PRINTER'S NO. 1301
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
1237
Session of
2021
INTRODUCED BY QUINN, HILL-EVANS, JAMES AND ZIMMERMAN,
APRIL 20, 2021
REFERRED TO COMMITTEE ON STATE GOVERNMENT, APRIL 20, 2021
AN ACT
Establishing the Public-Private Partnership Infrastructure
Board; providing for solicitation of public-private projects
and for public-private agreements; and establishing the
Public-Private Account.
TABLE OF CONTENTS
Section 1. Short title.
Section 2. Definitions.
Section 3. Public-Private Partnership Infrastructure Board.
Section 4. Duties of board.
Section 5. Operation of board.
Section 6. Solicitations for public-private partnership
projects.
Section 7. Public-private partnership projects.
Section 8. Requests.
Section 9. Selection of development entities.
Section 10. Public-private agreement.
Section 11. Records of requests.
Section 12. Use of intellectual property.
Section 13. Police powers and violations of law.
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Section 14. Environmental and other authorizations.
Section 15. Taxation of development entity.
Section 16. Power of eminent domain.
Section 17. Sovereign immunity.
Section 18. Specific performance.
Section 19. Applicability of other laws.
Section 20. Adverse interest.
Section 21. Federal, State, local and private assistance.
Section 22. Public-Private Account.
Section 23. Regulations.
Section 24. Effective date.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Short title.
This act shall be known and may be cited as the Public-
Private Partnership Infrastructure Act.
Section 2. Definitions.
The following words and phrases when used in this act shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Board." The Public-Private Partnership Infrastructure Board
established under section 3.
"Department." The Department of Community and Economic
Development of the Commonwealth.
"Development entity." An entity that is a party to a public-
private agreement and is any of the following:
(1) A private entity.
(2) A public entity, other than the public entity
providing or improving its own facilities or infrastructure
under the applicable public-private agreement.
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"Offeror." A person that submits a proposal, unsolicited
proposal or a response in answer to a request for proposals or
request for infrastructure projects.
"Political subdivision." A county, city, borough,
incorporated town, township, school district, vocational school,
county institution district, and an authority, entity or body
organized by any of them in this Commonwealth.
"Predevelopment costs." Costs for planning or assessing the
viability of a public-private project, including costs
associated with:
(1) Developing and obtaining the approval from the board
for a public-private project.
(2) Project planning, feasibility studies, economic
assessments, cost-benefit analyses, public benefit studies
and value-for-money analyses.
(3) Financial and legal planning, including the
identification of funding and financing options.
(4) Assessment of the impacts of potential projects on
the surrounding area, including the effect on communities,
the environment, the workforce, wages and benefits, and
assessment of infrastructure vulnerability and resilience.
(5) Public outreach and community engagement.
(6) Flexible staff, external advisors, convening
potential investment partners and legal costs.
"Preferred proposer." A responsible offeror selected by a
public entity to enter into a public-private agreement, interim
agreement or predevelopment agreement.
"Private entity." An individual, corporation, general
partnership, limited liability company, limited partnership,
joint venture, business trust, public benefit corporation,
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nonprofit entity or other business entity, group or organization
that is not the Federal Government, the Commonwealth or a public
entity.
"Proprietary public entity." A public entity that owns a
public-private project and is a party to a public-private
agreement.
"Public entity." A Commonwealth agency, a State-related
institution as defined in 62 Pa.C.S. § 103 (relating to
definitions), a political subdivision or an authority created by
statute and that owns public infrastructure. The term does not
include the General Assembly and its members, officers or
agencies.
"Public infrastructure." A building, facility or other
public infrastructure, including, but not limited to, a school,
college, library, court, hospital, health care facility,
laboratory, research facility, public safety facility, jail,
correction facility, office, dam, levee, water system, waste
treatment facility, energy generating facility or
telecommunication facility that a public entity chooses to
procure under this act, and excluding any transportation project
as defined in 74 Pa.C.S. § 9102 (relating to definitions). The
term includes:
(1) functionally related equipment or supplies and a
subordinate facility; and
(2) land and any real property rights appurtenant to
land with respect to the building, facility or other public
infrastructure.
