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PRIOR PRINTER'S NO. 3437
PRINTER'S NO. 3658
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
2113
Session of
2015
INTRODUCED BY EVANKOVICH, MILLARD, CUTLER, WARD, SAYLOR AND
ZIMMERMAN, MAY 27, 2016
AS REPORTED FROM COMMITTEE ON STATE GOVERNMENT, HOUSE OF
REPRESENTATIVES, AS AMENDED, JUNE 28, 2016
AN ACT
Amending Title 62 (Procurement) of the Pennsylvania Consolidated
Statutes, establishing the Public-Private Partnership Pilot
Program and the State Public-Private Partnership Board.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Title 62 of the Pennsylvania Consolidated
Statutes is amended by adding a chapter to read:
CHAPTER 47
PUBLIC-PRIVATE PARTNERSHIP PILOT PROGRAM
Sec.
4701. Definitions.
4702. State Public-Private Partnership Board.
4703. Public-Private Partnership Pilot Program.
4704. Solicitation and unsolicited submission of eligible
projects for consideration as pilot projects.
4705. Solicitation of proposals for public-private partnership
agreements.
4706. Evaluation and selection of public-private partnership
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agreement proposal.
4707. Implementation of public-private partnership agreement.
4708. Service contracts.
4709. Affected local jurisdictions.
4710. Dedication of public property.
4711. Powers and duties of operator.
4712. Federal, State and local assistance.
4713. Material default and remedies.
4714. Utility crossing.
4715. Governmental immunity.
4716. Special approval.
4717. Exclusivity.
4718. Use of intellectual property.
4719. Applicability.
4720. Pennsylvania Public Utility Commission.
§ 4701. 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:
"Affected local jurisdiction." A local agency in which all
or a portion of an eligible project is located.
"Authorized pilot project." A pilot project that is the
subject of a public-private partnership agreement.
"Board." The State Public-Private Partnership Board
established by this chapter.
"Department." The Department of Community and Economic
Development of the Commonwealth.
"Eligible project." Any of the following:
(1) An educational facility. This paragraph includes:
(i) A school building.
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(ii) A facility that is functionally related and
subordinate to a school building, including a stadium or
other facility primarily used for school events.
(iii) Land that is functionally related and
subordinate to a school building.
(iv) Depreciable property provided for use in an
educational facility operated as part of the public
school system or as an institution of higher education.
(2) A building or facility for principal use by a
government agency.
(3) A building or facility used for public water supply
or treatment, storm water disposal or waste treatment
TREATMENT OR DISPOSAL OR WASTEWATER TREATMENT OR DISPOSAL or
used for public parking facilities.
(4) An improvement, together with equipment, necessary
to enhance public safety and security of a building to be
principally used by a government agency.
(5) Telecommunications and other communications
infrastructure.
(6) Utility infrastructure.
(7) A STRUCTURE OR FACILITY FULLY OR PARTIALLY OWNED BY
A GOVERNMENT AGENCY.
"Government agency." As defined in section 3102 (relating to
definitions).
"Lease payment." A form of payment, including a land lease,
by a local agency to the operator for the use of an eligible
project.
"Local agency." A county, city, borough, incorporated town,
township, SCHOOL DISTRICT, county institution, local authority
or a joint or cooperative body of local agencies or an
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instrumentality, authority or corporation thereof which has
authority to enter into a contract.
"Material default." A default by the operator in the
performance of the operator's duties under section 4711(e)
(relating to powers and duties of operator) that jeopardizes
adequate service to the public from an eligible project.
"Offeror." A private entity that submits a proposal under
this chapter.
"Operator." The private entity that is responsible for an
eligible project or a portion of an eligible project, including
acquisition, design, construction, improvement, renovation,
expansion, equipping, maintenance and operation.
"Pilot project." An eligible project approved as a pilot
project under section 4702(l)(6) (relating to State Public-
Private Partnership Board).
"Private entity." An individual, corporation, limited
liability company, partnership, joint venture or other private
business entity.
"Public-private partnership agreement." An agreement between
a government agency and a private entity that involves the
development or operation, or combination thereof, of an eligible
project by the private entity. The agreement may consist of the
following:
(1) A predevelopment agreement leading to an
implementing agreement.
(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.
