Introduced Version
House Bill 2511 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 2511
(By Mr. Speaker, (Mr. Thompson) and Delegate Armstead)
[By Request of the Executive]
[Introduced February 15, 2013; referred to the
Committee on Roads and Transportation then Finance.]
A BILL to amend and reenact §17-27-5 and §17-27-9 of the Code of
West Virginia, 1931, as amended, all relating to the funding
of transportation public-private partnership projects and
their corresponding comprehensive agreements; eliminating
requirement that money from the State Road Fund only be used
for public-private partnership projects where the money serves
as a required match for federal funds specifically earmarked
in a federal authorization or appropriation bill and does not
exceed four percent of the immediate preceding three fiscal
years' average of the Division of Highway's construction
contracts awarded under the competitive bid process; allowing
public-private partnership projects to use money from the
State Road Fund when the projects are in excess of
$20 million, constructed by the Division of Highways, and
contained in its six-year plan; providing that any earnings in excess of maximum rate of return that is negotiated in
comprehensive agreements be deposited in the State Road Fund;
eliminating a sunset provision prohibiting comprehensive
agreements for public-private partnership projects after June
30, 2013; eliminating the requirement that a comprehensive
agreement for public-private partnership projects be approved
by concurrent resolution of the Legislature and be submitted
to the Governor for his or her approval or disapproval before
the Division of Highways enters into the comprehensive
agreement; and instead mandating that the Division of Highways
provide a copy of any comprehensive agreement to the
Legislature's Joint Committee on Government and Finance at
least thirty days prior to said agreement being executed by
the Division of Highways for a public-private partnership
project.
Be it enacted by the Legislature of West Virginia:
That §17-27-5 and §17-27-9 of the Code of West Virginia, 1931,
as amended, be amended and reenacted, all to read as follows:
ARTICLE 27. PUBLIC-PRIVATE TRANSPORTATION FACILITIES ACT.
§17-27-5. Submission and review of conceptual proposals; approval
by the Commissioner of Highways.
(a) A private entity may submit in writing a solicited
conceptual proposal for a transportation facility to the division for consideration. The conceptual proposal shall include the
following:
(1) A statement of the private entity's qualifications and
experience;
(2) A description of the proposed transportation facility;
(3) A description of the financing for the transportation
facility; and
(4) A statement setting forth the degree of public support for
the proposed transportation facility, including a statement of the
benefits of the proposed transportation facility to the public and
its compatibility with existing transportation facilities.
(b) Following review by the division, the division shall
submit to the Commissioner of Highways the conceptual proposals and
priority ranking for review for final selection.
(c) The conceptual proposal shall be accompanied by the
following material and information unless waived by the division
with respect to the transportation facility or facilities that the
private entity proposes to develop as a qualifying transportation
facility:
(1) A topographic map (1:2,000 or other appropriate scale)
indicating the location of the transportation facility or
facilities;
(2) A description of the transportation facility or
facilities, including the conceptual design of the facility or facilities and all proposed interconnections with other
transportation facilities;
(3) The projected total life-cycle cost of the transportation
facility or facilities and the proposed date for acquisition of or
the beginning of construction of, or improvements to, the
transportation facility or facilities;
(4) A statement setting forth the method by which the
developer proposes to secure all property interests required for
the transportation facility or facilities: Provided, That with the
approval of the division, the private entity may request that the
comprehensive agreement assign the division with responsibility for
securing all property interests, including public utility
facilities, with all costs, including costs of acquiring the
property, to be reimbursed to the division by the private entity.
The statement shall include the following information regarding the
property interests or rights, including, but not limited to, rights
to extract mineable minerals:
(A) The names and addresses, if known, of the current owners
of the property needed for the transportation facility or
facilities;
(B) The nature of the property interests to be acquired;
(C) Any property that the division may expect to condemn; and
(D) The extent to which the property has been or will be
subjected to the extraction of mineable minerals.
