Bill Text: PA HB1510 | 2009-2010 | Regular Session | Introduced

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Bill Title: Establishing public-private transportation partnerships; conferring powers and duties on the Pennsylvania Public Utility Commission, the State Transportation Commission and the Department of Transportation; and establishing the Public-Private Transportation Partnership Fund.

Spectrum: Slight Partisan Bill (Republican 30-11)

Status: (Introduced - Dead) 2009-05-13 - Referred to TRANSPORTATION [HB1510 Detail]

Download: Pennsylvania-2009-HB1510-Introduced.html

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PRINTER'S NO. 1870
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No. 1510 Session of2009
INTRODUCED BY GEIST, MARKOSEK, J. EVANS, HESS, HICKERNELL, M. KELLER, MARSICO, MILLER, PICKETT, PYLE, WATSON, BEAR, BEYER, BOBACK, BOYD, BRENNAN, CARROLL, CAUSER, CLYMER, CREIGHTON, CUTLER, DePASQUALE, EVERETT, FRANKEL, GALLOWAY, GERGELY, GIBBONS, GINGRICH, GOODMAN, GRELL, GROVE, MUSTIO, RAPP, REICHLEY, ROAE, SIPTROTH, SOLOBAY, STERN, STEVENSON, J. TAYLOR AND TURZAI, MAY 13, 2009
REFERRED TO COMMITTEE ON TRANSPORTATION, MAY 13, 2009
AN ACT
Amending Title 74 (Transportation) of the Pennsylvania
Consolidated Statutes, establishing public-private
transportation partnerships; conferring powers and duties on
the Pennsylvania Public Utility Commission, the State
Transportation Commission and the Department of
Transportation; and establishing the Public-Private
Transportation Partnership Fund.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Title 74 of the Pennsylvania Consolidated
Statutes is amended by adding a part to read:
PART V
PUBLIC-PRIVATE TRANSPORTATION PARTNERSHIPS
Chapter
91. Preliminary Provisions
92. Public-Private Transportation Partnerships
CHAPTER 91
PRELIMINARY PROVISIONS
Sec.
9101. Scope of part.
9102. Declaration of policy.
9103. Construction of part.
§ 9101. Scope of part.
This part relates to public-private transportation
partnerships.
§ 9102. Declaration of policy.
(a) Legislative findings.--The General Assembly finds and
declares as follows:
(1) There exists a public need for the timely
development and operation of transportation facilities within
this Commonwealth which address the needs of Commonwealth,
regional or local transportation by improving safety,
reducing congestion, abating environmental pollution,
advancing energy efficiency or conservation, improving
homeland security and increasing capacity or enhancing
economic efficiency.
(2) This public need may not be wholly satisfied through
the use of currently existing methods of financing and
procurement in which transportation facilities are developed
or operated.
(3) Authorizing private entities to develop and operate
transportation facilities may result in the availability of
these transportation facilities to the public in a more
timely, more efficient or less costly fashion, thereby
serving the public safety and welfare.
(b) Intent.--It is the intent of this part:
(1) to encourage investment in this Commonwealth by
private entities to assist in the development and operation
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of transportation facilities; and
(2) to accomplish the goal under paragraph (1), to
provide public entities and private entities with the
greatest possible flexibility in contracting with each other
for the provision of the public services which are the
subject of this title.
§ 9103. Construction of part.
(a) Liberal construction.--This part shall be liberally
construed in conformity with and to accomplish section 9102
(relating to declaration of policy).
(b) Sole authority.--This part provides public-private
transportation partnership opportunities to public entities and
private entities and shall be construed as the sole statutory
authority enabling a public entity to participate with a private
entity in a transportation-related contract, project or activity
governed by this part.
CHAPTER 92
PUBLIC-PRIVATE TRANSPORTATION PARTNERSHIPS
Sec.
9201. Definitions.
9202. Prerequisite for operation.
9203. Approval.
9204. Service contracts.
9205. Transfer and dedication of public property.
9206. Powers, duties and liability of private entity.
9207. Interim agreement.
9208. Comprehensive agreement.
9209. Multiple affected public entities.
9210. Federal, Commonwealth and local assistance.
9211. Financing.
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9212. Material default; remedies.
9213. Eminent domain.
9214. Public utility crossings.
9215. Police powers; violations of law.
9216. Transfer of assets.
9217. Procurement.
9218. Public-Private Transportation Partnership Fund.
§ 9201. Definitions.
Subject to additional definitions contained in subsequent
provisions of this part which are applicable to specific
provisions of this part, the following words and phrases when
used in this part shall have the meanings given to them in this
section unless the context clearly indicates otherwise:
"Affected jurisdiction." A county, city, borough,
incorporated town, township or local, regional or metropolitan
transportation organization:
(1) in which all or a portion of a qualifying
transportation facility is located; or
(2) which is directly affected by the qualifying
transportation facility.
"Affected public entity." A public entity which owns a
proposed qualifying transportation facility or a qualifying
transportation facility, including, but not limited to:
(1) A metropolitan transportation authority under 74
Pa.C.S. Ch. 17 (relating to metropolitan transportation
authorities).
(2) The Delaware River Port Authority.
(3) The Delaware River Joint Toll Bridge Commission.
(4) A second class county port authority.
(5) The Pennsylvania Turnpike Commission.
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The term does not include a Commonwealth agency unless
specifically enumerated in this definition.
"Commission." The Pennsylvania Public Utility Commission.
"Comprehensive agreement." The comprehensive agreement
entered into between a private entity and the responsible public
entity or the affected public entity under section 9208
(relating to comprehensive agreement).
"Department." The Department of Transportation of the
Commonwealth.
"Develop." To plan, design, finance, lease, install,
construct or expand.
"Development." Planning, designing, financing, leasing,
installing, constructing or expanding.
"Fund." The Public-Private Transportation Partnership Fund
established in section 9218 (relating to Public-Private
Transportation Partnership Fund).
"Highway." A way or place open to the use of the public for
purposes of vehicle traffic.
"Interim agreement." An agreement, including a memorandum of
understanding or binding preliminary agreement, between a
private entity and the responsible public entity or the affected
public entity under section 9207 (relating to interim agreement)
which provides for completion of studies and any other
activities to advance the development or operation of a
qualifying transportation facility.
"Law enforcement officer." An individual authorized by law
to make arrests for violations of law.
"Material default." A default by a private entity in the
performance of its duties under section 9206 (relating to
powers, duties and liability of private entity) which:
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(1) jeopardizes adequate service to the public from a
qualifying transportation facility; and
(2) remains unremedied after the responsible public
entity or the affected public entity has provided notice to
the private entity and a reasonable cure period has elapsed.
"Multimodal transportation facility." A transportation
facility consisting of multiple modes of transportation.
"Operate." To finance, maintain, improve, equip, modify,
repair, manage, run or control functioning.
