SB529 SUB1

COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 529
(By Senators Tomblin, Mr. President, and McCabe, Anderson, Bailey, Boley, Bowman, Burnette, Caldwell, Chafin, Craigo, Deem, Edgell, Facemyer, Fanning, Helmick, Hunter, Jackson, Kessler, Love, McKenzie, Minard, Minear, Mitchell, Oliverio, Plymale, Prezioso, Redd, Ross, Rowe, Sharpe, Snyder, Sprouse, Unger and Wooton)
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[Originating in the Committee on Transportation;
reported February 26, 2002.]

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A BILL to amend chapter seventeen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article two-d, relating to establishment of the public-private transportation act of two thousand two; setting forth legislative findings and purposes; setting forth definitions; providing prerequisites for development of a transportation facility; providing for the creation of a public and private transportation facility and its membership; setting forth the powers of the committee; providing for the submission of proposals and for 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; addressing dedication of assets; providing for an exemption from purchasing rules; addressing severability; qualifying transportation facilities as public improvements; setting forth a termination date; and addressing construction.

Be it enacted by the Legislature of West Virginia:

That chapter seventeen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article two-d, to read as follows:
ARTICLE 2D. PUBLIC-PRIVATE TRANSPORTATION ACT OF 2002.
§17-2D-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 such 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 such transportation facilities to the public in a more timely or less costly fashion, thereby serving the public safety and welfare;

(4) That providing a mechanism for the receipt and consideration of proposals submitted by private entities for the aforesaid purposes shall serve the public purpose of this article to the extent 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 utilizing innovative financing mechanisms and the pooling and funding mechanisms of the transportation equity act for the twenty-first century (TEA-21), and any successor legislation, 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.
§17-2D-2. Definitions.

As used in this article, the following words and terms shall have the following meanings, unless the context shall indicate another or different meaning or intent:

"Commissioner" means the commissioner of the West Virginia division of highways.

"Committee" means the public/private transportation oversight committee established pursuant to section four of this article.

"Comprehensive agreement" means the comprehensive agreement by and between the developer, the committee and the responsible public entity required by section ten of this article.

"Developer" means the private entity that is responsible for the acquisition, construction or improvement of a qualifying transportation facility.

"Material default" means any default by the developer in the performance of its duties under subsection (f), section nine 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.

"Private entity" means any natural person, corporation, limited liability company, partnership, joint venture or other private business entity.

"Public entity" means the state and any agency or authority thereof, any county, municipality and any other political subdivision of any of the foregoing.

"Qualifying transportation facility" means one or more transportation facilities acquired, constructed or improved by a private entity pursuant to this article.

"Responsible public entity" means a public entity that has the power to acquire, construct or improve the applicable transportation facility.

"Revenues" means the user fees or service payments generated by a qualifying transportation facility.

"Service contract" means a contract entered into between a public entity and the developer pursuant to section seven of this article.

"Service payments" means payments to the developer of a qualifying transportation facility pursuant to a service contract.

"State" means the state of West Virginia.

"Transportation facility" means any road, bridge, tunnel, overpass, or similar commercial facility used for the transportation of persons or goods, together with any other property that is needed to operate the transportation facility.

"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 such qualifying transportation facility pursuant to the comprehensive agreement.
§17-2D-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 six of this article. Such private entity shall initiate the approval process pursuant to subsections (a) and (b), section six of this article or the committee may alternatively request proposals pursuant to subsection (c), section six of this article.

§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, 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, and eight persons appointed by the governor from the private sector, by and with the advice and consent of the Senate; two registered professional engineers; two of whom are owners or officers of construction businesses; two of whom are representative of the interests of labor; and two of whom shall have recognized ability in infrastructure development.

(b) The committee shall annually elect one of their 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 appointed from the private sector shall each serve for a term of four years and shall otherwise serve until their respective successors are appointed.

(d) Members of the committee shall not be 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.

(e) Six members of the committee shall constitute a quorum and the affirmative vote of a majority of members pursuant at the meeting shall be necessary and sufficient for any action of the committee, except the affirmative vote of at least six members of the committee shall be required to approve any proposal for a qualifying transportation facility at the conceptual planning level and the affirmative vote of at least eight members of the committee shall be required to approve any proposal for a qualifying transportation facility at the detailed planning stage: Provided That a project is then presented to the joint committee on government and finance for review and approval.

