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Developed and maintained by the Division of Legislative Automated Systems.
2005 SESSION
Be it enacted by the General Assembly of Virginia:
1. That §§ 56-557 through 56-561, 56-563 through 56-572, and 56-573.1 of the Code of Virginia are amended and reenacted and that the Code of Virginia is amended by adding sections numbered 56-566.1, 56-566.2, and 56-567.1 as follows:
§ 56-557. Definitions.
As used in this chapter, unless the context requires a different meaning:
"Affected local jurisdiction" means any
county, city or town in which all or a portion of a qualifying transportation
facility is located and any other responsible public entity directly
affected by the qualifying transportation facility.
"Asset management" means a systematic process of operating and maintaining the state system of highways by combining engineering practices and analyses with sound business practices and economic theory to achieve cost-effective outcomes.
"Commission" means the State Corporation Commission.
"Comprehensive agreement" means the comprehensive
agreement between the operator private entity and the responsible
public entity required by § 56-566 of this chapter.
"Develop" or "development" means to plan, design, develop, finance, lease, acquire, install, construct, or expand.
"Interim agreement" means an agreement, including a memorandum of understanding or binding preliminary agreement, between the private entity and the responsible public entity that provides for completion of studies and any other activities to advance the development and/or operation of a qualifying transportation facility.
"Maintenance" means that term as defined in § 33.1-23.02.
"Material default" means any default by the operator
private entity in the performance of its duties under subsection F
E of § 56-565 of this chapter 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 operator
private entity and a reasonable cure period has elapsed.
"Multimodal transportation facility" means a transportation facility consisting of multiple modes of transportation.
"Operator" means the private entity that is
responsible for the acquisition, construction, improvement, maintenance and/or
operation of a qualifying transportation facility.
"Operate" or "operation" means to finance, maintain, improve, equip, modify, repair, or operate.
"Private entity" means any natural person,
corporation, general partnership, limited liability company, limited partnership,
joint venture, business trust, public benefit corporation, non-profit entity
or other private business entity.
"Public entity" means the Commonwealth and any agency or authority thereof, any county, city, or town and any other political subdivision of any of the foregoing, but shall not include any public service company.
"Qualifying transportation facility" means one or
more transportation facilities acquired, constructed, improved, maintained
developed and/or operated by a private entity pursuant to this chapter.
"Responsible public entity" means a public entity,
including local governments and regional authorities, that has the power to
acquire, construct, improve, maintain develop and/or operate the applicable
qualifying transportation facility.
"Revenues" means the all revenues,
including, but not limited to, income, earnings, user fees, lease
payments, allocations, federal, state and local appropriations, bond proceeds,
equity investments, and/or service payments generated by arising
out of or in connection with supporting the development and/or operation
of a qualifying transportation facility, including without limitation,
money received as grants or otherwise from the United States of America, from
any public entity, or from any agency or instrumentality of the foregoing in
aid of such facility.
"Service contract" means a contract entered into
between a public entity and the operator private entity pursuant
to § 56-561 of this chapter.
"Service payments" means payments to the operator
private entity in connection with the development and/or operation of a
qualifying transportation facility pursuant to a service contract.
"State" means the Commonwealth of Virginia.
"Transportation facility" means any road, bridge,
tunnel, overpass, ferry, airport, mass transit facility, vehicle parking
facility, port facility or similar commercial facility used for the
transportation of persons or goods, together with any buildings, structures,
parking areas, appurtenances, and other property that is needed to
operate the transportation such facility.
"User fees" mean the rates, tolls, fees,
or other charges imposed by the operator of a qualifying transportation
facility private entity for use of all or a portion of such
a qualifying transportation facility pursuant to the interim or
comprehensive agreement.
§ 56-558. Policy.
A. The General Assembly finds that:
1. There is a public need for timely acquisition or
construction of and improvements to development and/or operation of transportation
facilities within the Commonwealth that address the needs identified by the
appropriate state, regional, or local transportation plan by improving safety,
reducing congestion, increasing capacity, and/or enhancing economic efficiency are
compatible with state and local transportation plans and that such
public need may not be wholly satisfied by existing methods of procurement in
which qualifying transportation facilities are developed and/or operated;
2. Such public need may not be wholly satisfied by existing
ways in which transportation facilities are acquired, constructed or
improved developed and/or operated; and
3. Authorizing private entities to acquire, construct,
improve, maintain, develop and/or operate one or more transportation
facilities may result in the availability of such transportation facilities to
the public in a more timely, more efficient, or less costly fashion,
thereby serving the public safety and welfare.