"Operation." The act of financing, maintaining, improving,
equipping, modifying, repairing, managing, running or
controlling functioning.
"Private entity." Any individual, corporation, partnership,
limited liability company, limited partnership, joint venture,
business trust, public utility, nonprofit corporation or other
business entity authorized to conduct business in this
Commonwealth.
"Procurement Code." The provisions of 62 Pa.C.S. Pt. I
(relating to Commonwealth Procurement Code).
"Public entity." The Commonwealth; any department, board,
commission, authority or agency of the Commonwealth, whether or
not subject to the policy supervision and control of the
Governor; a political subdivision; and a local, regional or
metropolitan transportation authority. The term does not include
any court or other officer or agency of the unified judicial
system or the General Assembly and its officers and agencies.
"Public utility." As defined in 66 Pa.C.S. § 102 (relating
to definitions).
"Qualifying transportation facility." A transportation
facility developed or operated by a private entity under this
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part. The term includes a multimodal transportation facility.
"Responsible public entity." The Department of
Transportation of the Commonwealth.
"Revenue." Money generated from or received in support of
the development or operation of a qualifying transportation
facility. The term includes: income; earnings; user fees; lease
payments; allocations; Federal, Commonwealth and political
subdivision appropriations; proceeds of bonds or notes; equity
investments; service payments; Federal grants; and money from a
Federal agency or instrumentality.
"Service contract." A contract entered into between a public
entity and a private entity under section 9204 (relating to
service contracts).
"Service payments." Payments to a private entity pursuant to
a service contract.
"Transportation commission." The State Transportation
Commission created in section 468 of the act of April 9, 1929
(P.L.177, No.175), known as The Administrative Code of 1929.
"Transportation facility." Any highway, bridge, tunnel,
overpass, ferry, airport, mass transportation facility, vehicle
parking facility, port facility, railroad, guideway, street
railway or similar facility used for the transportation of
persons or goods. The term:
(1) Includes:
(i) A substantial enhancement, an improvement or an
increase in capacity made to a facility listed in this
definition.
(ii) Any building, structure, parking area,
appurtenance and other property needed to operate a
facility listed in this definition.
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(iii) A substantial enhancement, an improvement or
an increase in capacity to a facility excluded under
paragraph (2).
(2) Does not include a facility listed in this
definition:
(i) which is available for use by the public on the
effective date of this definition; and
(ii) for the use of which no toll, fee or charge is
imposed on the public.
"Transportation organization." Any mass transportation,
port, bridge, rail, regional planning or airport authority or
commission organized under the laws of this Commonwealth or
under an interstate compact or otherwise empowered to render,
contract for or assist in the rendering of transportation
service or transportation planning in a limited area in this
Commonwealth, even though it may also render or assist in
rendering transportation service or transportation planning in
adjacent states.
"User fees." Rates, tolls, fees or other charges imposed by
a private entity for use of all or a portion of a qualifying
transportation facility pursuant to an interim agreement or a
comprehensive agreement.
"Vehicle." A conveyance in or on which persons or property
may be carried.
§ 9202. Prerequisite for operation.
A private entity seeking authorization under this part to
develop or operate a transportation facility must obtain written
approval from the responsible public entity and the affected
public entity or written approval from the responsible public
entity and deemed approval from the affected public entity under
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section 9203 (relating to approval). A private entity may
initiate the approval process by requesting approval under
section 9203(a), or the responsible public entity, on its own
initiative or jointly with the affected public entity, may
request proposals under section 9203(b).
§ 9203. Approval.
(a) Submission of proposals by private entities.--The
following shall apply to the submission of proposals by private
entities:
(1) A private entity may submit a proposal to the
responsible public entity for approval to develop or operate
a transportation facility. The proposal shall be accompanied
by the following material and information unless waived by
the responsible public entity as provided in regulations
adopted under subsection (f):
(i) A topographic map of 1:2,000 or other
appropriate scale indicating the location of the
transportation facility or facilities.
(ii) A description of the transportation facility or
facilities, including the conceptual design of the
facility and all proposed interconnections with other
transportation facilities.
(iii) The proposed date for development or operation
of the transportation facility along with an estimate of
the life cycle cost of the transportation facility as
proposed.
(iv) A statement setting forth the method by which
the private entity proposes to secure any real, personal
or mixed property interests required for the
transportation facility.
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(v) Information relating to the current
transportation plans of each affected jurisdiction.
(vi) A list of all permits and approvals required
for developing or operating improvements to the
transportation facility from Federal, Commonwealth or
local agencies and a projected schedule for obtaining the
permits and approvals.
(vii) A list of public utility, railroad and cable
television provider facilities that will be crossed by
the transportation facility and a statement of the plans
of the private entity to accommodate the crossings.
(viii) A statement setting forth the private
entity's general plans for developing or operating the
transportation facility, including identification of
revenue or proposed debt or equity investment proposed by
the private entity.
(ix) The names and addresses of the persons who may
be contacted for further information concerning the
proposal.
(x) Information on how the private entity's proposal
will address the needs of Commonwealth, regional or local
transportation by improving safety, reducing congestion,
abating environmental pollution, advancing energy
efficiency or conservation, improving homeland security,
increasing capacity or enhancing economic efficiency.
(xi) A summary of the proposal.
(xii) Additional material and information as may
reasonably be requested under regulations promulgated
under subsection (f).
(2) Within five days following receipt of a proposal,
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the responsible public entity shall provide a copy of the
proposal to the transportation commission. Within 45 days
following receipt of a proposal, the transportation
commission may submit its comments on the proposal to the
responsible public entity, which shall provide a copy of the
commission's comments to the affected public entity and to
each affected jurisdiction.
(3) The following shall apply:
(i) The responsible public entity shall determine if
the proposal includes an affected public entity and
shall, within five days following receipt of the
proposal, provide each affected public entity with a copy
of the summary submitted by the private entity, together
with a written request for the affected public entity's
comments and recommendations on the proposal.
(ii) The affected public entity's comments shall
include whether the proposed qualifying transportation
facility will address the needs of Commonwealth, regional
or local transportation by improving safety, reducing
congestion, abating environmental pollution, advancing
energy efficiency or conservation, improving homeland
security, increasing capacity or enhancing economic
efficiency. The comments and recommendations of the
affected public entity shall utilize the criteria
provided in subsection (d) and any additional criteria
specified in regulations promulgated under subsection (f)
and shall be submitted to the responsible public entity
and the transportation commission within 45 days
following receipt of the responsible public entity's
request for comments and recommendations.
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(iii) If the affected public entity fails to provide
its comments and recommendations to the responsible
public entity within the 45-day period specified in this
paragraph or if there are multiple affected public
entities, the affected public entity shall be deemed to
have approved the proposal and, if the responsible public
entity approves the proposal, shall cooperate fully in
the completion, execution and implementation of any
interim agreement or comprehensive agreement related to
the proposal.