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(7) A design-build-finance-operate-maintain agreement.
(8) An operate-maintain agreement.
(9) A concession providing for the private entity to
design, build, operate, maintain, manage or lease an eligible
project.
(10) Any other delivery method or agreement or
combination of methods or agreements that the government
agency determines will address the needs of the Commonwealth
and the government agency and serve the public interest.
The term shall not include the acquisition of an eligible
project by a public utility under 66 Pa.C.S. § 102 (relating to
definitions).
"Request for proposals." All documents, including those
either attached or incorporated by reference, used for
soliciting proposals.
"Responsible offeror." An offeror that:
(1) Has submitted a responsive proposal.
(2) Possesses the capability to fully perform the
contract requirements in all respects.
(3) Has the integrity and reliability to assure good
faith performance.
"Responsive proposal." A proposal that conforms in all
material respects to the requirements and criteria in a request
for proposals.
"Revenue." Any of the following generated by an eligible
project:
(1) A user fee.
(2) A lease payment.
(3) A service payment.
"Sealed proposal." A proposal, the contents of which are not
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disclosed until the proposal receipt date.
"Secretary." The Secretary of Community and Economic
Development of the Commonwealth.
"Service payment." Payment to the operator of an eligible
project pursuant to a public-private partnership agreement.
"User fee." A rate or other charge imposed by the operator
of an eligible project for use of the eligible project pursuant
to a public-private partnership agreement.
§ 4702. State Public-Private Partnership Board.
(a) Establishment.--The State Public-Private Partnership
Board is established.
(b) Composition.--The board shall be composed of the
following members:
(1) The secretary, who shall be the chairperson of the
board, or a designee who must be an employee of the
department.
(2) Four members appointed by the General Assembly under
subsection (c).
(3) One member appointed by the Governor under
subsection (d).
(4) One member from each of the following organizations:
(i) The Pennsylvania Municipal League.
(ii) The Pennsylvania State Association of Boroughs.
(iii) The Pennsylvania State Association of Township
Supervisors.
(iv) The County Commissioners Association of
Pennsylvania.
(v) The Pennsylvania Municipal Authorities
Association.
(vi) The Pennsylvania School Boards Association.
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(vii) The Pennsylvania Chamber of Business and
Industry.
(c) Legislative appointments.--
(1) Members appointed by the General Assembly under
subsection (b)(2) shall be 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 must be residents of this
Commonwealth and shall serve at the pleasure of the
appointing authority.
(3) Legislative appointees must have expertise or
substantial experience in one or more of the following areas:
(i) Local government.
(ii) Finance.
(iii) Law.
(iv) Public school administration.
(v) Public works construction.
(vi) Wastewater or storm water treatment and
disposal or public water supply and treatment.
(d) Gubernatorial appointments.--A member appointed by the
Governor under subsection (b)(3):
(1) Must be a resident of this Commonwealth and have
expertise or substantial experience in one or more of the
following areas:
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(i) Local government.
(ii) Finance.
(iii) Law.
(iv) Public school administration.
(v) Public works construction.
(vi) Wastewater or storm water treatment and
disposal or public water supply and treatment.
(2) Shall serve at the pleasure of the Governor.
(e) Organization appointments.--
(1) The members under subsection (b)(4) shall be
appointed by the secretary from a list of nominees submitted
by each organization or from the name of at least one
individual submitted by each organization.
(2) Appointees must be residents of this Commonwealth
and shall serve at the pleasure of the secretary.
(f) Quorum.--Seven 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.
(g) 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.
(h) 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.
(i) Financial interests.--
(1) No member of the board, during the member's term of
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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 government agency or private entity seeking to
engage in a public-private partnership agreement. This
subsection shall not apply to the salary of an employee of a
government agency.
(j) Technical assistance.--The department shall supply all
necessary assistance to the board in carrying out the board's
duties and responsibilities under this chapter, including
retention of legal, financial and technical consultants and
staff to assist with this role.
(k) Applicability of other statutes.--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 act of July 19, 1957 (P.L.1017, No.451), known
as the State Adverse Interest Act.
(3) 65 Pa.C.S. Chs. 7 (relating to open meetings) and 11
(relating to ethics standards and financial disclosure).
(l) Duties of board.--The board shall:
(1) Meet as often as necessary, but at least annually.