B. An action, other than the approval of the responsible
public entity under § 56-560 of this chapter, shall serve the public purpose of
this chapter if such action facilitates the timely development of acquisition
or construction of or improvement to a qualifying transportation facility
or the continued operation of a qualifying transportation facility.
C. It is the intent of this chapter, among other things, to facilitate
to the greatest extent possible, the pooling and funding mechanisms of the
Intermodal Surface Transportation Efficiency Act of 1991, and any successor
legislation, to the end that transportation financing be expanded and
accelerated to improve and add to the convenience of the public, and such that
encourage investment in the Commonwealth by private entities that facilitates
the development and/or operation of transportation facilities. Accordingly,
public and private entities may have the greatest possible flexibility in
contracting with each other for the provision of the public services which are
the subject of this chapter.
D. This chapter shall be liberally construed in conformity with the purposes hereof.
§ 56-559. Prerequisite for operation.
Any private entity seeking authorization under this chapter to
acquire, construct, improve, maintain develop and/or operate a
transportation facility shall first obtain approval of the responsible public
entity under § 56-560. Such private entity may initiate the approval process by
requesting approval pursuant to subsection A of § 56-560 or the responsible
public entity may request proposals pursuant to subsection B of § 56-560.
§ 56-560. Approval by the responsible public entity.
A. The private entity may request approval by the responsible public entity. Any such request shall be accompanied by the following material and information unless waived by the responsible public entity in its guidelines or other instructions given, in writing, to the private entity with respect to the transportation facility or facilities that the private entity proposes to develop and/or operate 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 such 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 proposed date for development and/or operation of
the transportation facility or facilities along with an estimate of the
life-cycle cost of the transportation facility as proposed;
4. A statement setting forth the method by which the
operator private entity proposes to secure all any
property interests required for the transportation facility or facilities.
The statement shall include: (i) the names and addresses, if known, of the
current owners of the property needed for the transportation facility or
facilities, (ii) the nature of the property interests to be acquired, and (iii)
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 developing
and/or operating acquisition or construction of or improvements to
the transportation facility or facilities from local, state, or federal
agencies and a projected schedule for obtaining such permits and approvals;
7. A list of public utility facilities, if any, that will be
crossed by the transportation facility or facilities and a statement of the
plans of the operator private entity to accommodate such
crossings;
8. A statement setting forth the operator's private
entity's general plans for financing and developing and/or operating
the transportation facility or facilities, including identification of any
revenue, public or private, or proposed debt or equity investment proposed by
the private entity;
9. The names and addresses of the persons who may be contacted
for further information concerning the request; and
10. Information on how the private entity's proposal will address the needs identified in the appropriate state, regional, or local transportation plan by improving safety, reducing congestion, increasing capacity, and/or enhancing economic efficiency; and
11. Such additional material and information as the responsible public entity may reasonably request pursuant to its guidelines or other written instructions.
B. The responsible public entity may request proposals from private
entities for the acquisition, construction, improvement development and/or
operation of transportation facilities. The responsible public entity shall not
charge a fee to cover the costs of processing, reviewing, and evaluating
proposals received in response to such requests.
C. The responsible public entity may grant approval of the
acquisition, construction, improvement development and/or operation
of the transportation facility or facilities as a qualifying transportation
facility if the responsible public entity determines that it serves the public
purpose of this chapter. The responsible public entity may determine that the acquisition,
construction, improvement development and/or operation of the
transportation facility or facilities as a qualifying transportation facility
serves such public purpose if:
1. There is a public need for the transportation facility or
facilities of the type the private entity proposes to develop and/or operate
as a qualifying transportation facility;
2. The transportation facility or facilities and the proposed
interconnections with existing transportation facilities, and the operator's
private entity's plans for development and/or operation of the
qualifying transportation facility or facilities, are, in the opinion of the
responsible public entity, reasonable and compatible with the state
transportation plan and with the local comprehensive plan or plans will
address the needs identified in the appropriate state, regional, or local
transportation plan by improving safety, reducing congestion, increasing
capacity, and/or enhancing economic efficiency;
3. The estimated cost of the transportation facility or facilities is reasonable in relation to similar facilities; and
4. The private entity's plans will result in the timely
acquisition or construction development and/or operation of or
improvements to the transportation facility or facilities or their more
efficient operation.
