HB4476 HR&T AM 2-15
Subcommittee A of the Committee on Roads and Transportation
moves to amend the bill on page one, after the enacting clause,
line 16, by striking the remainder of the bill and inserting in
lieu thereof the following:
"That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §17-27-1, §17-27-2,
§17-27-3, §17-27-4, §17-27-5, §17-27-6, §17-27-7, §17-27-8,
§17-27-9, §17-27-10, §17-27-11, §17-27-12, §17-27-13, §17-27-14,
§17-27-15, §17-27-16, §17-27-17, and §17-27-18, all to read as
ARTICLE 27. PUBLIC-PRIVATE TRANSPORTATION FACILITIES ACT.
§17-27-1. Legislative findings and purposes.
The Legislature finds and declares:
(1) That there is a public need for timely acquisition or
construction of and improvements to transportation facilities
within the state that are compatible with state and local
(2) That public need may not be wholly satisfied by existing
ways in which transportation facilities are acquired, constructed
(3) That authorizing private entities to acquire, construct or
improve one or more transportation facilities may result in the
availability of transportation facilities to the public in a more timely or less costly manner, thereby serving the public health,
safety, convenience and welfare and the enhancement of the
residential, agricultural, recreational, economic, commercial and
(4) That providing a mechanism for the receipt and
consideration of proposals submitted by private entities for the
purposes described in this section serves the public purpose of
this article to the extent that such action facilitates the timely
acquisition or construction of or improvement to a qualifying
transportation facility or the continued operation of a qualifying
transportation facility; and
(5) That providing for the expansion and acceleration of
transportation financing using innovative financing mechanisms,
including, but not limited to, design-build contracting and
financing arrangements, 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.
As used in this article, the following words and terms have
the following meanings:
(1) "Comprehensive agreement" means the comprehensive
agreement by and between a developer and the division required by
section ten of this article.
(2) "Developer" means the private entity that is responsible
for the acquisition, construction or improvement of a qualifying
(3) "Division" means the Division of Highways.
(4) "Material default" means any default by the developer in
the performance of its duties under subsection (f), section eight
of this article that jeopardizes adequate service to the public
from a qualifying transportation facility and remains unremedied
after the division has provided notice to the developer and a
reasonable cure period has elapsed.
(5) "Private entity" means any natural person, corporation,
limited liability company, partnership, joint venture or other
private business entity.
(6) "Public entity" means the state of West Virginia or any
political subdivision of the state;
(7) "Qualifying transportation facility" means one or more
transportation facilities acquired, constructed or improved by a
private entity pursuant to this article
.(8) "Revenues" mean the user fees or service payments
generated by a qualifying transportation facility.
(9) "Service contract" means a contract entered into between
a public entity and a developer pursuant to section six of this
(10) "Service payments" mean payments to the developer of a qualifying transportation facility pursuant to a service contract.
(11) "State" means the State of West Virginia.
(12) "Transportation facility" means any public inland
waterway port facility, road, bridge, tunnel, overpass or existing
airport used for the transportation of persons or goods, and such
structures, equipment, facilities or improvements as are necessary
or incident thereto.
(13) "User fees" mean the rates, tolls, fees or other charges
imposed by the developer of a qualifying transportation facility
for use of all or a portion of the qualifying transportation
facility pursuant to the comprehensive agreement.
§17-27-3. Prerequisites for development.
Any private entity seeking authorization under this article to
acquire, construct or improve a transportation facility shall first
submit a conceptual proposal as set forth in section five of this
article : Provided, That notwithstanding any provision of this code
to the contrary, the division has no duty to accept, consider or
review a conceptual proposal that is not solicited by the division.
The private entity may initiate the approval process pursuant to
subsections (a) and (b) of said section or the
division may alternatively request proposals pursuant to subsection
(c) of said section .
§17-27-4. Powers and duties of the division.