(5) Information relating to the current transportation plans,
if any, of each affected local jurisdiction;
(6) A list of all permits and approvals required for
acquisition or construction of or improvements to the
transportation facility or facilities from local, state or federal
agencies and a projected schedule for obtaining the permits and
approvals: Provided, That the acquisition, construction,
improvement or operation of a qualifying transportation facility
that includes the extraction of mineable minerals is required to
obtain all necessary permits or approvals from all applicable
authorities in the same manner as if it were not a qualifying
transportation facility under this article;
(7) A list of public utility facilities, if any, that will be
crossed or affected by or as the result of the construction or
improvement of the public port transportation facility or
facilities and a statement of the plans of the developer to
accommodate the crossings or relocations;
(8) A statement setting forth the developer's general plans
for financing and operating the transportation facility or
facilities;
(9) The names and addresses of the persons who may be
contacted for further information concerning the request;
(10) Information about the developer, including, but not
limited to, an organizational chart of the developer, capitalization of the developer, experience in the operation of
transportation facilities and references and certificates of good
standing from the Tax Commissioner, Insurance Commissioner and the
Division of Unemployment Compensation evidencing that the developer
is in good standing with state tax, workers' compensation and
unemployment compensation laws, respectively; and
(11) Any additional material and information requested by the
Commissioner of Highways.
(d) The division, with approval of the Commissioner of
Highways, may solicit proposals from private entities for the
acquisition, construction or improvement of transportation
facilities in a form and with the content determined by the
division.
(e) The division may solicit any proposal for the acquisition,
construction or improvement of the transportation facility or
facilities as a qualifying transportation facility if it is
determined that it serves the public purpose of this article. The
division may determine that the acquisition, construction or
improvement of the transportation facility or facilities as a
qualifying transportation facility serves a public purpose if:
(1) There is a public need for the transportation facility of
the type the private entity proposes to operate as a qualifying
transportation facility;
(2) The transportation facility and the proposed interconnections with existing transportation facilities and the
developer's plans for development of the qualifying transportation
facility are reasonable and compatible with the state
transportation plan and with the local comprehensive plan or plans;
(3) The estimated cost of the transportation facility or
facilities is reasonable in relation to similar facilities;
(4) The acquisition, construction, improvement or the
financing of the transportation facility or facilities does not
involve any moneys from the State Road Fund: unless those moneys
from the State Road Fund serve as a required match for federal
funds specifically earmarked in a federal authorization or
appropriation bill for a transportation facility to be acquired,
constructed or equipped pursuant to this article: Provided, That
the dedication of State Road Fund moneys in any fiscal year as
state required match for the federal earmark does not exceed four
percent of the immediate preceding three fiscal years' average of
division's construction contracts awarded under the competitive bid
process: Provided, That moneys from the State Road Fund may be
used if the project is constructed by the division, is in excess of
$20 million, and is contained in the division's six-year plan:
Provided, however, That the moneys from the General Revenue Fund
may also be used if so designated and approved by the Legislature.
(5) The use of federal funds in connection with the financing
of a qualifying transportation facility has been determined by the division to be compatible with the state transportation plan and
with the local comprehensive plan or plans; and
(6) The private entity's plans will result in the timely
acquisition or construction of or improvements to the
transportation facility for their more efficient operation and that
the private entity's plans will result in a more timely and
economical delivery of the transportation facility than otherwise
available under existing delivery systems.
(f) Notwithstanding any provision of this article to the
contrary, the recommendation of the division to the Commissioner of
Highways is subject to:
(1) The private entity's entering into a comprehensive
agreement with the division; and
(2) With respect to transportation facilities, the requirement
that public information dissemination with regard to any proposal
under consideration comply with the division's policy on the public
involvement process, as revised.
(g) In connection with its approval of the development of the
transportation facility as a qualifying transportation facility,
the division shall establish a date for the acquisition of or the
beginning of construction of or improvements to the qualifying
transportation facility. The division may extend that date.
(h) Selection by the Commissioner of Highways.
(1) Upon presentations of proposals received by the division, the commissioner shall make his or her decision for the project.
(2) The commissioner shall notify the division and the public
of the final selection for the project.
§17-27-9. Comprehensive agreement.