"Public-private agreement." An agreement between a public
entity and a development entity establishing the obligations and
rights of both parties with respect to a public-private project.
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"Public-private project." An undertaking by a development
entity under a public-private agreement to provide or improve
public infrastructure or a public infrastructure-related service
that is totally or partially located within this Commonwealth.
The term includes the following:
(1) Design.
(2) Construction.
(3) Financing.
(4) Operations.
(5) Maintenance.
(6) An infrastructure project provided to the public
entity by the development entity and in return for the right
to receive all or a portion of the revenue generated from the
use of the public infrastructure or other payment.
(7) User fee collection or enforcement.
(8) Brownfield acquisition, including a land swap or
value-capture project.
(9) Development and any other activity with respect to
an existing or new public infrastructure facility that
enhances and improves the public infrastructure facility.
(10) Private development and other activity procured in
connection with a public infrastructure project on public or
private property or procured by a public entity to further
the public entity's economic development goals.
"Request for infrastructure projects." A request by a public
entity to the board for approval of a public-private project.
"Responsible offeror." An offeror that has submitted a
responsive proposal and possesses the capability to fully
perform the public-private agreement requirements in good faith.
"Responsive proposal." A proposal or unsolicited proposal
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that conforms in all material aspects to the requirements and
criteria in a request for unsolicited proposals or a request for
proposals issued by the department or a public entity.
"State Adverse Interest Act." The act of July 19, 1957
(P.L.1017, No.451), known as the State Adverse Interest Act.
"State-supported project." A public infrastructure project
that is funded or financed by the Commonwealth and exceeds
$250,000,000 in total construction and life-cycle costs.
Section 3. Public-Private Partnership Infrastructure Board.
(a) Establishment.--The Public-Private Partnership
Infrastructure Board is established.
(b) Composition.--The board shall be composed of the
following members:
(1) The Secretary of Community and Economic Development,
who must be the chairperson of the board, or a designee who
must be an employee of the department.
(2) The Secretary of the Budget or a designee who must
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.
(c) Legislative appointments.--Appointments of members by
the General Assembly shall be made as follows:
(1) One individual shall be appointed by the President
pro tempore of the Senate.
(2) One individual shall be appointed by the Minority
Leader of the Senate.
(3) One individual may be appointed by the Speaker of
the House of Representatives.
(4) One individual may be appointed by the Minority
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Leader of the House of Representatives.
(d) Requirements.--A member appointed by either the General
Assembly or the Governor:
(1) May not hold any other position as an elected
official or employee of the Commonwealth.
(2) Must be a resident of this Commonwealth and have
expertise or substantial experience in any of the following
areas:
(i) Public infrastructure.
(ii) Buildings or facilities development or
management.
(iii) Infrastructure finance.
(iv) Infrastructure, real estate or environmental
law.
(v) Land use and public planning.
(3) Shall serve at the pleasure of the appointing
authority.
(e) Quorum.--A majority of the board shall constitute a
quorum. The adoption of a resolution or other action of the
board shall require a quorum.
(f) Compensation.--The members of the board may not receive
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.
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(h) Financial interests.--
(1) No member of the board, during the member's term of
office, may directly or indirectly own, have any significant
financial interest in, be associated with or receive a fee,
commission, compensation or anything of value from a public
entity or private entity seeking to engage in a public-
private agreement.
(2) The provisions of this subsection shall not apply to
the salary of a Commonwealth employee.
Section 4. Duties of board.
(a) Duties.--The board shall:
(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 public-private
project or a private entity may submit an unsolicited
proposal for a public-private project to the department or a
public entity.
(3) Consult with persons affected by proposed public-
private projects.
(4) Evaluate and, where the board finds that the request
or plan for a public-private project is in the best interest
of this Commonwealth and a public entity, approve the request
or plan for the public-private project.
(5) The board shall approve a proposed public-private
project by adopting a resolution. The board may not revoke an
approval granted for a public-private project unless the
scope of the approved public-private project is materially
altered or modified prior to the public entity entering into
the public-private agreement.
(6) Submit an annual report to the General Assembly
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detailing all infrastructure projects evaluated and
resolutions adopted.