(4) The following shall apply:
(i) Within 10 days following receipt of a proposal,
the responsible public entity shall provide a copy of the
summary submitted by the private entity, together with a
written notification of receipt of the proposal, to each
affected jurisdiction. As part of its written
notification, the responsible public entity shall
identify each affected public entity and shall request
that comments on the proposal be submitted by each
affected jurisdiction. Within 30 days following receipt
of a request from the responsible public entity, each
affected jurisdiction shall submit its comments to the
responsible public entity, each affected public entity
and the transportation commission.
(ii) The affected jurisdiction's comments shall
include whether the proposed qualifying transportation
facility will address the needs of Commonwealth, regional
or local transportation by improving safety, reducing
congestion, abating environmental pollution, advancing
energy efficiency or conservation, improving homeland
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security, increasing capacity or enhancing economic
efficiency.
(5) A written approval or rejection of the proposal
shall be submitted by the responsible public entity to the
private entity within 30 days following the end of all review
periods provided under paragraphs (2), (3) and (4).
(6) The following shall apply:
(i) If the responsible public entity approves the
private entity's proposal, the responsible public entity,
or the affected public entity and the responsible public
entity, jointly, may issue a request for proposals under
section 9217 (relating to procurement) from other private
entities for the development or operation of the
transportation facility. The request for proposals shall
include a requirement that a summary of the response be
submitted.
(ii) Within five days following receipt of a
response to a request for proposals, the responsible
public entity shall submit the summary of the response to
the transportation commission and to each affected
jurisdiction, which shall have 15 days following receipt
of the summary within which to provide comments to the
responsible public entity and the affected public entity.
(iii) Within 30 days following the expiration of the
transportation commission and affected jurisdiction
review period, the responsible public entity shall
provide written notification of its acceptance or
rejection of the initial proposal and each response to
the request for proposals to the private entity which
submitted the initial proposal, each private entity which
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responded to the request for proposals, the
transportation commission, the affected public entity and
each affected jurisdiction.
(7) The responsible public entity and the affected
public entity may provide for payment to a private entity
whose proposal or response to any subsequent request for
proposals is not approved of an amount as reimbursement or
partial reimbursement for costs incurred by the private
entity in preparing the proposal or response, and, in return
for this payment, the private entity shall grant to the
responsible public entity and the affected public entity the
right to use all or any portion of the proposal or the
response, including the technologies, techniques, methods,
processes and information contained in the project design.
(b) Issuance of request for proposals.--The following shall
apply to issuance of request for proposals:
(1) The responsible public entity may, on its own
initiative or at the request of an affected public entity,
issue a request for proposals from private entities for the
development or operation of transportation facilities. An
affected public entity may only issue a request for proposals
from private entities for the development or operation of
transportation facilities jointly with the responsible public
entity. The responsible public entity or the affected public
entity shall not charge a fee to cover the costs of
processing, reviewing and evaluating responses received to a
request for proposals issued under this subsection.
(2) The following shall apply:
(i) The responsible public entity shall, on the date
of issuance of a request for proposals, provide a copy of
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the request for proposals to the transportation
commission and to each affected jurisdiction. As part of
the request for proposals, the responsible public entity
shall require a private entity submitting a response to
simultaneously submit a written summary of its response
to the responsible public entity, to the affected public
entity, to the transportation commission and to each
affected jurisdiction identified in the request for
proposals.
(ii) Within 30 days of receipt of a summary of a
response from a private entity, each affected
jurisdiction shall submit its written comments on the
response to the responsible public entity, the affected
public entity and the transportation commission. Any
comments submitted by an affected jurisdiction must
include an indication of whether the affected
jurisdiction believes the proposed qualifying
transportation facility will address the needs of
Commonwealth, regional or local transportation by
improving safety, reducing congestion, abating
environmental pollution, advancing energy efficiency or
conservation, improving homeland security, increasing
capacity or enhancing economic efficiency.
(iii) The transportation commission shall have 15
days following the expiration of the 30-day affected
jurisdiction comment period provided in this paragraph
within which to submit written comments on the response
to the responsible public entity and the affected public
entity.
(3) If a private entity's response is not approved, the
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responsible public entity and the affected public entity may
provide for payment of an amount as reimbursement or partial
reimbursement for costs incurred by the private entity in
preparing the response, and, in return for this payment, the
private entity shall grant to the responsible public entity
and the affected public entity the right to use all or a
portion of the response, including the technologies,
techniques, methods, processes and information contained in
the project design.
(c) Private entity adverse interests.--The following shall
apply:
(1) Except as provided in paragraph (2), a private
entity which submits a proposal or a response to a request
for proposals under subsection (a) or which submits a
response to a request for proposals under subsection (b) and
which is also a State advisor or a State consultant for the
responsible public entity or an affected public entity shall
not be deemed to be in violation of the act of July 19, 1957
(P.L.1017, No.451), known as the State Adverse Interest Act,
while engaging in any of the following activities:
(i) Preparing or submitting the proposal or response
to a request for proposals.
(ii) Participating in any activities with the
responsible public entity or the affected public entity
related to the proposal or response to request for
proposals.
(iii) Negotiating and entering into any contract,
lease, interim agreement or comprehensive agreement with
the responsible public entity or the affected public
entity which results from the proposal or response to
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request for proposals.
(iv) Engaging in other actions taken in furtherance
of the purposes of this part.
(2) A private entity which submits a proposal or a
response to a request for proposals shall be prohibited from
providing advice to the responsible public entity and the
affected public entity under subsection (d) on its proposal
or a request for proposals for which it has submitted a
response.
(d) Criteria for review.--The responsible public entity and
the affected public entity may grant approval of the development
or operation of the transportation facility as a qualifying
transportation facility if both the responsible public entity
and the affected public entity determine that it serves the
public purpose of this part. The responsible public entity and
the affected public entity may determine that the development or
operation of the transportation facility as a qualifying
transportation facility serves such public purpose if all of the
following apply:
(1) There is a public need for the transportation
facility the private entity proposes to develop or operate as
a qualifying transportation facility.
(2) The transportation facility and the proposed
interconnections with existing transportation facilities and
the private entity's plans for development or operation of
the qualifying transportation facility are, in the opinion of
the responsible public entity and the affected public entity,
reasonable and will address the needs of Commonwealth,
regional or local transportation by improving safety,
reducing congestion, addressing environmental concerns,
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advancing energy efficiency or conservation, improving
homeland security, increasing capacity or enhancing economic
efficiency.
(3) The estimated cost of the transportation facility is
reasonable in relation to similar facilities.
(4) The private entity's plans will result in the timely
development, operation or more efficient operation of the
transportation facility.
