COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 221
(By Senators Tomblin, Mr. President, Chafin, McCabe, Facemyer,
Rowe, White, Unger, Fanning, Ross, Dempsey, Sharpe, Caldwell,
Edgell, Plymale, Snyder and Jenkins)
____________
[Originating in the Committee on Economic Development;
reported February 11, 2004.]
____________
A BILL
to amend the code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §17-27-1, §17-27-2,
§17-27-3, §17-27-4, §17-27-5, §17-27-6, §17-27-7, §17-27-8,
§17-27-9, §17-27-10, §17-27-11, §17-27-12, §17-27-13,
§17-27-14, §17-27-15, §17-27-16, §17-27-17, §17-27-18,
§17-27-19, §17-27-20 and §17-27-21, all relating to
establishment of the public-private transportation facilities
act of two thousand four; setting forth legislative findings
and purposes; defining terms; providing prerequisites for
development of a transportation facility; creating public-
private transportation oversight committee; creating the
powers and duties of the committee; providing for the submission of proposals and approval by the committee;
providing for service contracts; providing for the dedication
of public property; setting forth the powers and duties of a
developer; requiring a comprehensive agreement; providing for
federal, state and local assistance; addressing material
default and remedies; prohibiting governmental entities from
pledging full faith and credit; providing for the exercise of
condemnation; addressing utility crossings and relocations;
addressing dedication of assets; providing for an exemption
from purchasing rules; qualifying transportation facilities as
public improvements; providing for an exemption of qualifying
transportation facilities from taxation; setting forth a
termination date; and addressing construction and
severability.
Be it enacted by the Legislature of West Virginia:
That the code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §17-27-1, §17-27-2,
§17-27-3, §17-27-4, §17-27-5, §17-27-6, §17-27-7, §17-27-8,
§17-27-9, §17-27-10, §17-27-11, §17-27-12, §17-27-13, §17-27-14,
§17-27-15, §17-27-16, §17-27-17, §17-27-18, §17-27-19, §17-27-20
and §17-27-21, all to read as follows:
ARTICLE 27. PUBLIC-PRIVATE TRANSPORTATION FACILITIES ACT.
§17-27-1. Legislative findings and purposes.
The Legislature finds and declares:
(1) That there is a public need for timely acquisition or
construction of and improvements to transportation facilities within the state that are compatible with state and local
transportation plans;
(2) That public need may not be wholly satisfied by existing
ways in which transportation facilities are acquired, constructed
or improved;
(3) That authorizing private entities to acquire, construct or
improve one or more transportation facilities may result in the
availability of transportation facilities to the public in a more
timely or less costly manner, thereby serving the public health,
safety, convenience and welfare and the enhancement of the
residential, agricultural, recreational, economic, commercial and
industrial opportunities;
(4) That providing a mechanism for the receipt and
consideration of proposals submitted by private entities for the
purposes described in this section shall serve the public purpose
of this article to the extent that such action facilitates the
timely acquisition or construction of or improvement to a
qualifying transportation facility or the continued operation of a
qualifying transportation facility; and
(5) That providing for the expansion and acceleration of
transportation financing using innovative financing mechanisms will
add to the convenience of the public and allow public and private
entities to have the greatest possible flexibility in contracting
with each other for the provision of the public services which are
the subject of this article.
§17-27-2. Definitions.
As used in this article, the following words and terms have
the following meanings unless the context indicates another or
different meaning or intent:
(a) "Committee" means the public-private transportation
oversight committee.
(b) "Comprehensive agreement" means the comprehensive
agreement by and between a developer, the chairman and the
responsible public entity required by section ten of this article.
(c) "Developer" means the private entity that is responsible
for the acquisition, construction or improvement of a qualifying
transportation facility.
(d) "Material default" means any default by the developer in
the performance of its duties under subsection (f), section eight
of this article that jeopardizes adequate service to the public
from a qualifying transportation facility and remains unremedied
after the responsible public entity has provided notice to the
developer and a reasonable cure period has elapsed.
(e) "Private entity" means any natural person, corporation,
limited liability company, partnership, joint venture or other
private business entity.
(f) "Public entity" means any city, county, or state public
agency.
(g) "Qualifying transportation facility" means one or more
transportation facilities acquired, constructed or improved by a
private entity pursuant to this article.