In evaluating any request, the responsible 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.
D. The responsible public entity may charge a reasonable fee to cover the costs of processing, reviewing, and evaluating the request submitted by a private entity pursuant to subsection A, including without limitation, reasonable attorney's fees and fees for financial and other necessary advisors or consultants. The responsible public entity shall also develop guidelines that establish the process for the acceptance and review of a proposal from a private entity pursuant to subsections A and B. Such guidelines shall establish a specific schedule for review of the proposal by the responsible public entity, a process for alteration of that schedule by the responsible public entity if it deems that changes are necessary because of the scope or complexity of proposals it receives, the process for receipt and review of competing proposals, and the type and amount of information that is necessary for adequate review of proposals in each stage of review. For qualifying transportation facilities that have approved or pending state and federal environmental clearances, secured significant right of way, have previously allocated significant state or federal funding, or exhibit other circumstances that could reasonably reduce the amount of time to develop and/or operate the qualifying transportation facility in accordance with the purpose of this act, the guidelines shall provide for a prioritized documentation, review, and selection process.
E. The approval of the responsible public entity shall be subject to the private entity's entering into an interim agreement or a comprehensive agreement with the responsible public entity.
F. In connection with its approval of the development and/or operation of the transportation facility or facilities as a qualifying transportation facility, the responsible public entity shall establish a date for the acquisition of or the beginning of construction of or improvements to the qualifying transportation facility. The responsible public entity may extend such date from time to time.
G. The responsible public entity shall take appropriate action, as more specifically set forth in its guidelines, to protect confidential and proprietary information provided by the private entity pursuant to an agreement under subdivision 11 of § 2.2-3705.6.
H. The responsible public entity may also apply for, execute, and/or endorse applications submitted by private entities to obtain federal credit assistance for qualifying projects developed and/or operated pursuant to this act.
§ 56-561. Service contracts.
In addition to any authority otherwise conferred by law, any
public entity may contract with an operator a private entity for
transportation services to be provided by a qualifying transportation facility
in exchange for such service payments and other consideration as such public
entity may deem appropriate.
§ 56-563. Affected jurisdictions.
A. Any private entity requesting approval from, or
submitting a proposal to, a responsible public entity under § 56-560 shall
notify each affected local jurisdiction by furnishing a copy of its
request or proposal to each affected local jurisdiction.
B. Each affected local jurisdiction that is not a
responsible public entity for the respective qualifying transportation facility
shall, within sixty 60 days after receiving such notice
a request for comments from the responsible public entity, submit any
comments it may have in writing on the proposed qualifying transportation
facility to the responsible public entity and indicating whether the facility is
compatible with the local comprehensive plan will address the needs
identified in the appropriate state, regional, or local transportation plan by
improving safety, reducing congestion, increasing capacity, and/or enhancing
economic efficiency.
§ 56-564. 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 that so
doing will serve the public purpose of this chapter. In connection with such
dedication, a public entity may convey any property interest that it has,
subject to the conditions imposed by general law governing such conveyances,
to the operator private entity, subject to the provisions
of this chapter, for such consideration as such public entity may determine.
The aforementioned consideration may include, without limitation, the agreement
of the operator private entity to operate the qualifying
transportation facility. The property interests that the public entity may
convey to the private entity in connection with a dedication under this section
may include licenses, franchises, easements, or any other right or interest the
public entity deems appropriate.
§ 56-565. Powers and duties of the private entity.
A. The operator private entity shall have all
power allowed by law generally to a private entity having the same form of
organization as the operator private entity and shall have the
power to acquire, construct, improve or develop and/or operate
the qualifying transportation facility and impose user fees and/or enter into
service contracts in connection with the use thereof. No tolls or user fees may
be imposed by the operator on any free road, bridge, tunnel or overpass
unless such road, interstate highway, bridge, tunnel or overpass is
reconstructed to provide for increased capacity private entity without
the necessary federal, state and/or local approvals.
B. The operator private entity may own, lease or
acquire any other right to use or develop and/or operate the qualifying
transportation facility.
C. Any financing of the qualifying transportation facility
may be in such amounts and upon such terms and conditions as may be determined
by the operator. Without limiting the generality of the foregoing, the operator
may issue debt, equity or other securities or obligations, enter into sale and
leaseback transactions and secure any financing with a pledge of, security
interest in, or lien on, any or all of its property, including all of its
property interests in the qualifying transportation facility.