(7) Provide support, funding and resources to public
entities to assist in analyzing and procuring public
infrastructure and funding predevelopment costs.
(8) Coordinate with, and obtain best practices from, the
Department of Transportation and the Public-Private
Transportation Partnership Board established under 74 Pa.C.S.
Ch. 91 (relating to public-private transportation
partnerships) for developing the guidelines for procuring and
approving public-private projects.
(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 subject to appeal to the department or a court of
law.
(c) Review by General Assembly.--
(1) The General Assembly may, within 20 calendar days of
the board's approval of a public-private project owned by the
Commonwealth, pass a concurrent resolution rescinding the
approval of the public-private project.
(2) If the General Assembly adopts the concurrent
resolution within the time period under paragraph (1) by a
majority vote in both the Senate and the House of
Representatives, the public-private project shall be deemed
disapproved.
(3) If the General Assembly fails to adopt the
concurrent resolution by majority vote in both the Senate and
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the House of Representatives within the time period under
paragraph (1), the public-private project shall be deemed
approved.
(4) The General Assembly may not revoke adoption of a
concurrent resolution of a public-private project under this
subsection unless the scope of the approved public-private
project is materially altered or modified prior to the public
entity entering into the public-private agreement.
Section 5. Operation of board.
(a) Technical assistance.--The department shall supply all
necessary assistance to the board in carrying out the board's
duties and responsibilities, including retention of legal,
financial and technical consultants, and shall provide technical
and procurement assistance or guidance to a public entity which
receives approval from the department or the board to procure a
public-private project.
(b) Analysis.--
(1) The department may receive all unsolicited proposals
and requests for public-private projects on behalf of the
board or a public entity.
(2) If the department receives unsolicited proposals and
requests, the department shall, on behalf of the board,
develop a detailed analysis of the proposed public-private
project and make a recommendation for whether the proposed
public-private project should be approved by the board within
120 days of receipt.
(3) For a non-State owned unsolicited proposal, the
department shall first obtain approval and input from the
relevant proprietary public entity before finalizing the
department's analysis and submitting a recommendation to the
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board.
(c) Mandatory submittal of State-supported projects.--
(1) Before the department or a public entity procures a
State-supported project eligible for consideration under this
act, a public entity must submit the State-supported project
to the department for review and analysis to determine
whether the State-supported project should be procured under
this act.
(2) If the department determines that the State-
supported project should be procured under this act, the
public entity shall procure the project in accordance with
the department's recommendation unless the board disapproves
the State-supported project or the public entity has a
compelling reason why procurement under this act would not be
suitable.
(3) The department shall provide a public entity
reimbursement for predevelopment costs incurred in connection
with a procurement under this act if predevelopment costs
were preapproved by the department and the public entity
seeks reimbursement from the department.
Section 6. Solicitations for public-private partnership
projects.
(a) Procurement.--A public entity may procure public-private
projects through multistep procurements, including a one-step,
two-step or three-step procurement, which may include any of the
following outreach and procurement mechanisms:
(1) A request for information.
(2) Confidential or public informal market testing.
(3) Industry days.
(4) A request for qualifications.
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(5) A qualification-based short list.
(6) A request for proposals.
(7) Confidential, one-on-one meetings.
(8) Interim agreements.
(9) Predevelopment agreements.
(10) Best and final offer.
(11) Requests for unsolicited proposals.
(b) Unsolicited proposals.--A public entity or the
department may accept and issue requests for unsolicited
proposals. Offerors may also directly submit unsolicited
proposals to a public entity or the department in the form and
manner required by the request for unsolicited proposals or as
provided in the guidelines approved by the board.
(c) Request for board approval.--
(1) A public entity may not issue a request for
qualifications or request for proposals for a public-private
project prior to receiving board approval.
(2) A public entity may request board approval of a
public-private project by submitting a request for an
infrastructure project to the department.
(3) The public entity shall give public notice of a
request for infrastructure projects consistent with the
guidelines adopted by the board.
Section 7. Public-private partnership projects.
(a) Submission.--Except as provided in subsection (b), a
public entity that seeks to undertake a public-private project
that has not been previously approved by the board shall submit
a request for a public-private project to the board.