(f) The committee shall, prior to the first day of August, two thousand two, propose emergency legislative rules pursuant to the provisions of article three, chapter twenty-nine-a of this code, to implement and make effective its powers and duties.

§17-2D-5. Powers of the committee.
In addition to the powers set forth elsewhere in this article, the committee shall have the following powers:

(1) The committee shall 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 such level by the commissioner. At each level of review, the committee shall take into account at all times the needs of the state as a whole in terms of transportation;

(2) The committee shall coordinate with the West Virginia department of transportation, the division of highways and the parkways, economic development and tourism authority or other parkways authority, established pursuant to article sixteen-a, chapter seventeen of this code, in the exercise of its powers and duties hereunder and development of qualifying transportation facilities within the state;

(3) The committee shall be body corporate, including the power to sue and be sued, to make contracts, and to adopt and use a common seal and to alter the same as may be deemed expedient;

(4) To enter into agreements, contracts or other transactions with any federal, state, county, municipal agency or private entity;

(5) To 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;

(6) The committee is hereby designated and empowered to act on behalf of the state and to 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 the committee considers appropriate to effectuate the duties of the committee; and

(7) To do any and all things necessary to carry out and accomplish the purposes of this article.
§17-2D-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 committee 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:

A statement of qualifications and experience;

A description of the proposed transportation facility;

A description of the financing for the transportation facility; and

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 such 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 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;

(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:

(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 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 developer to accommodate such crossings;

(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, organizational chart of the developer, capitalization of the developer, experience in the operation of transportation facilities and references; and

(11)

Such additional material and information as the committee may reasonably request.

(c) The committee may request proposals from private entities for the acquisition, construction or improvement of transportation facilities in such form and with such content as the committee shall determine.

(d) 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 such 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 the competitive bidding process, averaged over the three immediately succeeding fiscal years: Provided, That there may not be taken into account in calculating the amount dedicated as set forth above, and there shall be available for dedication to the acquisition, construction or improvement of transportation facilities, any additional amounts specifically appropriated from state general revenue funds and/or any federal funds for a transportation facility to be acquired, constructed or equipped pursuant to this article;

(5) The use of state or federal funds in connection with the financing of a qualifying transportation facility has been deemed by the commissioner to be compatible with the state transportation plan and with local comprehensive plan or plans;

(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;

(e) In evaluating any request, the committee may rely upon reports prepared by personnel familiar with the development of similar facilities or the advice of outside advisors or consultants having relevant experience, including, but not limited to, staff and representatives of the department of transportation.

(f) The committee may charge a reasonable fee to cover the costs of processing, reviewing and evaluating the request.

(g) Notwithstanding anything in this article to the contrary, the approval of the committee shall be subject to the private entity's entering into a comprehensive agreement with the committee and the responsible public entity.

(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 such date from time to time.
§17-2D-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 such service payments and other consideration as such public entity may deem appropriate.
§17-2D-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 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, to the developer, 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 developer to develop the qualifying transportation facility.
§17-2D-9. Powers and duties of the developer.

(a) The developer shall have all power allowed by law generally to a private entity having the same form of organization as the developer and shall have the power to acquire, construct or improve the qualifying transportation facility and impose user fees in connection with the use thereof. 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 road, bridge, tunnel or overpass unless such 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 such amounts and upon terms and conditions as may be determined by the developer. 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) Subject to applicable permit requirements, the developer 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) 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. Without limiting the generality of the foregoing, 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:

(i) the responsible public entity for transportation facilities operated and maintained by such responsible public entity, in accordance with the provisions of the comprehensive agreement , and

(ii) 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 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 and/or operate, or provide by contract for the maintenance and/or operation 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 comprehensive agreement and any service contract.
§17-2D-10. Comprehensive agreement.