D C. Subject to applicable permit requirements,
the operator private entity shall have the authority to cross any
canal or navigable watercourse so long as the crossing does not unreasonably
interfere with then current navigation and use of the waterway.
E D. In operating the qualifying transportation
facility, the operator private entity 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.
F E. The operator private entity shall:
1. Acquire, construct, improve, maintain Develop
and/or operate the qualifying transportation facility in a manner that meets
the engineering standards of the responsible public entity for
transportation facilities operated and maintained by such responsible public
entity, all in accordance with the provisions of the interim agreement or
the comprehensive agreement;
2. Keep the qualifying transportation facility open for use by
the members of the public at all times in accordance with the terms
and conditions of the interim or comprehensive agreement after its initial
opening upon payment of the applicable user fees, except when exempted by §
33.1-252, and/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. Maintain, or provide by contract for the maintenance of, the qualifying transportation facility;
4. Cooperate with the responsible public entity in establishing any interconnection with the qualifying transportation facility requested by the responsible public entity; and
5. Comply with the provisions of the interim or comprehensive agreement and any service contract.
§ 56-566. Comprehensive agreement.
A. Prior to acquiring, constructing, improving,
maintaining, developing and/or operating the qualifying
transportation facility, the operator private entity shall enter
into a comprehensive agreement with the responsible public entity. The
comprehensive agreement shall, as appropriate, provide for:
1. Delivery of performance and payment bonds in connection
with the construction of or improvements to development and/or
operation of the qualifying transportation facility, in the forms and
amounts satisfactory to the responsible public entity;
2. Review of plans and specifications for the development
and/or operation of the qualifying transportation facility by the
responsible public entity and approval by the responsible public entity if the
plans and specifications conform to standard conditions of standards
acceptable to the responsible public entity;
3. Inspection of construction of or improvements to the
qualifying transportation facility by the responsible public entity 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 (copies of which shall be filed with the responsible public entity
accompanied by proofs of coverage), or self-insurance, each in
form and amount satisfactory to 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;
5. Monitoring of the maintenance practices of the operator private
entity by the responsible public entity and the taking of such actions as
the responsible public entity finds appropriate to ensure that the qualifying
transportation facility is properly maintained;
6. Reimbursement to be paid to the responsible public entity for services provided by the responsible public entity;
7. Filing of appropriate financial statements in a form acceptable to the responsible public entity on a periodic basis;
8. Compensation to the private entity which may include a
reasonable development fee, a reasonable maximum rate of return on
investment, and/or reimbursement of development expenses in the event of
termination for convenience by the operator responsible
public entity as agreed upon between the responsible public entity and the
private entity; and
9. The date of termination of the operator's private
entity's authority and duties under this chapter and dedication to the
appropriate public entity; and
10. Guaranteed cost and completion guarantees related to the development and/or operation of the qualified transportation facility and payment of damages for failure to meet the completion guarantee.
B. The comprehensive agreement shall provide for such
user fees as may be established from time to time by agreement of the parties.
Any user fees shall be set at a level that, taking takes into
account any lease payments, service payments, and compensation to allows
the operator the private entity or as the rate of return on
investment specified in the comprehensive agreement. A copy of any service
contract shall be filed with the responsible public entity. A schedule of the
current user fees shall be made available by the operator private
entity 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
materially discourage use of the qualifying transportation facility
except as required by agreement between the parties to preserve capacity and
prevent congestion on the qualifying transportation facility. The execution
of the comprehensive agreement or any amendment thereto shall constitute
conclusive evidence that the user fees provided for therein comply with this
chapter. 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 operator for the
development and/or operation of the qualifying transportation facility from
time to time from amounts received from the federal government or any agency or
instrumentality thereof.
D. The comprehensive agreement shall incorporate the duties of
the operator private entity under this chapter and may contain
such 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
operator private entity and the persons specified therein as
providing financing for the qualifying transportation facility. The
comprehensive agreement may contain such other lawful terms and conditions to
which the operator private entity 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
operator to acquire, construct, improve, maintain and/or operate for the
development and/or operation of one or more qualifying transportation
facilities.
E. 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. Without limitation, excess earnings
may be distributed to the Commonwealth's transportation trust fund, to the
responsible public entity, or to the operator private entity for
debt reduction or they may be shared with affected local jurisdictions appropriate
public entities.