(h) "Responsible public entity" means a public entity that has the power to acquire, construct or improve the applicable
transportation facility.
(i) "Revenues" means the user fees or service payments
generated by a qualifying transportation facility.
(j) "Service contract" means a contract entered into between
a public entity and a developer pursuant to section six of this
article.
(k) "Service payments" means payments to the developer of a
qualifying transportation facility pursuant to a service contract.
(l) "State" means the state of West Virginia.
(m) "Transportation facility" means any public inland waterway
port facility, railroad, road, bridge, tunnel, overpass or existing
airport used for the transportation of persons or goods, and such
structures, equipment, facilities or improvements as are necessary
or incident thereto.
(n) "User fees" mean the rates, fees or other charges imposed
by the developer of a qualifying transportation facility for use of
all or a portion of the qualifying transportation facility pursuant
to the comprehensive agreement.
§17-27-3. Prerequisites for development.
Any private entity seeking authorization under this article to
acquire, construct or improve a transportation facility shall first
obtain the approvals set forth in section five of this article.
The private entity shall initiate the approval process pursuant to
subsections (a) and (b) of said section or the committee may
alternatively request proposals pursuant to subsection (c) of said section.
§17-2D-4. Creation of public-private transportation oversight
committee; membership.
(a) There is hereby created the public-private transportation
oversight committee, consisting of eleven members, including the
commissioner of highways, who shall be chairperson of the
committee. All members of the committee shall be residents of the
state of West Virginia. The remaining ten members shall consist of
the executive director of the West Virginia development office, the
state highway engineer of the division of highways and eight
persons appointed by the governor from the private sector, by and
with the advice and consent of the Senate. The appointed members
shall include two registered professional engineers; two owners or
officers of construction businesses; two representatives of the
interests of labor; and two who have recognized ability in
infrastructure development.
(b) The committee shall annually elect one of its members as
vice chairman and another as secretary of the committee.
Appointments to fill a vacancy shall be made in the same manner as
the original appointment.
(c) Members of the committee first appointed by the governor
shall serve staggered terms. The terms of the members of the
committee first taking office on and after the effective date of
this section expire as designated by the governor at the time of
nomination, two at the end of the first year, two at the end of the
second year, two at the end of the third year and two at the end of the fourth year. As these original terms expire, each subsequent
appointment shall be for a full four-year term. Any member whose
term has expired shall serve until his or her respective successor
is appointed. The governor shall appoint members from each
congressional district in the state with at least two and no more
than three members who are residents of any one district.
(d) Members of the committee are not entitled to compensation
for their services but shall be reimbursed for all necessary
expenses actually incurred in connection with the performance of
their duties as members. Initial reimbursement shall be made from
the state road fund or other funds made available for this purpose
by the Legislature, the federal government or other sources.
Reimbursements made from the state road fund shall be repaid to
that fund from the fees provided for in section six (f) of this
article.
(e) Six members of the committee constitute a quorum and the
affirmative vote of a majority of members present at the meeting is
necessary and sufficient for any action of the committee, except
the affirmative vote of at least nine members of the committee is
required to approve any proposal for a qualifying transportation
facility at either the conceptual planning or the detailed planning
stage:
Provided, That the project must be approved by a concurrent
resolution approved by both the Senate and the House of Delegates.
Members of the committee may attend and participate in meetings by
telephone or video conference upon terms and conditions approved by
the affirmative vote of nine members of the committee and in accordance with state law.
(f) The committee shall, prior to the first day of August, two
thousand four, propose emergency legislative rules pursuant to the
provisions of article three, chapter twenty-nine-a of this code to
implement the provisions of this article. Initial reimbursement of
committee expenses shall be made from the state road fund or other
funds made available for this purpose by the Legislature, the
federal government or other sources.
§17-27-5. Powers and duties of the committee.
In addition to the powers and duties set forth elsewhere in
this code, the committee shall:
(a) Undertake two levels of review for each proposal submitted
by a private entity in accordance with this article. The first
level of review shall consist of the review by the committee at the
conceptual planning level and the second level of review shall
consist of the review by the committee at the detailed planning
stage:
Provided, That review by the committee of a proposal at
each level shall only be undertaken if the proposal has first
received approval at that level by the responsible public entity.