(2) Administer the Public-Private Partnership Pilot
Program.
(3) Adopt guidelines establishing the procedure by which
a government agency may submit to the board an eligible
project for consideration as a pilot project.
(4) Establish a reasonable fee to cover the costs of
processing, reviewing and evaluating proposals, including
reasonable attorney fees and fees for financial and other
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necessary advisers or consultants.
(5) Consult with persons affected by proposed public-
private partnership agreements.
(6) Evaluate and, where the board finds that an eligible
project submitted to the board under section 4704(d)
(relating to solicitation and unsolicited submission of
eligible projects for consideration as pilot projects) is in
the best interest of the Commonwealth and the government
agency and meets the criteria in section 4703(d) (relating to
Public-Private Partnership Pilot Program), approve the
eligible project for a pilot project. The board shall approve
a pilot project by adopting a resolution.
(7) Submit an annual report to the General Assembly
detailing all eligible projects evaluated and pilot project
resolutions adopted for that year.
(m) Actions.--Actions by the board shall be determinations
of public policy 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.
§ 4703. Public-Private Partnership Pilot Program.
(a) Establishment.--The Public-Private Partnership Pilot
Program is established to expand the usage of public-private
partnership agreements for the development and operation of
eligible projects across this Commonwealth.
(b) Duration.--The Public-Private Partnership Pilot Program
shall expire as of the latest expiration date of a public-
private partnership agreement that is entered into under the
pilot program.
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(c) Program description.--The Public-Private Partnership
Pilot Program shall consist of 12 authorized pilot projects.
There may be no more than two authorized pilot projects within
each of six regions established by the department.
(C) PROGRAM DESCRIPTION.--THE PUBLIC-PRIVATE PARTNERSHIP
PILOT PROGRAM SHALL CONSIST OF 16 AUTHORIZED PILOT PROJECTS, AS
FOLLOWS:
(1) FOUR AUTHORIZED PILOT PROJECTS FOR A BUILDING OR
FACILITY USED FOR PUBLIC WATER SUPPLY OR TREATMENT, STORM
WATER TREATMENT OR DISPOSAL OR WASTEWATER TREATMENT OR
DISPOSAL, EACH OF WHICH IS PROPOSED AND SUBMITTED TO THE
BOARD BY MORE THAN ONE LOCAL AGENCY.
(2) TWELVE AUTHORIZED PILOT PROJECTS TO WHICH THE
FOLLOWING SHALL APPLY:
(I) THERE MAY BE NO MORE THAN TWO AUTHORIZED PILOT
PROJECTS WITHIN EACH OF SIX REGIONS ESTABLISHED BY THE
DEPARTMENT; AND
(II) THREE OF THE AUTHORIZED PILOT PROJECTS SHALL BE
SET ASIDE FOR ELIGIBLE PROJECTS PROPOSED AND SUBMITTED TO
THE BOARD BY A LOCAL AGENCY.
(d) Criteria.--
(1) Only EXCEPT AS PROVIDED IN PARAGRAPHS (2) AND (3),
ONLY eligible projects valued at $25,000,000 or more are
eligible for consideration and approval as a pilot project.
(2) THE $25,000,000 THRESHOLD UNDER PARAGRAPH (1) IS
WAIVED FOR CONSIDERATION AND APPROVAL OF A PROPOSED PILOT
PROJECT UNDER SUBSECTION (C)(2)(II).
(3) ONLY ELIGIBLE PROJECTS VALUED AT $75,000,000 OR MORE
ARE ELIGIBLE FOR CONSIDERATION AND APPROVAL AS A PILOT
PROJECT UNDER SUBSECTION (C)(1).
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(2) (4) The board shall consider and approve a pilot
project based on one or more of the following factors:
(i) The project's benefits to public health.
(ii) The project's benefits to public safety.
(iii) The project's benefits to the environment.
(iv) The contribution to and impact of the project
on economic development.
(v) Whether the project improves the ability of a
government agency to come into compliance with Federal
and State statutes, regulations and standards.
(vi) The cost effectiveness of the project.
(3) (5) The board may approve pilot projects from among
requests submitted by government agencies under section
4704(d) (relating to solicitation and unsolicited submission
of eligible projects for consideration as pilot projects),
including requests resulting from solicitations under section
4704(a) and requests resulting from unsolicited submissions
made under section 4704(b).