In addition to the powers and duties set forth elsewhere in this code, the division may:
(1) Undertake one level of review for each proposal submitted
by a private entity in accordance with this article. The review
shall consist of the review by the division of the conceptual
proposal: Provided, That expenses of the division incurred for
review of proposal shall be paid by the private entity submitting
the proposal. The division shall take into account at all times
the needs and funding capabilities of the state as a whole in terms
(2) Enter into agreements, contracts or other transactions
with any federal, state, county, municipal agency or private
(3) Act on behalf of the state and represent the state in the
planning, financing, development and construction of any
transportation facility for which solicited proposals have been
received in accordance with the provisions of this article, with
the concurrence of the affected public entity. Other public
entities in this state shall cooperate to the fullest extent with
what the division considers appropriate to effectuate the duties of
(4) Exempt from disclosure any sensitive business, commercial
or financial information that is not customarily provided to
business competitors that is submitted to the division for final
review and approval;
(5) Exempt from disclosure any documents, communications or
information described in this section including, but not limited
to, the project's design, management, financing and other details
in accordance with the provisions of article one, chapter
twenty-nine-b of this code; and
(6) Do any and all things necessary to carry out and
accomplish the purposes of this article.
§17-27-5. Submission and review of conceptual proposals; approval
by the Commissioner of Highways.
(a) A private entity may submit a solicited conceptual
proposal for a transportation facility in writing to the division
for consideration. The conceptual proposal shall include the
(1) A statement of the entity's qualifications and experience;
(2) A description of the proposed transportation facility;
(3) A description of the financing for the transportation
(4) A statement setting forth the degree of public support for
the proposed transportation facility, including a statement of the
benefits of the proposed transportation facility to the public and
its compatibility with existing transportation facilities.
(b) Following review by the division, the division shall
submit to the Commissioner of Highways the conceptual proposals and
priority ranking for review for final selection.
(c) The conceptual proposal shall be accompanied by the
following material and information unless waived by the division
with respect to the transportation facility or facilities that the
private entity proposes to develop as a qualifying transportation
(1) A topographic map (1:2,000 or other appropriate scale)
indicating the location of the transportation facility or
(2) A description of the transportation facility or
facilities, including the conceptual design of the facility or
facilities and all proposed interconnections with other
(3) The projected total life-cycle cost of the transportation
facility or facilities and the proposed date for acquisition of or
the beginning of construction of, or improvements to, the
transportation facility or facilities;
(4) A statement setting forth the method by which the
developer proposes to secure all property interests required for
the transportation facility or facilities: Provided, That with the
approval of the division, the private entity may request that the
comprehensive agreement assign the division with responsibility for
securing all property interests, including public utility
facilities, with all costs, including the cost of acquisition of
the property to be reimbursed by the private entity to the division . The statement shall include:
(A) The names and addresses, if known, of the current owners
of the property needed for the transportation facility or
(B) The nature of the property interests to be acquired; and
(C) Any property that the division may expect to condemn;
(5) Information relating to the current transportation plans,
if any, of each affected local jurisdiction;
(6) A list of all permits and approvals required for
acquisition or construction of or improvements to the
transportation facility or facilities from local, state or federal
agencies and a projected schedule for obtaining the permits and
(7) A list of public utility facilities, if any, that will be
crossed or affected by or as the result of the construction or
improvement of the public port transportation facility or
facilities and a statement of the plans of the developer to
accommodate the crossings or relocations;
(9) A statement setting forth the developer's general plans
for financing and operating the transportation facility or
(10) The names and addresses of the persons who may be
contacted for further information concerning the request;
(11) Information about the developer, including, but not limited to, an organizational chart of the developer,
capitalization of the developer, experience in the operation of
transportation facilities and references and certificates of good
standing from the Tax Commissioner, Insurance Commissioner and the
Division of Unemployment Compensation evidencing that the developer
is in good standing with state tax, workers' compensation and
unemployment compensation laws, respectively; and
(12) Any additional material and information requested by the
Commissioner of Highways.