Expenses of the committee and other public entity incurred for
review of proposal shall be repaid from the fees provided in
section six (f) of this article. At each level of review, the
committee shall take into account at all times the needs and
funding capabilities of the state as a whole in terms of
transportation;
(b) Report annually to the Legislature by the first day of December of each year on the status of projects, operations,
financial condition and other necessary information relating to
transportation facilities that have been approved by or are under
consideration by the committee;
(c) Coordinate with the other public entities established
pursuant to article sixteen-a of this chapter in the exercise of
its powers and duties under this article and development of
qualifying transportation facilities within the state;
(d) Be body corporate, including the power to sue and be used,
to make contracts and to adopt and use a common seal and to alter
the seal as determined to be expedient;
(e) Enter into agreements, contracts or other transactions
with any federal, state, county, municipal agency or private
entity;
(f) Act on behalf of the state and represent the state in the
planning, financing, development and construction of any
transportation facility for which solicited or unsolicited
proposals have been received in accordance with the provisions of
this article, with the concurrence of the affected public entity.
Other public entities in this state shall cooperate to the fullest
extent with what the committee considers appropriate to effectuate
the duties of the committee; and
(g) Do any and all things necessary to carry out and
accomplish the purposes of this article.
§17-27-6. Submission of proposals; approval by the committee.
(a) A private entity may submit any solicited or unsolicited proposal for a transportation facility to the chairman for
approval. In the case of all unsolicited proposals, a conceptual
proposal shall first be submitted for review and approval. The
conceptual proposal shall include the following:
(1) A statement of the 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 approval by the committee of the conceptual
proposal, a detailed proposal shall be submitted by the private
entity in connection with the proposed transportation facility.
Any proposal shall be accompanied by the following material and
information unless waived by the committee 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. The statement shall
include:
(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; and
(C) Any property that the responsible public entity is
expected to be requested to condemn;
(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;
(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 a certificate of good
standing evidencing that the developer is in good standing with the
state tax division, the workers' compensation commission and the
bureau of employment programs; and
(11) Any additional material and information requested by the
chairman.
(d) The committee may request proposals from private entities
for the acquisition, construction or improvement of transportation
facilities in a form and with the content determined by the
committee.
(e) The committee may grant approval of the acquisition,
construction or improvement of the transportation facility or
facilities as a qualifying transportation facility if the committee
determines that it serves the public purpose of this article. The
committee 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 or facilities of the type the private entity proposes to operate as a
qualifying transportation facility;
(2) The transportation facility or facilities and the proposed
interconnections with existing transportation facilities and the
developer's plans for development of the qualifying transportation
facility or facilities 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 or improvement, or the
financing of the transportation facilities does not involve the
dedication in any fiscal year of more than two percent of the
annual division of highways' construction contracts awarded by the
division under competitive bidding process, average over the three
immediately preceding fiscal years:
Provided, That there may not
be taken into account in calculating the amount dedicated as set
forth in this subdivision and there may be available for dedication
to the acquisition, construction or improvement of transportation
facilities any additional amounts specifically appropriated from
state general revenue funds or, in the discretion of the division
of highways, federal funds specifically earmarked in a federal
appropriations bill for a transportation facility to be acquired,
constructed or equipped pursuant to this article;
(5) The use of federal funds in connection with the financing
of a qualifying transportation facility has been determined by the
chairman 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 or facilities 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) The committee may charge a reasonable fee to cover the
costs of processing, reviewing and evaluating the request.
(g) Notwithstanding any provision of this article to the
contrary, the approval of the committee is subject to: (i) The
private entity's entering into a comprehensive agreement with the
committee and the responsible public entity; and (ii) with respect
to transportation facilities, the requirement that public
information dissemination with regard to any proposal under
consideration comply with the public entity's policy on the public
involvement process, as revised.
(h) In connection with its approval of the development of the
transportation facility or facilities as a qualifying
transportation facility, the committee shall establish a date for
the acquisition of or the beginning of construction of or
improvements to the qualifying transportation facility. The
committee may extend that date.
(i) In fulfilling its duties as prescribed by this article,
the committee should be supported by personnel of the appropriate
public entity and may rely upon reports prepared by personnel of the public entity.