(5) The private entity will agree to honor any existing
collective bargaining agreement related to the qualifying
transportation facility for the term of the agreement and
will comply with the act of August 15, 1961 (P.L.987,
No.442), known as the Pennsylvania Prevailing Wage Act, with
regard to the development or operation of the qualifying
transportation facility. In evaluating a proposal or response
to a request for proposals, the responsible public entity and
the affected public entity may rely upon internal staff
reports prepared by personnel familiar with the operation of
similar facilities or the advice of outside advisors or
consultants having relevant experience. The responsible
public entity and the affected public entity may request the
advice and assistance of other public entities in the
performance of their duties under this part.
(e) Fees.--The following shall apply to fees:
(1) The responsible public entity may charge a
reasonable fee to cover the costs of processing, reviewing
and evaluating a proposal submitted by a private entity or a
subsequent response to a request for proposals under
subsection (a), including reasonable attorney fees and fees
for financial and other necessary advisors or consultants.
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The fee to be charged by the responsible public entity shall
include a reasonable reimbursement for costs incurred by the
affected public entity for its review of a proposal or a
response to a request for proposals. The responsible public
entity shall annually publish a notice in the Pennsylvania
Bulletin of the fee schedule for the review of proposals and
responses to requests for proposals submitted by private
entities under subsection (a).
(2) All fees collected under paragraph (1) shall be
retained by the responsible public entity and the affected
public entity and used as provided under paragraph (1) or for
other purposes permitted under this part.
(3) No fee shall be imposed by the responsible public
entity or any affected public entity for the cost of
processing, reviewing and evaluating responses to any request
for proposals under subsection (b).
(f) Regulations.--The following shall apply to regulations:
(1) In order to facilitate the implementation of this
part and to provide one uniform procedure for submission and
review of proposals submitted, issuance of a request for
proposals and submission and review of responses to a request
for proposals under subsection (a) and responses to requests
for proposals under subsection (b), the responsible public
entity shall promulgate regulations that include all of the
following:
(i) A specific schedule for review of proposals or
responses to requests for proposals by the responsible
public entity and the affected public entity.
(ii) A process for alteration of that schedule by
the responsible public entity and the affected public
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entity if changes are necessary because of the scope or
complexity of proposals or responses received.
(iii) The process for receipt and review of
competing proposals and responses to requests for
proposals.
(iv) The type and amount of information that is
necessary for adequate review of proposals or responses
to requests for proposals in each stage of review.
(v) A prioritized documentation, review and
selection process for qualifying transportation
facilities that have approved or pending Federal and
Commonwealth clearances, have secured significant right-
of-way, have previously been allocated significant
Federal or Commonwealth funding or exhibit other
circumstances that could reasonably reduce the amount of
time to develop or operate the qualifying transportation
facility in accordance with the purpose of this part.
(vi) Action to be taken to protect confidential and
proprietary information required under subsection (i).
(vii) Any other provisions which are required under
this part or which the responsible public entity
determines are necessary for implementation of this part.
(2) Within 120 days following the effective date of this
subsection, the responsible public entity shall publish draft
interim regulations in the Pennsylvania Bulletin for comment.
The draft interim regulations shall have a 60-day public
comment period. Within 90 days following the close of the
public comment period on the draft interim regulations, the
responsible public entity shall publish final interim
regulations in the Pennsylvania Bulletin implementing this
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part. The draft interim regulations and the final interim
regulations shall not be subject to section 201 of the act of
July 31, 1968 (P.L.769, No.240), referred to as the
Commonwealth Documents Law, nor to review or approval under
the act of June 25, 1982 (P.L.633, No.181), known as the
Regulatory Review Act. The final interim regulations shall
expire on the earlier of the following:
(i) Two years after their publication in the
Pennsylvania Bulletin.
(ii) The publication of final regulations pursuant
to the Commonwealth Documents Law and the Regulatory
Review Act.
(g) Requirement for interim agreement or comprehensive
agreement.--The approval of the responsible public entity and
the affected public entity shall be subject to the private
entity's entering into an interim agreement or a comprehensive
agreement with the responsible public entity and the affected
public entity.
(h) Date for beginning construction or improvements.--In
connection with approval of the development or operation of the
transportation facility as a qualifying transportation facility,
the responsible public entity and the affected public entity
shall establish a date for the beginning of construction of or
improvements to the qualifying transportation facility. The
responsible public entity and the affected public entity may
extend this date.
(i) Confidential and proprietary information.--The following
shall apply:
(1) In the regulations promulgated under subsection (f),
the responsible public entity shall specify appropriate
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action to be taken by the responsible public entity, the
affected public entity, the affected jurisdiction and the
transportation commission to protect confidential and
proprietary information provided by the private entity.
(2) A proposal or a response to a request for proposals
submitted by a private entity under subsection (a), a
response submitted by a private entity to a request for
proposals under subsection (b) and the summary of the
proposal or response shall be confidential and, until a
comprehensive agreement under section 9208 (relating to
comprehensive agreement) is entered into by the private
entity and the responsible public entity or the affected
public entity, the proposal, the response and the summary
shall not be subject to disclosure under the act of February
14, 2008 (P.L.6, No.3), known as the Right-to-Know Law, or
any other act. Upon the execution of a comprehensive
agreement under section 9208, information contained in the
proposal, the response and the summary shall be considered to
be a public record for purposes of disclosure under the
Right-to-Know Law.
(j) Federal credit assistance.--The responsible public
entity and the affected public entity may also apply for,
execute or endorse applications submitted by private entities to
obtain Federal credit assistance for qualifying transportation
facilities developed or operated under this part.
(k) Taxes.--All of the following shall apply:
(1) Revenue received by a private entity and all user
fees shall continue to be subject to any tax, and to future
increases in the rate of any tax, which was imposed by a
political subdivision prior to the effective date of this
20090HB1510PN1870 - 22 -
subsection and which was otherwise applicable to the revenue
and user fees.
(2) No new tax may be imposed by a political subdivision
on the revenue received by a private entity or on user fees.
(l) Definitions.--As used in this section, the following
words and phrases shall have the meanings given to them in this
subsection:
"State advisor." As defined in section 2 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 of the act of
July 19, 1957 (P.L.1017, No.451), known as the State Adverse
Interest Act.
§ 9204. Service contracts.
In addition to any authority otherwise conferred by law, a
public entity may contract with a private entity for
transportation services to be provided by a qualifying
transportation facility in exchange for service payments and
other consideration as the public entity may deem appropriate.
§ 9205. Transfer and dedication of public property.
(a) Powers.--Except for an ownership interest and subject to
the provisions of this part, a public entity may transfer a
real, personal or mixed property interest it has in a qualifying
transportation facility to a private entity for such
consideration as the public entity and the private entity may
agree upon.
(b) Consideration.--Consideration under subsection (a) may
include the agreement of the private entity to operate the
qualifying transportation facility.
(c) Interests.--Except for an ownership interest, the real,
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personal or mixed property interests that the public entity may
transfer to the private entity under this section may include
licenses, leaseholds, franchises, easements or any other right
or interest in the qualifying transportation facility which the
public entity deems appropriate.