(d) The division, with approval of the Commissioner of
Highways, may solicit proposals from private entities for the
acquisition, construction or improvement of transportation
facilities in a form and with the content determined by the
(e) The division may solicit any proposal for the acquisition,
construction or improvement of the transportation facility or
facilities as a qualifying transportation facility if it is
determined that it serves the public purpose of this article. The
division may determine that the acquisition, construction or
improvement of the transportation facility or facilities as a
qualifying transportation facility serves a public purpose if:
(1) There is a public need for the transportation facility of
the type the private entity proposes to operate as a qualifying
(2) The transportation facility and the proposed
interconnections with existing transportation facilities and the
developer's plans for development of the qualifying transportation
facility are reasonable and compatible with the state
transportation plan and with the local comprehensive plan or plans;
(3) The estimated cost of the transportation facility or
facilities is reasonable in relation to similar facilities;
(4) The acquisition, construction or improvement, or the
financing of the transportation facilities does not involve any
moneys from the State Road Fund unless specifically appropriated
from state General Revenue Funds or, in the discretion of the
division, federal funds specifically earmarked in a federal
authorization or appropriations bill for a transportation facility
to be acquired, constructed or equipped pursuant to this article:
Provided, That the division may expend moneys from the State Road
Fund to serve as a required match to a federal authorization or
(5) The acquisition, construction, or improvement, or the
financing of the transportation facilities does not involve the
dedication in any fiscal year of more than four percent of the
annual division of highways construction contracts awarded by the
division under competitive bidding process, averaged over the three
immediately preceding fiscal years.
(6) The use of federal funds in connection with the financing of a qualifying transportation facility has been determined by the
division to be compatible with the state transportation plan and
with the local comprehensive plan or plans; and
(7) The private entity's plans will result in the timely
acquisition or construction of or improvements to the
transportation facility for their more efficient operation and that
the private entity's plans will result in a more timely and
economical delivery of the transportation facility than otherwise
available under existing delivery systems.
(f) Notwithstanding any provision of this article to the
contrary, the recommendation of the division to the Commissioner of
Highways is subject to:
(1) The private entity's entering into a comprehensive
agreement with the division; and
(2) With respect to transportation facilities, the requirement
that public information dissemination with regard to any proposal
under consideration comply with the division's policy on the public
involvement process, as revised.
(g) In connection with its approval of the development of the
transportation facility as a qualifying transportation facility,
the division shall establish a date for the acquisition of or the
beginning of construction of or improvements to the qualifying
transportation facility. The division may extend that date.
(h) Selection by the Commissioner of Highways.
(1) Upon presentations of proposals received by the division,
the commissioner shall make his or her decision for the project.
(2) The commissioner shall notify the division and the public
of the final selection for the project.
§17-27-6. Service contracts.
In addition to any authority otherwise conferred by law, any
public entity may contract for services to be provided for a
qualifying transportation facility in exchange for service payments
and other consideration as the division determines appropriate.
§17-27-7. Dedication of public property.
Any public entity may dedicate any property interest that it
has for public use as a qualified transportation facility if it
finds it will serve the public purpose of this article. In
connection with the dedication, a public entity may convey any
property interest that it has to the developer, by contract, for
any consideration determined by the public entity. This
consideration may include, without limitation, the agreement of the
developer to develop the qualifying transportation facility. No
real property may be dedicated by a public entity pursuant to this
article unless all other public notice and comment requirements are
§17-27-8. Powers and duties of the developer.
(a) The developer has all power allowed by law generally to a
private entity having the same form of organization as the developer and may acquire, construct or improve the qualifying
transportation facility and impose user fees in connection with the
use of the facility.