(j) The committee may charge a reasonable fee to cover the
costs of processing, reviewing, and evaluating requests.
Unsolicited proposals must be accompanied by a separate fee for
review by the committee and the public entity at each level of
review, to be established by legislative rule and payable prior to
each succeeding level of review, calculated to reimburse the
committee and the appropriate public entity for the costs
associated with processing, reviewing and evaluating requests. The
committee shall advise the developer submitting an unsolicited
proposal in advance if actual costs are anticipated to exceed fees
deposited. The committee may then continue the review of the
unsolicited proposal, or he may condition further review upon
written authorization by the developer, and such assurance as the
committee considers appropriate, that the actual costs of continued
review will be paid by the developer.
§17-27-7. Service contracts.
In addition to any authority otherwise conferred by law, any
public entity may contract for services to be provided for a
qualifying transportation facility in exchange for service payments
and other consideration as the responsible public entity determines
appropriate.
§17-27-8. Dedication of public property.
Any public entity may dedicate any property interest that it
has for public use as a qualified transportation facility if it
finds it will serve the public purpose of this article. In connection with the dedication, a public entity may convey any
property interest that it has to the developer, by contract, for
any consideration determined by the public entity. This
consideration may include, without limitation, the agreement of the
developer to develop the qualifying transportation facility. No
real property may be dedicated by a public entity pursuant to this
article unless all other public notice and comment requirements are
met.
§17-27-9. Powers and duties of the developer.
(a) The developer has all power allowed by law generally to a
private entity having the same form of organization as the
developer and may acquire, construct or improve the qualifying
transportation facility and impose user fees in connection with the
use of the facility. No tolls or user fees may be imposed by the
developer on any existing interstate highway. Furthermore, no
tolls or user fees may be imposed by the developer on any free
port, road, bridge, tunnel or overpass unless the road, bridge,
tunnel or overpass is reconstructed to provide for increased
capacity.
(b) The developer may own, lease or acquire any other right to
facilitate the development of the qualifying transportation
facility.
(c) Any financing of the qualifying transportation facility
may be in the amounts and upon terms and conditions determined by
the developer. The developer may issue debt, equity or other
securities or obligations, enter into sale and leaseback transactions and secure any financing with a pledge of, security
interest in, or lien on, any or all of its property, including all
of its property interests in the qualifying transportation
facility.
(d) Subject to applicable permit requirements, the developer
may cross any canal or navigable watercourse as long as the
crossing does not unreasonably interfere with then current
navigation and use of the waterway.
(e) In developing the qualifying transportation facility, the
developer may:
(1) Make classifications according to reasonable categories
for assessment of user fees; and
(2) With the consent of the responsible public entity, make
and enforce reasonable rules to the same extent that the
responsible public entity may make and enforce rules with respect
to a similar transportation facility. The developer may, by
agreement with appropriate law-enforcement agencies, arrange for
video enforcement in connection with its toll collection
activities.
(f) The developer shall:
(1) Acquire, construct or improve the qualifying
transportation facility in a manner that meets the engineering
standards of:
(A) The responsible public entity for transportation
facilities operated and maintained by the responsible public
entity, in accordance with the provisions of the comprehensive agreement; and
(B) The division of highways, in accordance with the
provisions of the comprehensive agreement;
(2) Keep the qualifying transportation facility open for use
by the members of the public at all times after its initial opening
upon payment of the applicable user fees or service payments:
Provided, That the qualifying transportation facility may be
temporarily closed because of emergencies or, with the consent of
the responsible public entity, to protect the safety of the public
or for reasonable construction or maintenance procedures;
(3) Contract for the performance of all maintenance and
operation of the transportation facility through the responsible
public entity, using its maintenance and operations practices,
until the date of termination of the developer's duties as defined
in the comprehensive agreement;
(4) Cooperate with the responsible public entity in
establishing any interconnection with the qualifying transportation
facility requested by the responsible public entity;
(5) Remain in good standing with the state tax division, the
workers' compensation commission and the bureau of employment
programs; and
(6) Comply with the provisions of the comprehensive agreement
and any service contract.
§17-27-10. Comprehensive agreement.