§ 4704. Solicitation and unsolicited submission of eligible
projects for consideration as pilot projects.
(a) Procedure.--
(1) A government agency may solicit eligible projects
for consideration as a pilot project through a request for
pilot projects.
(2) The government agency shall give public notice of a
request for pilot projects consistent with this section.
(3) Offerors must submit their responses to the
government agency in the form and manner required by the
request for pilot projects. Each response shall be
accompanied by the material and information listed in
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subsection (c).
(b) Private entities.--A private entity may request
consideration of an eligible project for a pilot project. The
request may be submitted to the applicable government agency.
(c) Material and information.--A response under subsection
(a) or a request under subsection (b) shall be accompanied by
the following material and information:
(1) A topographic map on a scale of 1:2,000 or other
appropriate scale indicating the location of the eligible
project.
(2) A description of the eligible project, including the
conceptual design of the facility or a conceptual plan for
the provision of services and a schedule for the initiation
of and completion of the eligible project to include the
proposed major responsibilities and timeline for activities
to be performed by both the government agency and private
entity.
(3) A statement of the method by which the private
entity proposes to secure the necessary property interests
required for the eligible project. The statement shall
include the following:
(i) The names and addresses, if known, of the
current owners of the property needed for the eligible
project.
(ii) The nature of the property interests to be
acquired.
(4) Information relating to the current plans, if any,
for development of facilities to be used by a government
agency that are similar to the eligible project being
proposed by the private entity.
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(5) A list of all permits and approvals required for the
eligible project from the Federal and State local and
political subdivisions FEDERAL, STATE AND LOCAL AGENCIES and
a projected schedule for obtaining the permits and approvals.
(6) A list of any utility facilities known to the
private entity that may be crossed or affected by the
eligible project and a statement of the plans of the operator
to accommodate the crossings or affected facilities.
(7) A statement of the private entity's general plans
for financing the eligible project, including the sources of
the private entity's funds.
(8) The names and addresses of the persons who may be
contacted for further information concerning the request.
(9) User fees, lease payments and other service payments
proposed in the public-private partnership agreement,
including frequency of assessments and the methodology and
circumstances for changes to the user fees, lease payments
and other service payments.
(d) Evaluation of responses and requests.--
(1) A government agency shall evaluate each response
under subsection (a) or a request under subsection (b) to
determine if the response or request is in the best interest
of the government agency.
(2) If the government agency concludes that a response
or request is in the best interest of the government agency,
the government agency may prepare and submit a request to the
board to review the eligible project for consideration and
approval as a pilot project.
§ 4705. Solicitation of proposals for public-private
partnership agreements.
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(a) Discretion to government agency.--
(1) If an eligible project is approved by the board as a
pilot project under section 4702(l)(6) (relating to State
Public-Private Partnership Board), the government agency may
enter into a public-private partnership agreement under this
chapter.
(2) After receiving approval for a pilot project under
section 4702(l)(6), a government agency may issue a request
for proposals for a public-private partnership agreement for
an eligible project.
(b) Availability to general public.--Copies of a request for
proposals shall be made available to any interested person
residing within the affected local jurisdiction upon request to
the government agency. A government agency may establish
procedures for the distribution of a request for proposals,
including the imposition of a fee to reimburse the government
agency for the costs of photocopying and mailing.
(c) Receipt of proposals.--Offerors shall submit their
sealed proposals to ensure that they are received prior to the
time and date established for receipt of the proposals. Sealed
proposals shall be submitted in the format required by the
government agency. All sealed proposals shall be opened at the
time, date and place designated in the request for proposals.
(d) Fee.--The government agency may charge a reasonable fee
to cover the costs of processing, reviewing and evaluating the
proposal, including reasonable attorney fees and fees for
financial and other necessary advisers or consultants.
§ 4706. Evaluation and selection of public-private partnership
agreement proposal.
(a) Evaluation criteria.--A government agency shall evaluate
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each responsive proposal to determine which one, if any, has the
best value for and is in the best interest of the government
agency. In making the evaluation, a government agency 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 eligible
project.
(9) Public reputation, qualifications, industry
experience and financial capacity of the private entity.