(d) Additional property.--Subject to the provisions of this
part, the private entity may acquire, construct and purchase
additional real, personal and mixed property and incorporate the
additional property into the qualifying transportation facility
if, upon the incorporation, all ownership interests in the
property are transferred and dedicated to and vested in the
public entity, for such consideration as the public entity and
the private entity may agree, with the private entity retaining
the property interests other than an ownership interest.
(e) Definition.--As used in this section the term "ownership
interest" means fee simple title and reversionary interest in
the real property and similar title and rights in the personal
and mixed property constituting the qualifying transportation
facility.
§ 9206. Powers, duties and liability of private entity.
(a) General powers.--A private entity shall have all power
allowed by law generally to a private entity having the same
form of organization as the private entity and shall have the
power to develop or operate the qualifying transportation
facility, impose user fees and enter into service contracts in
connection with the use of the qualifying transportation
facility. No tolls or user fees may be imposed by the private
entity without the necessary Federal, Commonwealth or local
approvals and as provided in the interim agreement or the
comprehensive agreement.
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(b) Right to lease, use, develop or operate qualifying
transportation facility.--A private entity may lease or acquire
any other right to use or develop or operate the qualifying
transportation facility. No interim agreement, comprehensive
agreement, lease or contract involving real property of a
qualifying transportation facility shall be subject to the
realty transfer tax imposed under Article XI-C or XI-D of the
act of March 4, 1971 (P.L.6, No.2), known as the Tax Reform Code
of 1971, or under the act of December 31, 1965 (P.L.1257,
No.511), known as The Local Tax Enabling Act.
(c) Canals and waterways.--Subject to applicable permit
requirements, a private entity shall have the authority to cross
any canal or navigable watercourse if the crossing does not
unreasonably interfere with then-current navigation and use of
the waterway.
(d) Operation of qualifying transportation facility.--In
operating the qualifying transportation facility, a private
entity may do all of the following:
(1) Make classifications according to reasonable
categories for assessment of user fees.
(2) Make and enforce, with the consent of the
responsible public entity or the affected public entity,
reasonable rules to the same extent that the responsible
public entity or the affected public entity may make and
enforce rules with respect to a similar transportation
facility.
(e) Duties.--The private entity shall do all of the
following:
(1) Develop or operate, in accordance with the
provisions of the interim agreement or the comprehensive
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agreement, the qualifying transportation facility in a manner
that meets the standards of the responsible public entity or
the affected public entity for similar transportation
facilities operated and maintained by the responsible public
entity or the affected public entity.
(2) Keep the qualifying transportation facility open for
use by the members of the public, in accordance with the
terms and conditions of the interim or comprehensive
agreement, after its initial opening upon payment of the
applicable user fees or service payments. The qualifying
transportation facility may be temporarily closed because of
emergencies or, with the consent of the responsible public
entity or the affected public entity, to protect the safety
of the public or for reasonable construction or maintenance
procedures.
(3) Maintain or provide by contract for the maintenance
of the qualifying transportation facility.
(4) Cooperate with the responsible public entity or the
affected public entity in establishing any interconnection
with the qualifying transportation facility requested by the
responsible public entity or the affected public entity.
(5) Comply with the provisions of the interim or
comprehensive agreement and any service contract.
(f) Liability.--In recognition of the public benefit derived
from a private entity's development or operation of a qualifying
transportation facility, a private entity which develops or
operates a qualifying transportation facility shall not be
subject to civil liability that arises due to the injury or
death of an individual using the qualifying transportation
facility, unless the injury or death results from an act or
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omission of the private entity constituting gross negligence,
recklessness or intentional misconduct.
§ 9207. Interim agreement.
(a) Provisions.--Prior to or in connection with the
negotiation of the comprehensive agreement as provided under
section 9208 (relating to comprehensive agreement), the
responsible public entity or the affected public entity may
enter into an interim agreement with a private entity proposing
the development or operation of the proposed qualifying
transportation facility. The interim agreement shall require a
private entity, for the term of the interim agreement, to
provide the responsible public entity or the affected public
entity with periodic reports and audits related to disclosure,
internal control and performance and financial accounting. The
periodic reports and audits shall be prepared by an independent
consulting or certified public accounting firm engaged by the
private entity and shall be made available by the responsible
public entity or the affected public entity for public
inspection and copying under the act of February 14, 2008
(P.L.6, No.3), known as the Right-to-Know Law. The interim
agreement may provide for all of the following:
(1) Permitting the private entity to commence activities
for which it may be compensated relating to the proposed
qualifying transportation facility, including project
planning and development, advance right-of-way acquisition,
design and engineering, environmental analysis and
mitigation, survey, conducting transportation and revenue
studies and ascertaining the availability of financing for
the proposed qualifying transportation facility or
facilities.
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(2) Establishing the process and timing of the
negotiation of the comprehensive agreement.
(3) Containing any other provisions related to any
aspect of the development or operation of a qualifying
transportation facility that the parties may deem
appropriate.
(b) Multiple private entities.--Notwithstanding any other
provision of this part, the responsible public entity or the
affected public entity may enter into an interim agreement with
multiple private entities if the responsible public entity or
the affected public entity determines in writing that it is in
the public interest to do so. The written determination may not
take effect until a copy is provided to the transportation
commission and is published as a notice in the Pennsylvania
Bulletin.
§ 9208. Comprehensive agreement.
(a) Provisions.--Prior to developing or operating the
qualifying transportation facility, a private entity shall enter
into a comprehensive agreement with the responsible public
entity or the affected public entity. The comprehensive
agreement shall, as appropriate, provide for all of the
following:
(1) Delivery of performance and payment bonds in
connection with the development or operation of the
qualifying transportation facility, in the forms and amounts
satisfactory to the responsible public entity or the affected
public entity.
(2) Review of plans for the development or operation of
the qualifying transportation facility by the responsible
public entity or the affected public entity and approval by
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the responsible public entity or the affected public entity
if the plans conform to standards acceptable to the
responsible public entity or the affected public entity.
(3) Periodic inspection of construction of or
improvements to the qualifying transportation facility by the
responsible public entity or the affected public entity to
ensure that they conform to the standards acceptable to the
responsible public entity or the affected public entity.
(4) Maintenance of a policy of public liability
insurance, copies of which shall be filed with the
responsible public entity or the affected public entity,
accompanied by proofs of coverage, or self-insurance, each in
form and amount satisfactory to the responsible public entity
or the affected public entity and reasonably sufficient to
insure coverage of tort liability to the public and employees
and to enable the continued operation of the qualifying
transportation facility.
(5) Periodic monitoring of the maintenance practices of
the private entity by the responsible public entity or the
affected public entity and the taking of actions as the
responsible public entity or the affected public entity finds
appropriate to ensure that the qualifying transportation
facility is properly maintained.
(6) Reimbursement to be paid to the responsible public
entity or the affected public entity for services provided by
the responsible public entity or the affected public entity.