(a) Prior to acquiring, constructing or improving the
qualifying transportation facility, the developer shall enter into a comprehensive agreement with the chairman and the responsible
public entity. 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 chairman and the responsible public entity;
(2) Review of the final plans and specifications for the
qualifying transportation facility by the committee, by the
responsible public entity and approval by the responsible public
entity if the plans and specifications conform to standard
conditions of the responsible public entity;
(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 responsible public
entity;
(4) Maintenance of a policy or policies of public liability
insurance or self-insurance, in a form and amount satisfactory to
the committee and the responsible 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:
Provided, That in no event shall 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 chairman and the responsible public entity
accompanied by proofs of coverage;
(5) Monitoring of the maintenance and operating practices of the developer by the responsible public entity and the taking of
any actions the responsible public entity finds appropriate to
ensure that the qualifying transportation facility is properly
maintained and operated;
(6) Reimbursement to be paid to the responsible public entity
for services provided by the responsible public entity;
(7) Filing of appropriate financial statements on a periodic
basis;
(8) A reasonable maximum rate of return on investment for the
developer; and
(9) The date of termination of the developer's duties under
this article and dedication to the appropriate public entity.
(b) The comprehensive agreement shall provide for 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. A copy of any service contract
shall be filed with the committee and the responsible public
entity. 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 for 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 responsible public
entity may agree to make grants or loans to 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 responsible public entity determines serve
the public purpose of this chapter. Without limitation, the
comprehensive agreement may contain provisions under which the
responsible public entity 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 responsible public entity 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 provide for 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 established pursuant to
section eighteen-a, article twenty-two, chapter twenty-nine of this
code.
(f) Any changes in the terms of the comprehensive agreement,
agreed upon by the parties, shall be added to the comprehensive
agreement by written amendment.
§17-27-11. Federal, state and local assistance.
The responsible public entity may take any action to obtain
federal, state or local assistance for a qualifying transportation
facility that serves the public purpose of this article and may
enter into any contracts required to receive federal assistance.
The responsible public entity may determine that it serves the
public purpose of this article 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 local,
state or federal government or any agency or instrumentality
thereof.
§17-27-12. Material default; remedies.
(a) Except upon agreement of the developer and any other
parties identified in the comprehensive agreement, a responsible
public entity shall not exercise any of the remedies provided in
this section or elsewhere in this article unless the responsible
public entity first certifies in writing to the committee that a
material default has occurred and is continuing.
(b) Upon written certification by the responsible public entity to the committee that a material default exists, the
responsible public entity may exercise any or all of the following
remedies:
(1) The responsible public entity may elect to take over the
transportation facility or facilities and in that case it shall
succeed to all of the right, title and interest in the
transportation facility or facilities, subject to any liens on
revenues previously granted by the developer to any person
providing financing for the facility or facilities and the
provisions of subsection (c) of this section;
(2) Any responsible public entity having the power of
condemnation under state law may exercise that power of
condemnation to acquire the qualifying transportation facility or
facilities. Any person who has provided financing for the
qualifying transportation facility and the developer, to the extent
of its capital investment, may participate in the condemnation
proceedings with the standing of a property owner;
(3) The responsible public entity may terminate the
comprehensive agreement and exercise any other rights and remedies
that may be available to it at law or in equity, subject only to
the express limitations of the terms of the comprehensive
agreement; and
(4) The responsible public entity may make or cause to be made
any appropriate claims under the performance or payment bonds
required by this article.
(c) In the event the responsible public entity elects to take over a qualifying transportation facility pursuant to subdivision
(1), subsection (b) of this section, the responsible public entity
may acquire, construct or improve the transportation facility,
impose user fees for the use of the transportation facility and
comply with any service contracts as if it were the developer. Any
revenues that are subject to a lien shall be collected for the
benefit of, and paid to, secured parties, as their interests may
appear, to the extent necessary to satisfy the developer's
obligations to secured parties, including the maintenance of
reserves and the liens shall be correspondingly reduced and, when
paid off, released. Remaining revenues, if any, after all payments
to, or for the benefit of, secured parties shall be paid to the
developer, subject to the negotiated maximum rate of return. The
right to receive the payment, if any, shall be considered just
compensation for the transportation facility or facilities. The
full faith and credit of the responsible public entity shall not be
pledged to secure any financing of the developer by the election to
take over the qualifying transportation facility. Assumption of
development of the qualifying transportation facility shall not
obligate the responsible public entity to pay any obligation of the
developer from sources other than revenues.