(10) The compatibility of the proposal with existing
local and county land use plans.
(11) The commitment of local communities to approve land
use plans in preparation for the project.
(12) Other factors deemed appropriate by the government
agency.
(b) Weighted consideration.--The relative importance of each
evaluation factor shall be fixed prior to opening the proposals.
(c) 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 offerors shall be accorded fair
and equal treatment with respect to any opportunity for
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discussion and revision of proposals. In conducting discussions,
there shall be no disclosure of any information derived from
proposals submitted by competing offerors.
(d) Selection for negotiation.--The responsible offeror
whose proposal is determined in writing to be the best value for
and in the best interests of the government agency and the
general public, taking into consideration all evaluation
factors, shall be selected for contract negotiation.
(e) Cancellation.--A request for proposals may be canceled
at any time prior to the time a public-private partnership
agreement is executed by all parties when it is in the best
interest of the government agency.
(f) Award.--
(1) Upon reaching an agreement with a responsible
offeror, the government agency shall enter into a public-
private partnership agreement with the responsible offeror.
The public-private partnership agreement shall be consistent
with the requirements of this chapter.
(2) (i) If agreement cannot be reached with the
responsible offeror, then negotiations shall be formally
terminated with the responsible offeror.
(ii) If proposals were submitted by one or more
other responsible offerors, negotiations may be conducted
with the other responsible offeror or offerors in the
order of their respective qualification ranking.
(iii) The public-private partnership agreement may
be awarded to the responsible offeror whose proposal is
then ranked as providing the best value.
(g) Resolution of controversies.--
(1) If a private entity is aggrieved by a selection
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under this section, a responsible offeror may, in the case of
a government agency other than a Commonwealth agency, file a
claim with the court of common pleas where the government
agency is located or, in the case of a Commonwealth agency,
file a claim with the Commonwealth Court.
(2) The process for the filing and resolution of claims,
including rights, contents, timing, evaluation, determination
and remedies, which are established in Chapter 17 (relating
to legal and contractual remedies) shall apply insofar as
practicable.
§ 4707. Implementation of public-private partnership agreement.
(a) Final approval.--Approval of the government agency is
contingent upon the private entity's agreement to enter into a
public-private partnership agreement with the government agency.
(b) Contents.--Prior to designing, constructing, improving,
renovating, expanding, equipping, maintaining or operating the
eligible project, the private entity shall enter into a public-
private partnership agreement with the government agency. The
public-private partnership agreement shall provide for all of
the following:
(1) Delivery of maintenance, performance and payment
bonds or letters of credit in connection with the
acquisition, design, construction, improvement, renovation,
expansion, equipping, maintenance or operation of the
eligible project, in the forms and amounts satisfactory to
the government agency.
(2) Review of plans and specifications for the eligible
project by the government agency and approval by the
government agency if the plans and specifications conform to
standards acceptable to the government agency, except that
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nothing in this paragraph shall be construed as requiring the
private entity to complete design of an eligible project
prior to the execution of a public-private partnership
agreement.
(3) Inspection of the eligible project by the government
agency to ensure that the operator's activities are
acceptable to the government agency in accordance with the
public-private partnership agreement.
(4) Maintenance of policies of liability insurance,
copies of which shall be filed with the government agency
accompanied by proofs of coverage and self-insurance in form
and amount satisfactory to the government agency and
reasonably sufficient to insure coverage of tort liability to
the public and employees and to enable the continued
operation of the eligible project.
(5) Monitoring of the practices of the operator by the
government agency to ensure that the eligible project is
properly maintained.
(6) Reimbursement to be paid to the government agency
for services provided by the government agency.
(7) Filing of appropriate financial statements on a
periodic basis.
(8) Policies and procedures governing the rights and
responsibilities of the government agency and the operator in
the event the public-private partnership agreement is
terminated or there is a material default by the operator.
The policies and procedures shall include conditions
governing assumption of the duties and responsibilities of
the operator by the government agency and the transfer or
purchase of property or other interests of the operator by
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the government agency.
(c) Fees.--
(1) The public-private partnership agreement may provide
for a user fee, lease payment or service payment. A copy of a
service contract must be filed with the government agency.