(7) Filing of appropriate financial statements in a form
acceptable to the responsible public entity or the affected
public entity on a periodic basis.
(8) Compensation to the private entity, which may
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include one or a combination of a reasonable development fee,
a reasonable maximum rate of return on investment or
reimbursement of development expenses in the event of
termination for convenience by the responsible public entity
or the affected public entity, as agreed upon between the
responsible public entity or the affected public entity and
the private entity.
(9) The date of termination of the private entity's
authority and duties under this part and transfer to the
responsible public entity or the affected public entity.
(10) Guaranteed cost and completion guarantees related
to the development or operation of the qualifying
transportation facility and payment of damages for failure to
meet the completion guarantee.
(11) Submission, on at least an annual basis, by the
private entity to the responsible public entity or the
affected public entity of reports and audits related to
disclosure, internal control and performance and financial
accounting. The reports and audits shall be prepared by an
independent consulting or certified public accounting firm
engaged by the private entity and shall be made available by
the responsible public entity or the affected public entity
for public inspection and copying under the act of February
14, 2008 (P.L.6, No.3), known as the Right-to-Know Law.
(b) User fees.--The following shall apply:
(1) The comprehensive agreement shall provide for user
fees as may be established by agreement of the parties.
(2) User fees shall be set at a level that takes into
account lease payments, service payments and compensation to
the private entity or as specified in the comprehensive
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agreement.
(3) A copy of any service contract shall be filed with
the responsible public entity or the affected public entity.
(4) A schedule of the current user fees shall be
provided by the private entity to the responsible public
entity, the affected public entity and each affected
jurisdiction when initially imposed and whenever changed and
shall be made available by the private entity to any member
of the public on request.
(5) In negotiating user fees under this section, the
parties shall establish fees that are the same for persons
using the qualifying transportation facility under like
conditions, except as required by agreement between the
parties to preserve capacity and prevent congestion on the
qualifying transportation facility.
(6) The execution of the comprehensive agreement or any
amendment to the comprehensive agreement shall constitute
conclusive evidence that the user fees provided in the
comprehensive agreement comply with this part.
(7) User fees established in the comprehensive agreement
as a source of revenue may be in addition to or in lieu of
service payments.
(c) Grants and loans.--In the comprehensive agreement, the
responsible public entity or the affected public entity may
agree to make grants or loans to the private entity for the
development or operation of the qualifying transportation
facility from amounts received from the Federal Government or
any of its agencies or instrumentalities.
(d) Additional provisions.--The following shall apply:
(1) The comprehensive agreement shall incorporate the
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duties of the private entity under this part and may contain
other terms and conditions as the responsible public entity
or the affected public entity determines serve the public
purpose of this part.
(2) The comprehensive agreement may contain provisions
under which the responsible public entity or the affected
public entity agrees to provide notice of default and cure
rights for the benefit of the private entity and the persons
specified in the comprehensive agreement as providing
financing for the qualifying transportation facility.
(3) The comprehensive agreement may contain other lawful
terms and conditions to which the private entity and the
responsible public entity or the affected public entity
mutually agree, including provisions regarding unavoidable
delays or provisions providing for a loan of public funds for
the development or operation of one or more qualifying
transportation facilities.
(e) Excess earnings.--The comprehensive agreement shall
provide for the distribution of any earnings in excess of the
maximum rate of return as negotiated in the comprehensive
agreement. Excess earnings may be distributed to the fund
established under section 9218 (relating to Public-Private
Transportation Partnership Fund) or to the private entity for
debt reduction.
(f) Amendment.--Any changes in the terms of the
comprehensive agreement as may be agreed upon by the parties
shall be added to the comprehensive agreement by written
amendment.
(g) Multiple private entities.--Notwithstanding any other
provision of this part, the responsible public entity or the
20090HB1510PN1870 - 32 -
affected public entity may enter into a comprehensive agreement
with multiple private entities if the responsible public entity
or the affected public entity determines in writing that it is
in the public interest to do so. The written determination may
not take effect until a copy is provided to the transportation
commission and is published as a notice in the Pennsylvania
Bulletin.
(h) Phased development and operation.--The comprehensive
agreement may provide for the development or operation of phases
or segments of the qualifying transportation facility.
§ 9209. Multiple affected public entities.
(a) Private entity proposals.--If a private entity submits a
proposal pursuant to section 9203(a) (relating to approval) to
develop or operate a qualifying transportation facility that may
require approval by the responsible public entity and more than
one affected public entity, representatives of each of the
affected public entities shall convene and determine which
affected public entity shall serve as the coordinating affected
public entity. The determination shall occur within ten days of
the receipt of the summary of the proposal by the respective
affected public entities. If the affected public entities cannot
reach agreement on which affected public entity will serve as
the coordinating affected public entity within the allotted ten-
day period, the responsible public entity shall designate one of
the affected public entities to serve as the coordinating
affected public entity.
(b) Comments and review.--The coordinating affected public
entity shall be subject to the requirements of section 9203(a)
(3) for completion of its review and submission of its comments
and recommendations, except that the coordinating affected
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public entity may submit a written request to the responsible
public entity requesting approval of an extension of up to 20
days for completion of its review and submission of its
recommendations. If the coordinating affected public entity
fails to provide its comments and recommendations to the
responsible public entity within the 45-day period specified in
section 9203(a)(3) or any extension of that period granted by
the responsible public entity, all affected public entities on
whose behalf the coordinating affected public entity was
designated to act shall be deemed to have approved the proposal
and, if the responsible public entity approves the proposal,
shall cooperate fully in completion, execution and
implementation of any interim agreement or comprehensive
agreement related to the proposal.
(c) Request for proposals.--If a request for proposals is
issued pursuant to section 9203(b) and the issuance includes
more than one affected public entity, the responsible public
entity shall request that representatives of each of the
affected public entities convene and determine which affected
public entity shall serve as the coordinating affected public
entity. The determination of which affected public entity shall
serve as the coordinating affected public entity shall be made
prior to issuance of a request for proposals. If the affected
public entities cannot reach agreement on the designation of a
coordinating affected public entity within ten days of receipt
of a written request from the responsible public entity to
convene and make a designation, the responsible public entity
shall designate one of the affected public entities to serve as
the coordinating affected public entity.
(d) Action following determination.--Once a determination
20090HB1510PN1870 - 34 -
has been made in accordance with subsection (a), (b) or (c), the
responsible public entity, the coordinating affected public
entity and the private entity shall proceed in accordance with
this part.
§ 9210. Federal, Commonwealth and local assistance.
(a) Obtaining assistance.--The responsible public entity and
the affected public entity may take any action to obtain
Federal, Commonwealth or local assistance for a qualifying
transportation facility that serves the public purpose of this
part and may enter into any contracts required to receive
Federal assistance. Funds received from the Commonwealth, other
than grant or loan funds provided pursuant to statute, or from
the Federal Government or a Federal agency or instrumentality
shall be subject to appropriation by the General Assembly. The
responsible public entity and the affected public entity may
determine that it serves the public purpose of this part for all
or any portion of the costs of a qualifying transportation
facility to be paid, directly or indirectly, from the proceeds
of a grant or loan made by the Federal, Commonwealth or local
government or a government agency or instrumentality.