F. Any changes in the terms of the comprehensive agreement, as may be agreed upon by the parties from time to time, shall be added to the comprehensive agreement by written amendment.
G. Notwithstanding any contrary provision of this chapter, a responsible public entity may enter into a comprehensive agreement with multiple private entities if the responsible public entity determines in writing that it is in the public interest to do so.
H. The comprehensive agreement may provide for the development and/or operation of phases or segments of the qualifying transportation facility.
§ 56-566.1. Interim agreement.
A. Prior to or in connection with the negotiation of the comprehensive agreement, the responsible public entity may enter into an interim agreement with the private entity proposing the development and/or operation of the facility or facilities. Such interim agreement may (i) permit 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 facility or facilities; (ii) establish the process and timing of the negotiation of the comprehensive agreement; and (iii) contain any other provisions related to any aspect of the development and/or operation of a qualifying transportation facility that the parties may deem appropriate.
B. Notwithstanding anything to the contrary in this chapter, a responsible public entity may enter in to an interim agreement with multiple private entities if the responsible public entity determines in writing that it is in the public interest to do so.
§ 56-566.2. Multiple public entities.
A. If a private entity submits a proposal pursuant to subsection A of § 56-560 to develop and/or operate a qualifying transportation facility or a multimodal transportation facility that may require approval by more than one public entity, representatives of each of the affected public entities shall, prior to acceptance of such proposal, convene and determine which public entity shall serve as the coordinating responsible public entity. Such determination shall occur within 60 days of the receipt of a proposal by the respective public entities.
B. If public entities request proposals from private entities for the development and/or operation of a qualifying transportation facility or a multimodal transportation facility pursuant to subsection B of § 56-560, the determination of which public entity shall serve as the coordinating responsible public entity shall be made prior to any request for proposals.
C. Once a determination has been made in accordance with subsections A or B, the coordinating responsible public entity and the private entity shall proceed in accordance with this chapter.
§ 56-567. Federal, state and local assistance.
A. 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 chapter and may enter into any contracts required to receive such federal assistance. If the responsible public entity is a state agency, any funds received from the state or federal government or any agency or instrumentality thereof shall be subject to appropriation by the General Assembly. The responsible public entity may determine that it serves the public purpose of this chapter 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.
B. The responsible public entity may agree to make grants or loans for the development and/or operation of the qualifying transportation facility from time to time from amounts received from the federal, state, or local government, or any agency or instrumentality thereof.
C. Nothing in this chapter or in an interim or comprehensive agreement entered into pursuant to this chapter shall be deemed to enlarge, diminish or affect the authority, if any, otherwise possessed by the responsible public entity to take action that would impact the debt capacity of the Commonwealth or the affected jurisdictions.
§ 56-567.1. Financing.
Any financing of a qualifying transportation facility may be in such amounts and upon such terms and conditions as may be determined by the parties to the interim or comprehensive agreement. Without limiting the generality of the foregoing, the private entity and the responsible public entity may propose to utilize any and all revenues that may be available to them and may, to the fullest extent permitted by applicable law, 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 state infrastructure bank 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.
§ 56-568. Material default; remedies.
A. Except upon agreement of the operator and any other
parties identified in the comprehensive agreement, no responsible public entity
shall exercise any of the remedies provided in this section or in subsection B
or C of § 56-569 unless the Commission, after notice to the operator and the
secured parties (as may appear in the operator's records) and an opportunity
for hearing, shall first issue a declaratory judgment that a material default,
as defined in § 56-557, has occurred and is continuing.
B. Upon entry by the Commission of a declaratory judgment
order pursuant to subsection A above, unless such order is stayed pending
appeal to the Virginia Supreme Court Upon the occurrence and
during the continuation of material default, 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 such case it shall succeed to all
of the right, title and interest in such transportation facility or facilities,
subject to any liens on revenues previously granted by the operator
private entity to any person providing financing therefor and the
provisions of subsection C below.
2. Any responsible public entity having the power of
condemnation under state law may exercise such power of condemnation to acquire
the qualifying transportation facility or facilities. Nothing in this chapter
shall be construed to limit the exercise of the power of condemnation by any
responsible public entity against a qualifying transportation facility after
the entry by the Commission of a final declaratory judgment order pursuant to
subsection A above. Any person that has provided financing for the qualifying
transportation facility, and the operator, 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 interim
or comprehensive agreement and exercise any other rights and remedies which
may be available to it at law or in equity.