(2) When negotiating a user fee under this subsection,
the parties shall establish payments or fees that are the
same for a person using the facility under like conditions
and that will not materially discourage use of the eligible
project.
(3) The execution of the public-private partnership
agreement or an amendment to the public-private partnership
agreement constitutes conclusive evidence that any user fee,
lease payment or service payment complies with this chapter.
(4) A user fee or lease payment established in the
public-private partnership agreement as a source of revenue
may be in addition to or in lieu of a service payment.
(d) Grants or loans.--The government agency may agree in the
public-private partnership agreement to make a grant, if the
terms of the grant allow, or loan to the operator from an amount
received from the Federal or State local or a political
subdivision or from one of their agencies or instrumentalities A
FEDERAL, STATE OR LOCAL AGENCY OR INSTRUMENTALITY .
(e) Duties.--
(1) The public-private partnership agreement shall
incorporate the duties of the operator under this chapter and
may contain other terms and conditions that the government
agency determines serve the public purpose under section
4706(d) (relating to evaluation and selection of public-
private partnership agreement proposal).
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(2) The public-private partnership agreement may contain
any of the following:
(i) Provisions under which the government agency
agrees to provide notice of default and right to cure for
the benefit of the operator and the persons specified in
the notice as providing financing for the eligible
project.
(ii) Other lawful terms and conditions to which the
operator and the government agency mutually agree,
including provisions regarding unavoidable delays or
provisions providing for a loan of public funds to the
operator to acquire, design, construct, improve,
renovate, expand, equip, maintain or operate one or more
eligible projects.
(iii) Provisions under which the authority and
duties of the operator under this chapter shall cease and
the eligible project shall be dedicated to the government
agency or, if the eligible project is initially dedicated
by an affected local jurisdiction, to the affected local
jurisdiction for public use.
(f) Amendments.--Change in the terms of the public-private
partnership agreement, as may be agreed upon by the parties,
shall be added only by written amendment.
(g) Date.--In connection with its approval of the eligible
project, the government agency shall establish a date for the
commencement of activities related to the eligible project. The
government agency may extend the date.
(h) Public access.--
(1) Any documents created by or provided to a government
agency under this chapter shall be subject to inspection and
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copying only to the extent required under the act of February
14, 2008 (P.L.6, No.3), known as the Right-to-Know Law.
(2) Nothing in this chapter shall be construed to
abrogate the provisions of the act of November 29, 2006
(P.L.1435, No.156), known as the Public Utility Confidential
Security Information Disclosure Protection Act.
(i) Debt capacity.--No public-private partnership agreement
entered into under this chapter may enlarge, diminish or affect
the authority otherwise possessed by the government agency to
take action that would impact the debt capacity of the
Commonwealth or any of its political subdivisions LOCAL AGENCY .
§ 4708. Service contracts.
In addition to any authority conferred by statute, a
government agency may contract with an operator for the delivery
of services to be provided as part of an eligible project in
exchange for service payment and other consideration as the
government agency may deem appropriate.
§ 4709. Affected local jurisdictions.
(a) Notification.--
(1) Prior to entering into a public-private partnership
agreement with a responsible offeror in accordance with
section 4706 (relating to evaluation and selection of public-
private partnership agreement proposal), the government
agency shall notify each affected local jurisdiction by
furnishing a copy of the proposal to each affected local
jurisdiction.
(2) The responsible offeror shall reimburse the
government agency for costs incurred by the agency in
furnishing a copy of the proposal to each affected local
jurisdiction.
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(b) Comments.--Each affected local jurisdiction that is not
the applicable government agency for the respective eligible
project shall, within 30 days after receiving the notice, submit
any comments the local jurisdiction may have in writing on the
proposed eligible project to the applicable government agency
and indicate whether the eligible project is compatible with the
local ordinance requirements and other local requirements. The
comments shall be given consideration by the government agency
prior to entering a public-private partnership agreement with
the private entity.
§ 4710. Dedication of public property.
A government agency may dedicate any property interest,
including land, improvements and tangible personal property,
that the government agency has for public use in an eligible
project if it finds that doing so serves the public purpose
under section 4706(a) (relating to evaluation and selection of
public-private partnership agreement proposal) by minimizing the
cost of an eligible project to the government agency or reducing
the delivery time of an eligible project. In connection with the
dedication, a government agency may convey any property interest
that the government agency has, subject to the conditions
imposed by law, to the operator, subject to the provisions of
this chapter, for consideration as the government agency may
determine.
