Senate Bill No. 1
(By Senators Plymale, Jenkins, Stollings and McCabe)
[Introduced February 13, 2013; referred to the Committee on
Transportation and Infrastructure; and then to the Committee on
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 the division may enter into comprehensive agreements; and
substituting the Secretary of the Department of Transportation
for the Legislature as the party authorized to approve
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
(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.
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; 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 an 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.
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,
(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
NOTE: The purpose of this bill is to change the final date
that the 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