention

plans, detection and countermeasures, emergency

management plans, security and surveillance plans,

equipment and usage protocols and countermeasures.

(iii)  Records considered nonpublic matters or

information by the Securities and Exchange Commission

under 17 CFR 200.80 (relating to commission records and

information).

(iv)  Any financial information deemed confidential

by the  proprietary public entity upon a showing of good

cause by an offeror or development entity.

(v)  Records prepared or utilized to evaluate a

proposal.

§ 9113.  Use of intellectual property.

Unless otherwise agreed and except to the extent not

transferable by law, the department or a proprietary public

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

submitted proposal, including the technologies, techniques,

methods, processes and information contained in the proposal.

Notice of nontransferability by law shall be given to the

department and the proprietary public entity in response to the

request for proposals.

§ 9114.  Police powers and violations of law.

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

private transportation project is a highway, bridge, tunnel

overpass or similar transportation facility for motor vehicles,

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

Commonwealth or, if applicable, any local jurisdiction shall be

the same as those applying to conduct on similar transportation

facilities in this Commonwealth or the local jurisdiction.

Punishment for offenses shall be prescribed by law for conduct

occurring on similar transportation facilities in this

Commonwealth or the local jurisdiction.

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

arrests for violations of law in this Commonwealth shall have

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

public-private transportation project as they have in their

respective areas of jurisdiction. The grant of authority under

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

garages and other improvements of a development entity to any

greater degree than the police power extends to any other

private offices, buildings, garages and other improvements.

§ 9115.  Environmental and other authorizations.

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

other provision of law, neither soliciting nor approving a

request for proposals, nor executing a public-private

transportation partnership agreement under this chapter shall

constitute the submission of a preliminary plan or design to the

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

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

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

transportation partnership agreement may require that prior to

commencing any construction in connection with the development,

operation or financing of any public-private transportation

project if the agreement requires environmental authorizations

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

following:

(1)  Secure all necessary environmental permits and

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

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

Environmental Remediation Standards Act, obtain the approval

of the Department of Environmental Protection.

(2)  Complete environmental remediation of the site on

which the public-private transportation project is to be

located, including acts required under any agreement entered

into with the Department of Environmental Protection for

remediation of the site under the Land Recycling and

Environmental Remediation Standards Act.

§ 9116.  Taxation of development entity.

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

received by a development entity pursuant to a public-private

transportation partnership agreement are subject to a tax

imposed by a political subdivision prior to the effective date

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

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

tax.

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

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

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

development entity pursuant to a public-private transportation

partnership agreement.

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

partnership agreement, lease, concession, franchise or other

contract involving real property of a public-private

transportation project shall be subject to a Commonwealth or

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

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

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

Code of 1971, or a successor statute.

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

private transportation project shall be considered public

property and shall be exempt from ad valorem property taxes and

special assessments levied against property by the Commonwealth

or any political subdivision.

§ 9117.  Power of eminent domain.

The exercise of the power of eminent domain by any condemnor

to acquire property for public-private transportation project

purposes under a public-private transportation partnership

agreement shall be considered a taking for a public purpose and

not for a private purpose or for private enterprise.

§ 9118.  Sovereign immunity.

Under section 11 of Article 1 of the Constitution of

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

Assembly that the Commonwealth, and its officials and employees

and a municipal authority, and its officials and employees,

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

sovereign immunity and official immunity and remain immune from

suit except as provided in section 9119 (relating to specific

performance). A claim against the Commonwealth and its officials

and employees or municipal authority and its officials and

employees shall be brought only in such manner and in such

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

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

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

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

contractual remedies) or any procurement law applicable to a

municipal authority.

§ 9119.  Specific performance.

A proprietary public entity is authorized to agree that

specific performance shall be available to a development entity

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

representations, covenants, warranties or other obligations

under the public-private transportation partnership agreement to

the extent set forth in the public-private transportation

partnership agreement.

§ 9120.  Applicability of other laws.