§ 4711. Powers and duties of operator.
(a) General rule.--The operator shall have the power to
acquire, design, construct, improve, renovate, maintain, expand,
equip or operate the eligible project and collect lease
payments, impose a user fee or enter into a service contract in
connection with the use of this power.
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(b) Right.--The operator may own, lease or acquire any other
right to use or operate the eligible project.
(c) Financing.--
(1) Notwithstanding paragraph (2), any financing of the
eligible project may be in an amount and upon such terms and
conditions as may be determined by the operator.
(2) The operator may issue debt, equity or other
securities or obligations, enter into sale and leaseback
transactions and secure any financing with a pledge of,
security interest in or lien on any or all of its property,
including all of its property interests in the eligible
project.
(d) Operation.--In operating the eligible project, the
operator may do all of the following:
(1) Make classifications according to reasonable
categories for assessment of user fees.
(2) With the consent of the government agency, make and
enforce reasonable rules to the same extent that the
government agency may make and enforce rules with respect to
similar facilities.
(e) Duties.--The operator shall:
(1) Acquire, design, construct, improve, renovate,
expand, equip, maintain or operate the eligible project in
accordance with the public-private partnership agreement.
(2) Keep the eligible project open for use by members of
the public as appropriate based upon the use of the facility
after its initial opening upon payment of the applicable user
fee, lease payment or service payment. The eligible project
may be temporarily closed because of emergencies or, with the
consent of the government agency, to protect the safety of
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the public or for reasonable construction or maintenance
procedures as specified in the public-private partnership
agreement.
(3) Maintain or provide by contract for the maintenance
of the eligible project, if required by the public-private
partnership agreement.
(4) Cooperate with the government agency in making best
efforts to establish any interconnection with the eligible
project requested by the government agency.
(5) Comply with the public private-partnership agreement
and any service contract.
(f) Construction.--Nothing in this section shall be
construed to prohibit an operator from providing additional
services for the eligible project to private entities or
government agencies, other than the government agency that is
party to the public-private partnership agreement, if the
provision of additional service does not impair the operator's
ability to meet its commitments to the government agency under
the public-private partnership agreement.
§ 4712. Federal, State and local assistance.
The government agency may obtain assistance from the Federal
or State Government or one of its political subdivisions A LOCAL
AGENCY for an eligible project in accordance with the purposes
under section 4706 (relating to evaluation and selection of
public-private partnership agreement proposal) and may enter
into a contract in order to receive the assistance. The
government agency may pay a portion of the costs of an eligible
project directly or indirectly from the proceeds of a grant or
loan made by the Federal or State local or one of its political
subdivisions A FEDERAL, STATE OR LOCAL AGENCY .
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§ 4713. Material default and remedies.
(a) General rule.--If there is a material default by the
operator, the government agency may assume the duties of the
operator, in which case it shall succeed to any right, title and
interest in the eligible project, subject to any liens on
revenue previously granted by the operator to any person
providing financing.
(b) Condemnation.--
(1) A government agency that is a party to a public-
private partnership agreement, and which has the power of
condemnation under State law, may exercise the power of
condemnation to acquire the eligible project in the event of
a material default by the operator.
(2) A person who has provided financing for the eligible
project, and the operator to the extent of its capital
investment, may participate in the condemnation proceedings
with the standing of a property owner.
(c) Termination.--The government agency may terminate, for
cause shown, the public-private partnership agreement and
exercise any other rights and remedies that may be available at
law or in equity.
(d) Claims.--The government agency may make or cause to be
made any appropriate claims under maintenance, performance or
payment bonds or lines of credit required under section 4707(b)
(1) (relating to implementation of public-private partnership
agreement).
(e) Procedure after takeover.--
(1) If a government agency takes over an eligible
project under subsection (a), it may acquire, design,
construct, improve, renovate, operate, expand, equip or
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maintain the eligible project, impose user fees, impose and
collect lease payments for the use of the eligible project
and comply with service contracts as if the government agency
were the operator.