(b) The developer may own, lease or acquire any other right to
facilitate the development of the qualifying transportation
(c) Any financing of the qualifying transportation facility
may be in the amounts and upon terms and conditions determined by
the developer. The developer may issue debt, equity or other
securities or obligations, enter into sale and leaseback
transactions and secure any financing with a pledge of, security
interest in, or lien on, any or all of its property, including all
of its property interests in the qualifying transportation
(d) Subject to applicable permit requirements, the developer
may cross any canal or navigable watercourse as long as the
crossing does not unreasonably interfere with then current
navigation and use of the waterway.
(e) In developing the qualifying transportation facility, the
(1) Make classifications according to reasonable categories
for assessment of user fees; and
(2) With the consent of the division, make and enforce
reasonable rules to the same extent that the division may make and enforce rules with respect to a similar transportation facility.
The developer may, by agreement with appropriate law-enforcement
agencies, arrange for video enforcement in connection with its toll
(f) The developer shall:
(1) Acquire, construct or improve the qualifying
transportation facility in a manner that meets the engineering
(A) The authority for facilities operated and maintained by
the division, in accordance with the provisions of the
comprehensive agreement; and
(B) The division, in accordance with the provisions of the
(2) Keep the qualifying transportation facility open for use
by the members of the public at all times after its initial opening
upon payment of the applicable user fees or service payments:
Provided, That the qualifying transportation facility may be
temporarily closed because of emergencies or, with the consent of
the division, to protect the safety of the public or for reasonable
construction or maintenance procedures;
(3) Contract for the performance of all maintenance and
operation of the transportation facility through the division,
using its maintenance and operations practices, until the date of
termination of the developer's duties as defined in the comprehensive agreement;
(4) Cooperate with the division in establishing any
interconnection with the qualifying transportation facility
requested by the division;
(5) Remain in compliance with state tax, workers' compensation
and unemployment compensation laws; and
(6) Comply with the provisions of the comprehensive agreement
and any service contract.
§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
(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
(8) A reasonable maximum rate of return on investment for the
(9) The date of termination of the developer's duties under
this article and dedication to the division;
(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 §17-4-17b of
(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
(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, shall be added to the comprehensive
agreement by written amendment.
(g) Notwithstanding any provision of this article to the
contrary, the division may not enter into any comprehensive
agreements with a developer after the thirtieth day of June, two
(h) Notwithstanding any provision of this article to the
contrary, the division may not enter into a comprehensive agreement
until the comprehensive agreement is approved by the Legislature by
the adoption of a concurrent resolution.
§17-27-10. Federal, state and local assistance.
The division may take any action to obtain federal, state or
local assistance for a qualifying transportation facility that
serves the public purpose of this article and may enter into any
contracts required to receive federal assistance. The division may
determine that it serves the public purpose of this article for all
or any portion of the costs of a qualifying transportation facility
to be paid, directly or indirectly, from the proceeds of a grant or
loan made by the local, state or federal government or any agency
or instrumentality thereof.
§17-27-11. Material default; remedies.
(a) Except upon written agreement of the developer and any
other parties identified in the comprehensive agreement, the
division may exercise, at its discretion, any or all of the
following remedies provided in this section or elsewhere in this
article to remedy any material default that has occurred or may
continue to occur.
(1) To elect to take over the transportation facility or
facilities and in that case it shall succeed to all of the right,
title and interest in the transportation facility or facilities, subject to any liens on revenues previously granted by the
developer to any person providing financing for the facility or
facilities and the provisions of subsection (c) of this section;
(2) To exercise the 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
(3) To 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) To make or cause to be made any appropriate claims under
the performance or payment bonds required by this article.
(b) In the event the division elects to take over a qualifying
transportation facility pursuant to subdivision (1), subsection (a)
of this section, the division may acquire, construct or improve the
transportation facility, impose user fees for the use of the
transportation facility and comply with any service contracts as if
it were the developer. Any revenues that are subject to a lien
shall be collected for the benefit of, and paid to, secured
parties, as their interests may appear, to the extent necessary to
satisfy the developer's obligations to secured parties, including the maintenance of reserves and the liens shall be correspondingly
reduced and, when paid off, released. Remaining revenues, if any,
after all payments to, or for the benefit of, secured parties shall
be paid to the developer, subject to the negotiated maximum rate of
return. The right to receive the payment, if any, shall be
considered just compensation for the transportation facility or
facilities. The full faith and credit of the division may 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 does not
obligate the division to pay any obligation of the developer from
sources other than revenues.