4. 3. The responsible public entity may make or
cause to be made any appropriate claims under the performance and/or payment
bonds required by subsection A 1 of § 56-566.
C. B. In the event the responsible public entity
elects to take over a qualifying transportation facility pursuant to subsection
B 1 of this section A, the responsible public entity may
shall acquire, construct, improve, develop and/or operate and
maintain the transportation facility, impose user fees for the use thereof
and comply with any service contracts as if it were the operator
private entity. 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 operator's private
entity's obligations to secured parties, including the maintenance of
reserves and such 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 may use revenues to pay current operation and
maintenance costs of the transportation facility or facilities, including
compensation to the responsible public entity for its services in operating and
maintaining the qualifying transportation facility. Remaining revenues, if any,
after all payments for operation and maintenance of the transportation facility
or facilities, and to, or for the benefit of, secured parties, have been made,
shall be paid to the operator private entity, subject to the
negotiated maximum rate of return. The right to receive such 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 operator 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 to pay any obligation of the operator
private entity from sources other than revenues.
§ 56-569. Condemnation.
A. At the request of the operator private entity,
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
therein to the extent that the responsible public entity finds that such action
serves the public purpose of this chapter. Any amounts to be paid in any such
condemnation proceeding shall be paid by the operator private entity.
B. Except as provided in subsection A of this section,
until the Commission, 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 entered a final declaratory judgment order under subsection
A of § 56-568 that a material default has occurred and is continuing,
the power of condemnation may not be exercised against a qualifying
transportation facility.
C. After the entry of such final order by the Commission, any
responsible public entity having the power of condemnation under state law
may exercise such power of condemnation as provided in subsection B 2 of §
56-568 in lieu of, or at any time after taking over the transportation
facility pursuant to subsection B 1 subdivision A 1 of § 56-568,
to acquire the qualifying transportation facility or facilities. Nothing in
this chapter shall be construed to limit the exercise of the power of
condemnation by any responsible public entity against a qualifying
transportation facility after the entry by the Commission of a final
declaratory judgment order 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
condemnation proceedings with the standing of a property owner.
§ 56-570. Utility crossings.
The operator private entity and each public
service company, 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 such entity possessing the power of condemnation is hereby
expressly granted such 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 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. Any amount to be paid for such crossing,
construction, moving or relocating of facilities shall be paid for by the
operator. Should the operator private entity and any such
public service company, public utility, railroad, and cable television provider
not be able to agree upon a plan for the crossing or relocation, the Commission
may determine the manner in which the crossing or relocation is to be
accomplished and any damages due arising out of the crossing or relocation. The
Commission may employ expert engineers who shall examine the location and plans
for such crossing or relocation, hear any objections and consider
modifications, and make a recommendation to the Commission. In such a case, the
cost of the experts is to be borne by the operator. private entity.
Any amount to be paid for such crossing, construction, moving or relocating of
facilities shall be paid for by the private entity or any other person
contractually responsible therefor under the interim or comprehensive agreement
or under 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 utilities subject to the
Commission's jurisdiction.
§ 56-571. Police powers; violations of law.
A. All police officers of the Commonwealth and of each
affected local jurisdiction, shall have the same powers and jurisdiction within
the limits of such qualifying transportation facility as they have in their
respective areas of jurisdiction and such police officers shall have access to
the qualifying transportation facility at any time for the purpose of
exercising such powers and jurisdiction. This authority does not extend to the
private offices, buildings, garages, and other improvements of the
operator private entity to any greater degree than the police power
extends to any other private buildings and improvements.
B. To the extent the transportation facility is a road, bridge, tunnel, overpass, or similar transportation facility for motor vehicles, the traffic and motor vehicle laws of the Commonwealth or, if applicable, any local jurisdiction shall be the same as those applying to conduct on similar transportation facilities in the Commonwealth or such local jurisdiction. Punishment for offenses shall be as prescribed by law for conduct occurring on similar transportation facilities in the Commonwealth or such local jurisdiction.
§ 56-572. Dedication of assets.
The responsible public entity shall terminate the
operator's private entity's authority and duties under this chapter
on the date set forth in the interim or comprehensive agreement. Upon
termination, the authority and duties of the operator private entity
under this chapter shall 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 such affected local jurisdiction for public use.
§ 56-573.1. Procurement.