(b) Applicability.--This act shall not apply to a public-
private project that a public entity is authorized under law to
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undertake on the effective date of this act.
Section 8. Requests.
(a) Request details.--A request for a public-private project
may be solicited or unsolicited and may provide for any of the
following:
(1) Design.
(2) Construction.
(3) Development.
(4) Acquisition.
(5) Maintenance.
(6) Operation of a public-private project.
(b) Operational methods.--Operation of a public-private
project may be conducted using any of the following delivery
methods and forms of agreement:
(1) Predevelopment agreements or interim 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 property exchange or land swap.
(10) A development of a privately owned development on
privately owned or publicly owned property.
(11) A concession providing for the development entity
to design, build, operate, maintain, manage or lease a
public-private project.
(12) Any other innovative or nontraditional project
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delivery method or agreement or combination of methods or
agreements that the public entity determines will address the
public infrastructure needs of the public entity and serve
the public interest.
Section 9. Selection of development entities.
(a) Conditions for use.--If a public-private project is
approved under section 4, the public entity may enter into a
contract for the public-private project after complying with the
provisions of the section.
(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 that is accessible to the
general public.
(2) Advertisement as provided 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
that have been prequalified by the public entity.
(d) Copies of request for proposals.--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
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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 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.--
(1) A public entity shall evaluate each proposal to
determine which proposal has the best value for and is in the
best interest of the public entity. In making this
determination, a public entity may utilize a price-technical
trade-off analysis where a technical solution may outweigh
price considerations. If the public entity utilizes a price-
technical, trade-off analysis, the public entity shall not be
required to select the lowest price or the highest-scoring
technical solution. Evaluation criteria shall be set prior to
receipt of any proposals from responsible offerors.
(2) In making this determination, a public entity may
consider any of the following:
(i) Cost.
(ii) Price.
(iii) Financial commitment.
(iv) Innovative financing.
(v) Bonding.
(vi) Technical, scientific, technological or
socioeconomic merit.
(vii) Financial strength and viability.
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(viii) Design, operation and feasibility of the
transportation project.
(ix) Public reputation, qualifications, industry
experience and financial capacity of the private entity.
(x) The ability of the project to improve economic
growth and improve public safety, reduce congestion,
increase capacity or rehabilitate, reconstruct or expand
an existing facility.
(xi) The compatibility of the proposal with existing
regional and local and land use plans.
(xii) The commitment of local communities to approve
land use plans in preparation for the project.
(xiii) 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.
(h) Participation in evaluation.--
(1) If the public entity is a Commonwealth agency, the
department shall invite its comptroller to participate in the
evaluation as a nonvoting member of an evaluation committee.
(2) No individual who has been employed, excluding a
third-party subcontractor, contractor or advisor such as a
legal, financial or technical advisor, by an offeror within
the last two years may participate in the evaluation of
proposals.
(i) Discussion with responsible offerors and revision of
proposals.--
(1) If provided in the request for proposals, the public
entity may conduct confidential or public meetings,
discussions and negotiations with a responsible offeror at
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any time during the procurement process. Responsible offers
shall be accorded fair and equal treatment with respect to
any opportunity for discussion and revision of proposals.
(2) Information derived from proposals submitted by
competing offerors may not be disclosed unless otherwise
permitted in the request for proposals or by law.
(j) Selection for negotiation.--A responsible offeror whose
proposal is determined in writing to be the best value for and
in the best interest of the public entity, taking into
consideration all evaluation factors in subsection (f), shall be
selected for contract negotiation.
(k) Cancellation.--
(1) A request for proposals or other initiated
procurement may be canceled at any time prior to the time a
public-private agreement is executed by all parties when in
the best interest of the public entity.
(2) (i) The public entity may provide under the
procurement documentation for the payment of a stipend to
unsuccessful responsible offerors that have submitted
responsive proposals.
(ii) If the public entity issues and cancels a
request for proposals at any time prior to the proposal
submission deadline or after the receipt of responsive
proposals, the public entity shall, if the termination
occurs prior to or after the proposal submission
deadline, pay the agreed-upon stipend amount to
responsible offerors that have satisfied all related
conditions and requirements for receipt of the stipend.