(b) Use of grants and loans.--The responsible public entity
and the affected public entity may agree to make grants or loans
for the development or operation of the qualifying
transportation facility from amounts received from the Federal,
Commonwealth or local government or a government agency or
instrumentality.
(c) Pledge of Commonwealth full faith and credit.--Nothing
in this part or in an interim or comprehensive agreement entered
into pursuant to this part shall be deemed to enlarge, diminish
or affect the authority otherwise possessed by the responsible
20090HB1510PN1870 - 35 -
public entity and the affected public entity to take action that
would impact the debt capacity of the Commonwealth or the
affected jurisdictions, except that in no event shall any debt
financing for a qualifying transportation facility pledge the
full faith and credit of the Commonwealth for the payment of
debt and that any debt incurred for financing of a qualifying
transportation facility shall be payable solely from one or a
combination of:
(1) revenue for the qualifying transportation facility;
(2) a pledge of, security interest in or lien on grants,
loans or other funds received by or provided by the private
entity, the affected public entity or an affected
jurisdiction; or
(3) a pledge of, security interest in or lien on real,
personal or mixed property owned by the private entity.
§ 9211. Financing.
(a) General rule.--Except as provided in section 9210(c)
(relating to Federal, Commonwealth and local assistance), any
financing of a qualifying transportation facility may be in
amounts and upon terms and conditions as determined by the
parties to the interim or comprehensive agreement.
(b) Exception.--Without limiting the generality of
subsection (a), the private entity, the responsible public
entity, the affected public entity and an affected jurisdiction
may propose to utilize any and all money that may be available
to them and may, to the fullest extent permitted by applicable
law and subject to the limitations of section 9210(c), issue
debt, equity or other securities or obligations, enter into
leases and grant and loan agreements, access any designated
transportation trust funds, borrow or accept grants from any
20090HB1510PN1870 - 36 -
Commonwealth program and secure any financing with a pledge of,
security interest in or lien on, any or all of the revenue from
the qualifying transportation facility, money from any grants,
loans or other funds received by or provided by the private
entity, the affected public entity or an affected jurisdiction,
and any real, personal or mixed property owned by the private
entity.
§ 9212. Material default; remedies.
(a) Remedies.--Upon the occurrence and during the
continuation of material default, the responsible public entity
or the affected public entity may exercise the following
remedies:
(1) The responsible public entity or the affected public
entity may elect to take over the qualifying transportation
facility and shall succeed to all of the right, title and
interest in the qualifying transportation facility, subject
to liens on revenue previously granted by the private entity
to a person providing financing for the transportation
facility.
(2) The responsible public entity or the affected public
entity may terminate the interim or comprehensive agreement
and exercise any other rights and remedies which may be
available to it at law or in equity.
(3) The responsible public entity or the affected public
entity may make or cause to be made any appropriate claims
under the performance or payment bonds required by section
9208 (relating to comprehensive agreement).
(b) Exercise of remedies.--If the responsible public entity
or the affected public entity elects to take over a qualifying
transportation facility under subsection (a), the responsible
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public entity or the affected public entity may develop or
operate the qualifying transportation facility, impose user fees
for the use of the facility and comply with service contracts as
if the responsible public entity or the affected public entity
were the private entity. Revenue subject to a lien shall be
collected for the benefit of, and paid to, secured parties as
their interests may appear and to the extent necessary to
satisfy the private entity's obligations to the secured parties,
including the maintenance of reserves, and the liens shall be
correspondingly reduced and, when paid off, released. Before any
payments to, or for the benefit of, secured parties, the
responsible public entity or the affected public entity may use
revenue to pay current operation and maintenance costs of the
qualifying transportation facility or facilities, including
compensation to the responsible public entity or the affected
public entity for its services in operating and maintaining the
qualifying transportation facility. Remaining revenue after all
payments for operation and maintenance of the qualifying
transportation facility and all payments to or for the benefit
of secured parties shall be paid to the private entity, subject
to the negotiated maximum rate of return. The right to receive
the payment shall be considered just compensation for the
qualifying transportation facility. The full faith and credit of
the Commonwealth shall not be pledged to secure any financing of
the private entity by the election to take over the qualifying
transportation facility. Assumption of operation of the
qualifying transportation facility shall not obligate the
responsible public entity or the affected public entity to pay
any obligation of the private entity from sources other than
revenue.
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§ 9213. Eminent domain.
(a) Exercise of eminent domain.--At the request of the
private entity, the responsible public entity and the affected
public entity may exercise the right of eminent domain for the
purpose of acquiring any lands or estates or interests therein
to the extent permitted by laws governing eminent domain and to
the extent that the responsible public entity or the affected
public entity finds that the action serves the public purpose of
this part. Any amounts to be paid in any such eminent domain
proceeding shall be paid by the private entity.
(b) Exercise against qualifying transportation facility.--
Except as provided in subsection (a), until the responsible
public entity or the affected public entity, after notice to the
private entity and the secured parties as may appear in the
private entity's records and an opportunity for hearing, has
obtained a final declaratory judgment that a material default
has occurred and is continuing, the power of eminent domain may
not be exercised against a qualifying transportation facility.
(c) Exercise following declaratory judgment.--After the
entry of a final declaratory judgment, the responsible public
entity or the affected public entity having the power of eminent
domain under the laws of this Commonwealth may exercise the
power of eminent domain, in lieu of or at any time after taking
over the qualifying transportation facility pursuant to section
9212(a)(1) (relating to material default; remedies), in order to
acquire the qualifying transportation facility or facilities.
Nothing in this part shall be construed to limit the exercise of
the power of eminent domain by the responsible public entity or
the affected public entity against a qualifying transportation
facility after the entry of a final declaratory judgment
20090HB1510PN1870 - 39 -
pursuant to subsection (b). Any person that has provided
financing for the qualifying transportation facility and the
private entity, to the extent of its capital investment, may
participate in the eminent domain proceedings with the standing
of a property owner.
§ 9214. Public utility crossings.