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

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

development, operation or financing of a transportation project

shall apply to a public-private transportation partnership

agreement entered into between a proprietary public entity and a

development entity to the extent they are applicable on the date

the public-private transportation partnership agreement is fully

executed. These provisions include:

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

to as the Separations Act.

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

as the Pennsylvania Prevailing Wage Act.

(b)  Limitation.--The following apply:

(1)  If the public entity or the proprietary public

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

procurement) shall apply only to the extent provided under

paragraph (2).

(2)  The following provisions shall apply if the public

entity or the proprietary public entity is the Commonwealth:

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

limitations).

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

suspension).

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

account system).

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

plant).

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

records).

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

procurement records).

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

contractual remedies).

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

transportation project which a public entity is authorized under

law to undertake on the effective date of this subsection.

§ 9121.  Adverse interest.

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

apply:

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

entity which submits a response to a request for proposals

under section 9110 (relating to selection of development

entities), a request for transportation projects under

section 9107 (relating to solicitations for transportation

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

State adviser or a State consultant for the department or the

Pennsylvania Turnpike Commission, shall not be deemed to be

in violation of the State Adverse Interest Act while engaging

in any of the following activities:

(i)  Preparing or submitting a response to a request

for proposals or transportation projects.

(ii)  Participating in any activity with the

department related to a request for proposals or

transportation projects.

(iii)  Negotiating and entering into any contract

lease or public-private transportation partnership

agreement which results from a request for proposals or

transportation projects.

(iv)  Engaging in any other action taken in

furtherance of the purposes of this chapter.

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

request for proposals or transportation projects or acts as a

consultant or an adviser to a private entity which submits a

response to a request for proposals or transportation

projects to the department shall be prohibited from

consulting or providing advice to the department on the

review or approval of the response to the request for

proposals or transportation projects as submitted.

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

request for proposals or transportation projects or acts as a

consultant or an advisor to a private entity which submits a

response to a request for proposals or transportation

projects to the board shall be prohibited from consulting or

providing advice to the department on the review or approval

of the response to the request for proposals or

transportation projects so submitted.

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

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

subsection unless the context clearly indicates otherwise:

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

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

Interest Act.

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

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

Interest Act.

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

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

(1)  The department or a proprietary public entity may

accept from the United States or any of its agencies funds

that are available to the Commonwealth for carrying out this

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

loan guarantee or otherwise.

(2)  The department or a proprietary public entity is

authorized to assent to any Federal requirements, conditions

or terms of any Federal funding accepted by the department or

a proprietary public entity under this section.

(3)  The department or a proprietary public entity may

enter into agreements or other arrangements with the United

States or any of its agencies as may be necessary for

carrying out the purposes of this chapter.

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

proprietary public entity may accept from any source any grant,

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

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

for carrying out the purpose of this chapter.

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

between the development entity and a proprietary public entity,

any public-private transportation project may be financed, in

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

by a proprietary public entity, a development entity or an

affected jurisdiction.

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

public entity may combine Federal, State, local and private

funds to finance a public-private transportation project under

this chapter.

§ 9123.  Public-Private Transportation Account.

(a)  Establishment.--

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

separate account to be known as the Public-Private

Transportation Account.

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

purposes enumerated under subsection (c).

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

(1)  The department shall deposit in the account the

following:

(i)  All money received by the department pursuant to

the terms of a public-private transportation partnership

agreement under which the department is the proprietary

public entity.

(ii)  Repayment of any loans from the account made

under this chapter.

(iii)  Subject to the provisions of any public-

private transportation partnership agreement under which

the department is the proprietary public entity, monetary

damages and other amounts for failure by a development

entity to comply with the terms of the public-private

transportation partnership agreement.

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

transportation partnership agreement under which the

department is the proprietary public entity, payments

made from any insurance proceeds or reserve funds or

performance or payment bonds in connection with a public-

private transportation project.

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

account.

(2)  The Secretary of the Budget shall establish any

restricted accounts within the account as the secretary deems

necessary for the proper administration of the account.

(3)  All money related to any public-private

transportation partnership agreement in which the department

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

account, but shall be held by the proprietary public entity

or its agent.

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

continuously appropriated to the department for the following

purposes:

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