(l) Award.--
(1) After reaching an agreement with a preferred
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proposer or entering into an interim agreement or
predevelopment agreement with the preferred proposer and
subsequently reaching an agreement with the preferred
proposer, a public entity shall enter into a public-private
agreement with the preferred proposer. The public-private
agreement shall be consistent with the requirements of this
act and the guidelines approved by the board.
(2) If agreement cannot be reached with the initial
preferred proposer, negotiations shall be formally terminated
with the initial preferred proposer.
(3) If responsive proposals were submitted by one or
more other responsible offerors, negotiations may be
conducted with the next-highest-ranked responsible offeror or
responsible offerors in the order of their respective
qualification ranking.
(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 a Commonwealth agency, 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
process for the filing and resolution of claims, including
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rights, contents, timing, evaluation, determination and remedies
established in 62 Pa.C.S. Ch. 17, shall apply insofar as
practicable.
Section 10. Public-private agreement.
(a) Required provisions.--A public-private agreement shall
include the following provisions:
(1) The term of the public-private agreement may not
exceed 99 years.
(2) The proprietary public entity or its authorized
representatives shall have the right to inspect all assets
and properties of the public-private project and all books
and records of the development entity relating to the public-
private project to review the development entity's
performance under the public-private agreement.
(3) (i) Whether the proprietary public entity or public
entity designated by the proprietary public entity will
retain or acquire ownership of a public infrastructure
facility acquired or constructed.
(ii) This paragraph shall not apply to property
conveyed to a private entity for a land swap or value
capture project.
(4) Upon termination of the public-private agreement,
the facility that was the subject of the public-private
agreement shall be in a state of proper maintenance and
repair and returned to the applicable public entity in
satisfactory condition at no further cost to the applicable
public entity.
(5) The public entity shall have the right to assume
control of and remedy safety-related issues during the term
of the public-private agreement in paragraph (1).
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(6) (i) The development entity shall offer employment
to employees of the public entity in good standing at the
time of execution of the public-private agreement who
would lose employment due directly and solely to the
execution of the public-private agreement.
(ii) The duty specified in subparagraph (i) includes
the offering of salary, retirement, health and welfare
benefits that are substantially identical to the benefits
received by the employees immediately prior to execution
of the public-private agreement for the term of the
collective bargaining agreement of those employees in
effect.
(iii) An employee of the proprietary public entity
who does not accept employment with the development
entity shall be reassigned to an equivalent position,
without loss of seniority, within a worksite in as close
proximity to the public-private project as feasible.
(iv) Nothing in this paragraph shall be construed to
impair provisions related to furloughs and layoffs of the
collective bargaining agreement of those employees in
effect.
(7) Other provisions required by this act or the
guidelines approved by the board.
(b) Optional provisions.--A public-private agreement may
include the following provisions if they are consistent with
best practices in the public-private partnership industry:
(1) A description of any planning, development, design,
leasing, acquisition or interest in, financing, installation,
construction, reconstruction, replacement, expansion,
operation, maintenance, improvement, equipping, modification,
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expansion, enlargement, management, running, control and
operation of the public-private project.
(2) Notwithstanding any other law to the contrary, the
public entity may convey property to a development entity as
part of the public-private project. This provision shall
include a description of the type of property interest or
other relationship the development entity will have in the
public-private project or with respect to the public-private
project, including acquisition of rights-of-way and other
property interests that may be required and including whether
the public entity is conveying any property ownership to the
development entity.
(3) The development entity may be required 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.
(4) Standards for construction, maintenance and
operation of the public-private project if performed by the
development entity.
(5) Standards for capital improvement or modification of
the public-private project if made by the development entity.
(6) 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.
(7) Standards relating to damages to be assessed for
nonperformance, specifying remedies available to the parties
and dispute resolution procedures.
(8) Standards relating to performance criteria and
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incentives.
(9) Allowing the private entity to perform any right-of-
way acquisition on behalf of the public entity.
(10) Any other provisions agreed to between the parties
to the public-private agreement or are permitted by this act
or the guidelines approved by the board.