§17-27-12. No liability.
The full faith and credit of the state, or any county,
municipality or political subdivision of the state may not be
pledged to secure any financing of the developer in connection with
the acquisition, construction or equipping of a qualifying
(a) At the request of the developer, the division may exercise
the power of condemnation that it has under law for the purpose of
acquiring any lands or estates or interests in any lands or estates
to the extent that the division finds that the action serves the
public purpose of this article. Any amounts to be paid in any condemnation proceeding shall be paid by the developer.
(b) Until the division has provided written certification as
to the existence of a material default under subsection (a),
section eleven of this article, the power of condemnation may not
be exercised against a qualifying transportation facility.
§17-27-14. Utility crossings.
The developer and each county, municipality, public service
district, public utility, railroad and cable television provider
whose facilities are to be crossed or affected shall cooperate
fully with the other in planning and arranging the manner of the
crossing or relocation of the facilities. Any entity possessing
the power of condemnation is expressly granted the powers in
connection with the moving or relocation of facilities to be
crossed by the qualifying transportation facility or that must be
relocated to the extent that the moving or relocation is made
necessary or desirable by construction of or improvements to the
qualifying transportation facility, which includes construction of
or improvements to temporary facilities for the purpose of
providing service during the period of construction or improvement.
Any amount to be paid for the crossing, construction, moving or
relocating of facilities shall be paid by the developer.
§17-27-15. Dedication of assets.
The division shall terminate the developer's authority and
duties under this article on the date set forth in the comprehensive agreement. Upon termination, the division and duties
of the developer under this article cease and the qualifying
transportation facility shall be dedicated to the division for
§17-27-16. Qualifying a transportation facility as a public
All qualifying transportation facilities authorized under this
article are public improvements and are subject to article five-a,
chapter twenty-one of this code. Article twenty-two, chapter five
of this code applies to all qualifying transportation facilities
authorized under this article. All construction, reconstruction,
repair or improvement of qualifying transportation facilities
authorized under this article shall be awarded by competitive
bidding. Competitive bids shall be solicited by the division for
each construction contract in excess of twenty-five thousand
dollars in total cost. Construction costs should be of sufficient
size that the performance and payment bonds are in the $10 million
to $30 million dollar range, where possible. Competitive bids
shall be solicited by the division 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 is the county or municipality in which the transportation
facility is to be located. The advertisement shall also be
published as a Class II advertisement in a newspaper of general circulation published in the city of Charleston. The advertisement
shall solicit sealed proposals for the construction of the
transportation facility, stating the time and place for the opening
of bids. All bids shall be publicly opened and read aloud.
Construction contracts shall be awarded to the lowest qualified
responsible bidder, who shall furnish a sufficient performance or
payment bond: Provided, That both the division and the private
entity has 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 apply to the construction of all
qualifying transportation facilities approved under this article.
§17-27-17. Exemption from taxation.
The exercise of the powers granted in this article will be in
all respects for the benefit of the people of this state, for the
improvement of their health, safety, convenience and welfare and
for the enhancement of their residential, agricultural,
recreational, economic, commercial and industrial opportunities and
is a public purpose. As the construction, acquisition,
improvement, operation and maintenance of qualifying transportation
facilities will constitute the performance of essential
governmental functions, a developer shall not be required to pay
any taxes or assessments upon any qualifying transportation
facility or any property acquired or used by the developer under
the provisions of this article or upon the income therefrom, other than taxes collected from the consumer pursuant to article fifteen,
chapter eleven of this code.
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.