(a) Prior to acquiring, constructing or improving the qualifying transportation facility, the developer shall enter into a comprehensive agreement with the committee and the responsible public entity. The comprehensive agreement may provide for:

(1) Delivery of performance and/or payment bonds in connection with the construction of or improvements to the qualifying transportation facility, in the forms and amounts satisfactory to the committee and the responsible public entity;

(2) Review of final plans and specifications for the qualifying transportation facility by the committee, by the division of highways and by the responsible public entity and approval by the responsible public entity if the plans and specifications conform to standard conditions of the division of highways and the responsible public entity;

(3) Inspection of construction of or improvements to the qualifying transportation facility to ensure that they conform to the engineering standards acceptable to the division of highways and the responsible public entity;

(4) Maintenance of a policy or policies of public liability insurance (copies of which shall be filed with the committee and the responsible public entity accompanied by proofs of coverage), self-insurance, in form and amount satisfactory to the committee, the division of highways 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 such insurance impose any pecuniary liability on the state, its agencies or any political subdivision of the state;

(5) Monitoring of the maintenance and operating practices of the developer 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 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 authority and duties under this article and dedication to the appropriate public entity.

(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 into account any service payments, allows the developer the rate of return on 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 thereto shall constitute conclusive evidence that the user fees provided for therein 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 thereof.

(d) The comprehensive agreement shall incorporate the duties of the developer under this article 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 developer 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 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 may 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 responsible public entity, to affected public entities, to the developer or they may be shared.

(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.
§17-2D-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 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 Legislature. 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.
§17-2D-12. Material default; remedies.

(a) Except upon agreement of the developer and any other parties identified in the comprehensive agreement, no responsible public entity shall exercise any of the remedies provided in this section or elsewhere in this article unless the responsible public entity shall first certify 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 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 developer 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. 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 and/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 shall acquire, construct or improve the transportation facility, impose user fees for the use thereof 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 such 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 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 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.
§17-2D-13. No liability.

The full faith and credit of the state, or any county, municipality or political subdivision thereof shall not be pledged to secure any financing of the developer in connection with the acquisition, construction or equipping of a qualifying transportation facility.
§17-2D-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 therein to the extent that the responsible public entity finds that such action serves the public purpose of this article. Any amounts to be paid in any such 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 twelve of this article, the power of condemnation may not be exercised against a qualifying transportation facility.
§17-2D-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 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 developer.
§17-2D-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 authority and duties of the developer under this article 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.
§17-2D-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 shall apply to this article.
§17-2D-18. Severability.
If any section, subsection, subdivision, subparagraph, sentence or clause of this article is adjudged to be unconstitutional or invalid, such adjudication shall not affect the validity of the remaining portions of this article and, to this end, the provisions of this article are hereby declared to be severable.
§17-2D-19. Qualifying transportation facilities as public improvements.

For the purpose of establishing wages for the construction of any qualifying transportation facility authorized under this article, all qualifying transportation facilities shall be considered public improvements and wages shall be determined in accordance with section three, article five-a, chapter twenty-one of this code. Competitive bids shall be solicited by the private entity for each construction contract in excess of fifty thousand dollars in total cost. Competitive bids shall be solicited through publication of a 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. Such advertisement shall solicit sealed proposals for the construction of the transportation facility, stating the time and place for the opening of bids. All bids shall be publicly opened and read aloud. Construction contracts shall be of sufficient size that performance or payment bonds are in the five million dollar to twenty million dollar range, if possible, and
shall be awarded to the lowest qualified responsible bidder, who shall furnish a sufficient performance or payment bond: Provided, That the private entity shall have the right to reject all bids and solicit new bids for the construction contract. The provisions of article one-c, chapter twenty-one of this code shall apply to the construction of all qualifying transportation facilities approved under this article.
§17-2D-20. Termination date.

No proposal may be submitted by a private entity pursuant to section six of this article after the first day of July, two thousand six.
§17-2D-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.

NOTE: The purpose of this bill is to provide for the establishment of a mechanism to permit private entities to submit solicited and unsolicited proposals for the acquisition, construction and equipping of qualifying transportation facilities. The commissioner of the division of highways and a public/private transportation oversight committee will be responsible for consideration and review of solicited and unsolicited proposals submitted by private entities for such purpose. Comprehensive agreements between the committee, the private entity and the responsible public entity will set forth the rights and obligations of the parties.

This article is new; therefore, strike-throughs and underscoring have been omitted.