(c) Construction.--Nothing in this act may be construed to
prohibit:
(1) The department from entering into a public-private
agreement with another Commonwealth agency in accordance with
this act.
(2) A public entity from entering into a public-private
agreement with one or more public entities in accordance with
this act.
(d) Environmental costs.--
(1) A public entity may provide in a public-private
agreement that it will pay or reimburse, on terms the public
entity 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
project as of the date the development entity assumes
responsibility for the public-private project.
(2) If the public-private agreement provides for
environmental remediation, the public-private agreement shall
require that the public entity be given:
(i) Prompt notice of a claim against the public
entity or a third party pertaining to the contaminants.
(ii) The right to elect to undertake the necessary
remediation.
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(iii) The right to participate in the defense of or
response to a claim.
(iv) The right of prior approval before the
development entity may settle a claim.
(e) Actual costs.--No payment by a public entity under this
section may be for a cost 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 project as of the date the development entity
assumes responsibility for the public-private project.
(f) User fees.--
(1) The public-private agreement may provide for
imposition of fees for use of the public-private project and
the basis by which the fee will be imposed and collected.
(2) If a user fee is proposed as part of the public-
private project, a public entity shall include provisions in
the agreement that authorize the collection of user fees,
tolls, fares, revenue or similar charges, including
provisions that:
(i) Specify technology to be used in the public-
private project and allow for exchanges or upgrades to
the technology.
(ii) Establish circumstances, as applicable, under
which the public entity may receive a share of revenues
from the charges.
(iii) Govern the enforcement of user fee
delinquencies, including provisions for use of available
technology.
(iv) Establish payment collection standards,
including provisions for enforcement of nonpayment and
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penalties.
(v) In the event a user of a public-private project
fails to pay the prescribed user fee at a location on a
public-private project, the public entity may permit a
public authority to enforce payment of the user fee to
the private entity.
(g) Amounts received under a public-private agreement.--The
net proceeds received by the public entity under a public-
private agreement shall be used to provide funding for public
infrastructure needs in this Commonwealth or the applicable
public entity. The use of the proceeds or other revenues from
the public-private project shall comply with Federal or State
law restricting or limiting the use of revenue from the public-
private project based on its public funding.
Section 11. Records of requests.
(a) Disclosure of information.--
(1) (i) Except as otherwise provided in subparagraph
(ii), upon the selection of a development entity to be a
party to a public-private 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 agreement shall be
made public.
(ii) Financial information of a development entity
provided 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 agreement may not be
subject to public inspection.
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(2) A proprietary public and a private development
entity may 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 agreement for default or rejects, suspends or debars
a private entity on the grounds that the private entity is
not responsible, the private entity or development entity
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.
(b) Confidential information.--The following information may
not be disclosed to the public:
(1) Proprietary information, trade secrets, patents or
exclusive licenses, architectural and engineering plans and
information relating to competitive marketing materials and
strategies.
(2) Security information, including risk prevention
plans, detection and countermeasures, emergency management
plans, security and surveillance plans, equipment and usage
protocols and countermeasures.
(3) Records considered nonpublic matters or information
by the Securities and Exchange Commission under 17 CFR 200.80
(relating to Securities and Exchange Commission records and
information).
(4) Financial information deemed confidential by the
proprietary public entity upon a showing of good cause by the
offeror or development entity.
(5) Records prepared or utilized to evaluate a proposal.
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Section 12. Use of intellectual property.
The department or the public entity may use all or a portion
of information, materials and work product submitted to the
public entity, including the technologies, techniques, methods,
processes and information contained in a proposal unless not
transferable by law or otherwise agreed to. Notice of
nontransferability by law shall be given to the department and
the public entity in response to the request for proposals.
Section 13. Police powers and violations of law.
(a) Enforcement of traffic laws.--To the extent the public-
private project is a highway, bridge, tunnel overpass or similar
transportation facility for motor vehicles, the provisions of 75
Pa.C.S. (relating to vehicles) and other laws of this
Commonwealth or a local entity of the Commonwealth, if
applicable, shall be the same as those applying to conduct on
similar transportation facilities in this Commonwealth or the
local entity.
(b) Penalties.--Penalties for offenses shall be prescribed
by law for conduct occurring on similar facilities in this
Commonwealth or the local jurisdiction.