§17-27-13. No liability.
The full faith and credit of the state, or any county,
municipality or political subdivision of the state shall not be
pledged to secure any financing of the developer in connection with
the acquisition, construction or equipping of a qualifying transportation facility.
§17-27-14. Condemnation.
(a) At the request of the developer, the responsible public
entity may exercise any power of condemnation that it has under law
for the purpose of acquiring any lands or estates or interests in
any lands or estates to the extent that the responsible public
entity finds that the action serves the public purpose of this
article. Any amounts to be paid in any condemnation proceeding
shall be paid by the developer.
(b) Until the responsible public entity has provided written
certification as to the existence of a material default under
subsection (a), section eleven of this article, the power of
condemnation may not be exercised against a qualifying
transportation facility.
§17-27-15. Utility crossings.
The developer and each county, municipality, public service
district, public utility, railroad and cable television provider
whose facilities are to be crossed or affected shall cooperate
fully with the other in planning and arranging the manner of the
crossing or relocation of the facilities. Any entity possessing
the power of condemnation is expressly granted the powers 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 the 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. Any amount to be paid for the crossing,
construction, moving or relocating of facilities shall be paid for
by the developer.
§17-27-16. Dedication of assets.
The responsible public entity shall terminate the developer's
authority and duties under this article on the date set forth in
the comprehensive agreement. Upon termination, the committee and
duties of the developer under this article cease and the qualifying
transportation facility shall be dedicated to the responsible
public entity or, if the qualifying transportation facility was
initially dedicated by an affected local jurisdiction, to the
affected local jurisdiction for public use.
§17-27-17. Purchasing rules.
The provisions of article three, chapter five-a of this code
shall not apply to this article:
Provided, That the provisions of
chapter five-g of this code apply to this article.
§17-27-18. Qualifying transportation facilities as public
improvements.
All qualifying transportation facilities shall be considered
public improvements, and the provisions of article one-c, chapter
twenty-one of this code shall apply, and wages shall be determined
in accordance with section three, article five-a, chapter twenty-
one of this code. Competitive bids shall be solicited through publication of Class II legal advertisement, in compliance with the
provisions of article three, chapter fifty-nine of this code, and
the publication area shall be the county or municipality in which
the transportation facility is to be located. The advertisement
shall also be published as a Class II advertisement in a newspaper
of general circulation published in the city of Charleston. The
advertisement shall solicit sealed proposals for the construction
of the transportation facility, stating the time and place for the
opening bids. All bids shall be publicly opened and read aloud.
Construction contracts shall be awarded to the lowest qualified
responsible bidder who shall furnish a sufficient performance or
payment bond:
Provided, That the private entity has the right to
provisions of article one-c, chapter twenty-one of this code apply
to the construction of all qualifying transportation facilities
approved under this article.
§17-27-19. Exemption from taxation.
The exercise of the powers granted in this article will be in
all respects for the benefit of the people of this state, for the
improvement of their health, safety, convenience and welfare and
for the enhancement of their residential, agricultural,
recreational, economic, commercial and industrial opportunities and
is a public purpose. As the construction, acquisition,
improvement, operation and maintenance of qualifying transportation
facilities will constitute the performance of essential
governmental functions, a developer shall not be required to pay
any taxes or assessments upon any qualifying transportation facility or any property acquired or used by the developer under
the provisions of this article or upon the income therefrom, other
than taxes collected from the consumer pursuant to article fifteen,
chapter eleven of this code.
§17-27-20. Termination date.
No proposal may be submitted by a private entity pursuant to
section five of this article after the first day of July, two
thousand nine.
§17-27-21. Construction.
The provisions of this article are remedial and shall be
liberally construed and applied so as to promote the purposes set
out in section one of this article.
§17-27-22. Severability.
If any section, part or provision of this article or the
application thereof to any person or circumstance is held
unconstitutional or invalid, such unconstitutionality or invalidity
shall not affect any other section, part or provision of this
article or its application and to this end the provisions of this
article are declared to be severable.
NOTE: The purpose of this bill is to establish the Public
Private Transportation Act of 2004.
This article is new; therefore, strike-throughs and
underscoring have been omitted.