Senate Bill No. 652
(By Senators Plymale, Browning, Jenkins and Stollings)
[Introduced February 20, 2012; referred to the Committee on Transportation and Infrastructure; and then to the Committee on Finance.]
A BILL to amend and reenact §17-27-9 of the Code of West Virginia, 1931, as amended, relating to comprehensive agreements for public-private transportation facilities; changing final date that division may enter into comprehensive agreements; and substituting the Secretary of the Department of Transportation for the Legislature as the party authorized to approve comprehensive agreements.
Be it enacted by the Legislature of West Virginia:
That §17-27-9 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 27. PUBLIC-PRIVATE TRANSPORTATION FACILITIES ACT.
§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 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 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 June 30, 2013 2016.
(h) Notwithstanding any provision of this article to the contrary, the division may not enter into any comprehensive agreements with a developer after June 30, 2013.
(i) (h) 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 Secretary of the Department of Transportation.
NOTE: The purpose of this bill is to change the final date that division may enter into comprehensive agreements for public-private transportation facilities and to substitute the Secretary of the Department of Transportation for the Legislature as the party authorized to approve comprehensive agreements.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.