(c) Arrest powers.--
(1) Enforcement officers authorized by law to make
arrests for violations of law in this Commonwealth shall have
the same powers and duties within the limits of a public-
private project as they have within their respective
jurisdiction.
(2) The grant of authority under this section shall not
extend to the private offices, buildings, garages and
improvements of a development entity to a greater degree than
the police power extends to other private offices, buildings,
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garages and improvements.
Section 14. Environmental and other authorizations.
(a) The Administrative Code of 1929.--Notwithstanding any
other provision of law, soliciting or approving a request for
proposals or executing a public-private agreement under this act
shall not 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
agreement may require that, prior to commencing construction in
connection with the development, operation or financing of a
public-private project, the development entity shall:
(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; or
(2) complete environmental remediation of the site on
which the public-private project is to be located, including
actions required under an agreement entered into with the
Department of Environmental Protection for remediation of the
site under the Land Recycling and Environmental Remediation
Standards Act.
Section 15. Taxation of development entity.
(a) General rule.--To the extent that revenues or user fees
received by a development entity under a public-private
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
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and to future increases in the rate of the tax.
(b) New taxation barred.--After the effective date of this
section, no new tax may be imposed by a political subdivision or
the Commonwealth on the revenues or user fees received by a
development entity under a public-private agreement.
(c) Realty transfer tax.--No public-private agreement,
lease, concession, franchise or other contract involving real
property of a public-private 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 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 a political
subdivision.
Section 16. Power of eminent domain.
The exercise of the power of eminent domain by a condemnor to
acquire property for public-private project purposes under a
public-private agreement shall be considered a taking for a
public purpose and not for a private purpose or for private
enterprise.
Section 17. Sovereign immunity.
Under section 11 of Article I of the Constitution of
Pennsylvania, it is declared to be the intent of the General
Assembly that the Commonwealth, its officials and employees, and
a municipal authority, its officials and employees, acting
within the scope of their duties, shall continue to enjoy
sovereign immunity and official immunity and remain immune from
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suit except as provided in section 18. 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 10(d), 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.
Section 18. Specific performance.
A proprietary public entity may agree in a public-private
agreement 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 agreement to the
extent specified in the public-private agreement.
Section 19. Applicability of other laws.
(a) General rule.--Except as provided under subsection (b),
a provision of law relating to the development, construction,
maintenance, procurement, operation or financing of a public-
private project in effect on the date a public-private agreement
is fully executed between a public entity and a development
entity, including the act of August 15, 1961 (P.L.987, No.442),
known as the Pennsylvania Prevailing Wage Act, shall apply to a
public-private agreement.
(b) Limitation.--If the public entity or proprietary public
entity is a Commonwealth agency, 62 Pa.C.S. (relating to
procurement) shall apply only to the extent provided under
subsection (c).
(c) Other acts.--If the public entity or proprietary public
entity is a Commonwealth agency:
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(1) The act of May 1, 1913 (P.L.155, No.104), referred
to as the Separations Act, shall not apply.
(2) Any local law enacted by a public entity that
directly conflicts with this act shall control over this act.
Section 20. Adverse interest.
(a) Private entity adverse interests.--
(1) Except as provided under paragraph (2), a private
entity that submits a response to a request for proposals
under this act and that is a State advisor or State
consultant for the department or a public entity procuring a
public-private project under this act shall not be deemed to
be in violation of the State Adverse Interest Act while
engaging in the following activities:
(i) Preparing or submitting a response to a request
for proposals or projects.
(ii) Participating in an activity with the
department or a public entity related to a request for
proposals or infrastructure projects.
(iii) Negotiating and entering into a contract,
lease or public-private agreement that results from a
request for proposals or an infrastructure project.
(iv) Engaging in other action taken in furtherance
of the purposes of this act.
(2) A private entity and its consultants may not consult
or provide advice, excluding during any market testing or
request for information process, to the department or a
public entity on a public-private project procurement that
the private entity is an offeror.
(3) A private entity and its consultants may advise a
public entity or the department on an unrelated public-
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private project where the private entity is not an offeror
or, with respect to the private entity's consultants, where
the consultants are not advising the private entity on the
public-private project.