(a) Prior to acquiring, constructing or improving the
qualifying transportation facility, the developer shall enter into
a comprehensive agreement with the division. The comprehensive
agreement shall provide for:
(1) Delivery of performance or payment bonds in connection
with the construction of or improvements to the qualifying
transportation facility, in the forms and amounts satisfactory to
the division;
(2) Review and approval of the final plans and specifications
for the qualifying transportation facility by the division;
(3) Inspection of the construction of or improvements to the
qualifying transportation facility to ensure that they conform to
the engineering standards acceptable to the division;
(4) Maintenance of a policy or policies of public liability
insurance or self-insurance, in a form and amount satisfactory to
the division 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: Provided,
That in no event may the insurance impose any pecuniary liability
on the state, its agencies or any political subdivision of the state. Copies of the policies shall be filed with the division
accompanied by proofs of coverage;
(5) Monitoring of the maintenance and operating practices of
the developer by the division and the taking of any actions the
division finds appropriate to ensure that the qualifying
transportation facility is properly maintained and operated;
(6) Itemization and reimbursement to be paid to the division
for the review and any services provided by the division;
(7) Filing of appropriate financial statements on a periodic
basis;
(8) A reasonable maximum rate of return on investment for the
developer;
(9) The date of termination of the developer's duties under
this article and dedication to the division; and
(10) That a transportation facility shall accommodate all
public utilities on a reasonable, nondiscriminatory and completely
neutral basis and in compliance with the provisions of section
seventeen-b, article four, chapter seventeen of this code.
(b) The comprehensive agreement may require user fees
established by agreement of the parties. Any user fees shall be set
at a level that, taking into account any service payments, allows
the developer the rate of return on its investment specified in the
comprehensive agreement: Provided, That the schedule and amount of
the initial user fees to be imposed and any increase of the user fees must be approved by the Commissioner of the Division of
Highways. A copy of any service contract shall be filed with the
division. A schedule of the current user fees shall be made
available by the developer to any member of the public on request.
In negotiating user fees under this section, the parties shall
establish fees that are the same for persons using the facility
under like conditions and that will not unreasonably discourage use
of the qualifying transportation facility. The execution of the
comprehensive agreement or any amendment to the comprehensive
agreement constitutes conclusive evidence that the user fees
provided in the comprehensive agreement comply with this article.
User fees established in the comprehensive agreement as a source of
revenues may be in addition to, or in lieu of, service payments.
(c) In the comprehensive agreement, the division may agree to
accept grants or loans from the developer, from time to time, from
amounts received from the state or federal government or any agency
or instrumentality of the state or federal government.
(d) The comprehensive agreement shall incorporate the duties
of the developer under this article and may contain any other terms
and conditions that the division determines serve the public
purpose of this chapter. Without limitation, the comprehensive
agreement may contain provisions under which the division agrees to
provide notice of default and cure rights for the benefit of the
developer and the persons specified in the comprehensive agreement as providing financing for the qualifying transportation facility.
The comprehensive agreement may contain any other lawful terms and
conditions to which the developer and the division mutually agree,
including, without limitation, provisions regarding unavoidable
delays or provisions providing for a loan of public funds to the
developer to acquire, construct or improve one or more qualifying
transportation facilities.
(e) The comprehensive agreement shall require the deposit of
any earnings in excess of the maximum rate of return as negotiated
in the comprehensive agreement in the Economic Development Project
Bridge Loan Fund State Road Fund established pursuant to section
eighteen-a, article twenty-two, chapter twenty-nine section one,
article three, chapter seventeen of this code.
(f) Any changes in the terms of the comprehensive agreement,
agreed upon by the parties and subject to the requirements of
subsection (h) of this section, shall be added to the comprehensive
agreement by written amendment.
(g) Notwithstanding any provision of this article to the
contrary, the division may not enter into any comprehensive
agreements with a developer after the thirtieth day of June, two
thousand thirteen
(h) Notwithstanding any provision of this article to the
contrary, the division may not enter into any comprehensive
agreements with a developer after the thirtieth day of June, two thousand thirteen.
(i) Notwithstanding any provision of this article to the
contrary, the division may not enter into a comprehensive agreement
until the comprehensive agreement has been approved by the
Legislature by the adoption of a concurrent resolution: Provided,
That all voting on the floor of both houses on the question of the
adoption of any concurrent resolution approving a comprehensive
agreement shall be by yeas and nays to be entered on the Journals.
If the Legislature approves the comprehensive agreement, the
division shall submit the comprehensive agreement to the Governor
for his or her approval or disapproval. at least thirty days prior
to execution, the commissioner shall provide a copy of a
comprehensive agreement to the Joint Committee on Government and
Finance.
NOTE: The purpose of this bill is to allow the Division of
Highways to participate in funding a needed public-private
transportation project, to eliminate the sunset provision for
comprehensive agreements for public-private partnership projects
currently set for June 30, 2013, and to require the division to
provide a copy of a comprehensive agreement to the Joint Committee
on Government and Finance at least thirty days prior to said
agreement being executed by the Commissioner of Highways.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.