A private entity and each public utility, railroad and cable
television provider whose facilities are to be crossed or
affected shall cooperate fully with each other in planning and
arranging the manner of the crossing or relocation of the
facilities. Any entity possessing the power of eminent domain is
expressly granted authority to utilize such powers to the extent
permitted by laws governing eminent domain in connection with
the moving or relocation of facilities to be crossed by the
qualifying transportation facility or that must be relocated to
the extent that such moving or relocation is made necessary or
desirable by construction of or improvements to the qualifying
transportation facility, which shall be construed to include
construction of or improvements to temporary facilities for the
purpose of providing service during the period of construction
or improvement. If the private entity and any public utility,
railroad and cable television provider are unable to agree upon
a plan for a crossing or relocation, the commission may
determine the manner in which the crossing or relocation shall
be accomplished and shall determine any damages due as a result
of the crossing or relocation. The commission may employ expert
engineers to examine the location and plans for the crossing or
relocation, hear objections, consider modifications and make
recommendations to the commission, in which case the cost of the
expert shall be borne by the private entity. Any amount to be
20090HB1510PN1870 - 40 -
paid for a crossing or for construction of, moving or relocating
facilities shall be paid by the private entity or any other
person who is contractually responsible to make the payment
under an interim or comprehensive agreement or any other
contract, license or permit. The commission shall make a
determination within 90 days of notification by the private
entity that the qualifying transportation facility will cross
public utilities subject to the commission's jurisdiction.
§ 9215. Police powers; violations of law.
(a) Powers and jurisdiction.--All law enforcement officers
of the Commonwealth and each affected jurisdiction shall have
the same powers and jurisdiction within the limits of a
qualifying transportation facility as they have in their
respective areas of jurisdiction, and law enforcement officers
shall have access to the qualifying transportation facility at
any time for the purpose of exercising their law enforcement
powers and jurisdiction. The grant of authority in this
subsection does not extend to the private offices, buildings,
garages and other improvements of the private entity to any
greater degree than the police power extends to any other
private buildings and improvements.
(b) Enforcement of traffic laws.--To the extent the
qualifying transportation facility is a highway, bridge, tunnel,
overpass or similar transportation facility for motor vehicles,
the traffic and motor vehicle laws of this Commonwealth or, if
applicable, any local jurisdiction shall be the same as those
applying to conduct on similar transportation facilities in this
Commonwealth or the local jurisdiction. Punishment for offenses
shall be as prescribed by law for conduct occurring on similar
transportation facilities in this Commonwealth or the local
20090HB1510PN1870 - 41 -
jurisdiction.
(c) Payment of costs.--A private entity shall be responsible
for the payment of all costs associated with the provision of
law enforcement services pursuant to subsections (a) and (b)
within the limits of a qualifying transportation facility.
(d) Imposition, collection and disposition of fines.--Fines
imposed by law enforcement officers for violations occurring
within the limits of a qualifying transportation facility shall
be imposed, collected, distributed and governed as otherwise
provided by applicable law.
§ 9216. Transfer of assets.
The responsible public entity or the affected public entity
shall terminate the private entity's authority and duties under
this part on the date set forth in the interim or comprehensive
agreement. Upon termination, the authority and duties of the
private entity under this part shall cease, and all property,
real, personal and mixed, constituting the qualifying
transportation facility shall be transferred to the responsible
public entity or the affected public entity, if any.
§ 9217. Procurement.
(a) General rule.--The Procurement Code shall not apply to
this part or to development, operation, construction,
improvement, alteration or maintenance of a qualifying
transportation facility by a private entity. Contracts shall be
awarded and interim and comprehensive agreements shall be
entered into through use of a competitive process or by private
negotiation as provided in regulations promulgated pursuant to
section 9203(f) (relating to approval). Responsible public
entities and affected public entities shall not be required to
select the proposal with the lowest price offer or the highest
20090HB1510PN1870 - 42 -
price offer, but may consider price as one factor in evaluating
the proposals received. Other factors that may be considered
include:
(1) proposed cost of the qualifying transportation
facility;
(2) general reputation, qualifications, industry
experience and financial capacity of the private entity;
(3) proposed design, operation and feasibility of the
qualifying transportation facility;
(4) eligibility of the qualifying transportation
facility for priority selection, review and documentation
time lines under the regulations promulgated pursuant to
section 9203(f);
(5) local citizen and public entity comments;
(6) benefits to the public;
(7) the private entity's compliance with a minority
business enterprise participation plan or good faith effort
to comply with the goals of a plan;
(8) the private entity's plans to employ local
contractors and residents;
(9) the safety record of the private entity;
(10) the ability of the qualifying transportation
facility to address the needs of Commonwealth, regional or
local transportation by improving safety, reducing
congestion, abating environmental pollution, advancing energy
efficiency or conservation, improving homeland security,
increasing capacity or enhancing economic efficiency; and
(11) other criteria that the responsible public entity
and the affected public entity deem appropriate.
(b) Specific exemption.--In no event shall a private entity,
20090HB1510PN1870 - 43 -
a responsible public entity or an affected public entity be
subject to requirements of the act of May 1, 1913 (P.L.155,
No.104), referred to as the Separations Act, with regard to a
qualifying transportation facility which is the subject of an
interim agreement or a comprehensive agreement.
§ 9218. Public-Private Transportation Partnership Fund.
(a) Establishment.--There is established within the State
Treasury a special fund to be known as the Public-Private
Transportation Partnership Fund for the purposes enumerated in
this section. Interest and investment earnings on money in the
fund shall be retained in the fund. Money in the fund shall be
used for the purposes enumerated in subsection (c). Money in the
fund shall not lapse and is appropriated upon approval of the
Governor for the purposes enumerated in subsection (c).
(b) Deposits to fund.--Money to be deposited in the fund
includes:
(1) excess earnings as provided in section 9208(e)
(relating to comprehensive agreement);
(2) monetary damages received by the responsible public
entity and the affected public entity for failure by the
private entity to comply with the terms of an interim
agreement or a comprehensive agreement;
(3) payments made to the responsible public entity and
the affected public entity from any performance or payment
bond; and
(4) any other money received by the responsible public
entity and the affected public entity and earmarked for
deposit into the fund pursuant to the terms of an interim
agreement or a comprehensive agreement.
(c) Authorized uses.--Money in the fund shall be allocated
20090HB1510PN1870 - 44 -
by majority vote of the transportation commission and may, upon
allocation, be used:
(1) for maintenance, repair, construction,
reconstruction and operation of transportation facilities
available for use by the public and for which no toll, fee or
other charge is imposed for public use; or
(2) by an affected public entity for transportation-
related purposes under a written agreement with the
responsible public entity as approved by majority vote of the
transportation commission.
(d) Restrictions on transfers from fund.--Money in the fund
shall not be transferred to the General Fund or any other fund
or used for any purpose not specifically authorized in
subsection (c) unless the transfer or use is by statute approved
by a two-thirds vote of the General Assembly.
Section 2. All acts and parts of acts are repealed to the
extent they are inconsistent with the provisions of 74 Pa.C.S.
Pt. V.
Section 3. This act shall take effect as follows:
(1) The following provisions shall take effect
immediately:
(i) The addition of 74 Pa.C.S. § 9203(f) and (k).
(ii) This section.
(2) The remainder of this act shall take effect on the
earlier of:
(i) 120 days; or
(ii) the date of publication of draft interim
regulations under 74 Pa.C.S. § 9203(f).
20090HB1510PN1870 - 45 -