The Virginia Public Procurement Act (§ 2.2-4300 et seq.) shall
not apply to this chapter; however, a responsible public entity may enter into an
interim or a comprehensive agreement only in accordance with procedures
guidelines adopted by it as follows:
1. A responsible public entity may enter into an interim or
a comprehensive agreement in accordance with procedures
guidelines adopted by it that are consistent with procurement through
"competitive sealed bidding" as defined in § 2.2-4301 and subsection
B of § 2.2-4310.
2. A responsible public entity may enter into an interim or
a comprehensive agreement in accordance with procedures
guidelines adopted by it that are consistent with the procurement of
"other than professional services" through competitive negotiation as
defined in § 2.2-4301 and subsection B of § 2.2-4310. Such responsible public
entity shall not be required to select the proposal with the lowest price
offer, but may consider price as one factor in evaluating the proposals received.
Other factors that may be considered include (i) the proposed cost of the
qualifying transportation facility; (ii) the general reputation,
qualifications, industry experience, and financial capacity of the private
entity; (iii) the proposed design, operation, and feasibility of the qualifying
transportation facility; (iv) the eligibility of the facility for priority
selection, review, and documentation timelines under the responsible public
entity's guidelines; (v) local citizen and public entity comments; (vi)
benefits to the public; (vii) the private entity's compliance with a minority
business enterprise participation plan or good faith effort to comply with the
goals of such plan; (viii) the private entity's plans to employ local
contractors and residents; (ix) the safety record of the private entity; (x)
the ability of the facility to address the needs identified in the appropriate
state, regional or local transportation plan by improving safety, reducing
congestion, increasing capacity, and/or enhancing economic efficiency; and (xi)
other criteria that the responsible public entity deems appropriate.
A responsible public entity shall proceed in accordance with
the procedures guidelines adopted by it pursuant to
subdivision 1 unless it determines that proceeding in accordance with the procedures
guidelines adopted by it pursuant to this subdivision is likely to be
advantageous to the responsible public entity and the public, based on (i) the
probable scope, complexity, or urgency of a project; or (ii) risk
sharing including guaranteed cost or completion guarantees, added value,
or debt or equity investments proposed by the private entity; or (iii) an
increase in funding, dedicated revenue source or other economic
benefit from the project that would not otherwise be available. When the
responsible public entity determines to proceed according to the procedures
guidelines adopted by it pursuant to this subdivision, it shall state
the reasons for its determination in writing. If a state agency is the responsible
public entity, the approval of the Secretary of Transportation shall be
required as more specifically set forth in the guidelines before the
comprehensive agreement is signed.
3. Interim or comprehensive agreements for maintenance
or asset management services for a transportation facility that is a highway,
bridge, tunnel or overpass, and any amendment or change order thereto that
increases the highway lane-miles receiving services under such an agreement
shall be procured in accordance with procedures guidelines that
are consistent with procurement through "competitive sealed bidding"
as defined in § 2.2-4301 and subsection B of § 2.2-4310. Furthermore, such
contracts shall be of a size and scope to encourage maximum competition and
participation by agency prequalified contractors and otherwise qualified
contractors.
4. The provisions of subdivision 3 shall not apply to maintenance or asset management services agreed to as part of the initial provisions of any interim or comprehensive agreement entered into for the original construction, reconstruction, or improvement of any highway pursuant to Chapter 22 (§ 56-556 et seq.) of Title 56.
5. Once a comprehensive agreement has been entered into, and the process of bargaining of all phases or aspects of the comprehensive agreement is complete, a responsible public entity shall make available, upon request, procurement records in accordance with § 2.2-4342.
6. Nothing in this section shall require that professional services be procured by any method other than competitive negotiation in accordance with the Virginia Public Procurement Act (§ 2.2-4300 et seq.).
2. That the Secretary of Transportation shall, no later than October 31, 2005, make revisions to the existing state guidelines to conform to the provisions of this act. Such guidelines shall apply to all agencies for which the Secretary is responsible when such agencies are responsible public entities under this act. In making his recommended changes, the Secretary shall consult with public and private entities and with the Chairmen of the Senate and House Transportation Committees. It is the intent of the General Assembly that such guidelines shall provide appropriate opportunities for public comment and facilitate the review of proposals to develop and/or operate qualifying transportation facilities in a timely manner and through innovative methods.
3. That the provisions of this act shall apply, upon agreement of the parties to an interim or comprehensive agreement, to existing qualifying transportation facilities for which, prior to January 1, 2005, a private entity has not entered into a comprehensive agreement, and to prospective qualifying transportation facilities.