(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 advisor." 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 State
Adverse Interest Act.
Section 21. Federal, State, local and private assistance.
(a) Federal assistance.--
(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 the
purposes of this act, whether the funds are made available by
grant, loan, loan guarantee or otherwise.
(2) The department or a proprietary public entity may
assent to Federal requirements, conditions or terms of
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 act.
(b) Acceptance of grants and donations.--The department or a
proprietary public entity may accept from any source a grant,
donation, gift or other form of conveyance of land, money or
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other real, personal or mixed property or other item of value
for carrying out the purposes of this act.
(c) Contributions.--Subject to acceptance and agreement
between the development entity and a proprietary public entity,
a public-private project may be financed, in whole or in part,
by contribution of 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 project under this act.
(e) Itemization.--Pursuant to section 7(a)(4) of Article
VIII of the Constitution of Pennsylvania, a public-private
project funded, in whole or in part, through the issuance of
debt where the credit of the Commonwealth is pledged shall be
itemized in a capital budget itemization act.
Section 22. Public-Private Account.
(a) Establishment.--
(1) The Public-Private Account is established as a
restricted account in the General Fund.
(2) Money in the Public-Private Account shall be used
only for the purposes enumerated under subsection (c).
(b) Deposits to account.--
(1) The department shall deposit in the Public-Private
Account the following:
(i) All money received by the department under the
terms of a public-private agreement in which the
department is the proprietary public entity.
(ii) Repayment of loans from the Public-Private
Account made under this act.
(iii) Subject to the provisions of a public-private
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agreement in which the department is the proprietary
public entity, monetary damages and other amounts for
failure by the development entity to comply with the
terms of the public-private agreement.
(iv) Subject to the provisions of a public-private
agreement in which the department is the proprietary
public entity, payments made from insurance proceeds or
reserve funds or performance or payment bonds in
connection with a public-private project.
(v) Earnings from the investment of the money in the
Public-Private Account.
(2) The Secretary of the Budget shall establish
restricted accounts within the Public-Private Account as the
secretary deems necessary for the proper administration of
the Public-Private Account.
(3) Money related to a public-private agreement in which
the department is not the proprietary public entity may not
be held in the Public-Private Account but shall be held by
the proprietary public entity or its agent.
(c) Continuing appropriation.--The money in the Public-
Private Account is appropriated on a continuing basis to the
department for the following purposes:
(1) Paying the amounts the department is required to
repay the Federal funding agencies.
(2) Paying the amounts designated by the department for
repayment or defeasance of outstanding bonds.
(3) Paying costs of maintenance, operating and financing
transportation facilities in this Commonwealth which are
available for public use, including the costs of insurance or
reserves against risks of contingencies.
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(4) Paying expenses incurred by the department under or
in connection with a public-private agreement, including
professional fees and expenses.
(5) Paying costs of the department relating to
performing and administering duties under this act.
(6) Paying expenses approved by the board for costs
incurred to perform its duties, including professional fees
and expenses.
(7) Paying costs of any purpose authorized under this
act.
(d) Use of net proceeds.--The net proceeds received under a
public-private agreement shall be available exclusively to
provide funding for infrastructure needs in this Commonwealth.
The use of the proceeds or other revenues from a public-private
project shall be in accord with Federal or State law restricting
or limiting the use of revenue from the public-private project
based on its public funding.
Section 23. Regulations.
In order to facilitate implementation of this act, the
department may promulgate regulations or publish guidelines that
include the following:
(1) The process for department review of a request by a
public entity to procure a public-private project.
(2) The process for department review of its proposed
projects.
(3) The process for receipt of unsolicited proposals.
(4) The process for evaluating infrastructure projects
to determine, based upon a value-for-money analysis, the
procurement structure and methodology that will deliver the
best value for money for the project.
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(5) The process for receipt, review of and response to
competing responses to requests for proposals or
infrastructure projects.
(6) The type and amount of information necessary for
adequate review of and response to each stage of review of a
proposal or public-private project.
(7) Any other provision the department deems
appropriate.
Section 24. Effective date.
This act shall take effect in 60 days.
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