(2) Revenue subject to a lien shall be collected for the
benefit of and paid to secured parties, as their interests
may appear, to the extent necessary to satisfy the operator's
obligations to secured parties, including the maintenance of
reserves. Liens shall be correspondingly reduced and released
when they are satisfied.
(3) Before a payment to or for the benefit of secured
parties, the government agency may use revenue to pay current
operation and maintenance costs of the eligible project,
including compensation to the responsible government agency
for its services in operating and maintaining the eligible
project. The right to receive payment, if any, shall be just
compensation for the eligible project.
(4) The full faith and credit of the government agency
may not be pledged to secure any financing of the operator by
the election to take over the eligible project.
(5) Assumption of operation of the eligible project may
not obligate the government agency to pay an obligation of
the operator from sources other than revenue.
§ 4714. Utility crossing.
Notwithstanding any other provision of law:
(1) The operator and each public utility, railroad and
cable television provider whose facilities are to be crossed
or affected by an eligible project shall cooperate fully in
planning and arranging the manner of the crossing or
relocation of the facilities.
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(2) All costs incurred by the public utility, railroad
or cable television provider in relocating, constructing or
reconstructing its facilities, including temporary
facilities, shall be paid by the operator.
(3) If the operator and a public utility, railroad or
cable television provider are unable to agree upon costs to
be paid by the operator under paragraph (2), the Pennsylvania
Public Utility Commission shall determine the amount of the
payment to be made by the operator.
§ 4715. Governmental immunity.
This chapter shall not be construed or deemed to constitute a
waiver of the governmental immunity of a government agency or an
affected local jurisdiction with respect to participation in or
approval of an eligible project or its operation, including
interconnection of the eligible project with another AN EXISTING
infrastructure or AN EXISTING project. An affected local
jurisdiction shall continue to have governmental immunity with
respect to an eligible project's design, construction and
operation.
§ 4716. Special approval.
A government agency may enter into a public-private
partnership agreement under this chapter only with the approval
of its governing body.
§ 4717. Exclusivity.
The provisions of this chapter shall constitute the exclusive
method of procurement for public-private partnership agreements
entered into under THE PUBLIC-PRIVATE PARTNERSHIP PILOT PROGRAM
ESTABLISHED UNDER this chapter, notwithstanding any other law.
In the event of a conflict between a provision of this chapter
and another statute or regulation, the provision of this chapter
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shall govern.
§ 4718. Use of intellectual property.
(a) General rule.--Unless otherwise agreed and except to the
extent not transferable by law, the government agency may use
all or a portion of a submitted proposal, including the
technologies, techniques, methods, processes and information
contained in the proposal.
(b) Notice of nontransferability.--Notice of
nontransferability by law shall be given to the government
agency in response to the request for proposals.
§ 4719. Applicability.
Authorized pilot projects shall not be subject to the
requirements of the following:
(1) The act of May 1, 1913 (P.L.155, No.104), referred
to as the Separations Act.
(2) Section 1805 of act of June 24, 1931 (P.L.1206,
No.331), known as The First Class Township Code.
(3) Section 3107 of the act of May 1, 1933 (P.L.103,
No.69), known as The Second Class Township Code.
(4) Section 751 of the act of March 10, 1949 (P.L.30,
No.14), known as the Public School Code of 1949.
(5) Section 5 of the act of May 27, 1953 (P.L.244,
No.34), entitled "An act relating to and regulating the
contracts of incorporated towns and providing penalties."
(6) Section 2517 of the act of July 28, 1953 (P.L.723,
No.230), known as the Second Class County Code.
(7) Section 2317 of the act of August 9, 1955 (P.L.323,
No.130), known as The County Code.
(8) 8 Pa.C.S. § 1405 (relating to separate bids for
plumbing, heating, ventilating and electrical work).
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(9) 11 Pa.C.S. Pt. V (relating to third class cities).
§ 4720. Pennsylvania Public Utility Commission.
Except as provided in section 4714 (relating to utility
crossing) nothing in this chapter shall be construed to affect
the duties and jurisdiction of the Pennsylvania Public Utility
Commission.
Section 2. Effective date.
This act shall take effect as follows:
(1) The following provisions shall take effect
immediately:
(i) The addition of 62 Pa.C.S. §§ 4701 and 4702.
(ii) This section.
(2) The remainder of this act shall take effect in 90
days.
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