Report Title:

Public-Private Transportation

 

Description:

Allows private entities to enter into agreements to construct, improve, maintain, and operate transportation facilities in the State.

 


HOUSE OF REPRESENTATIVES

H.B. NO.

721

TWENTY-FOURTH LEGISLATURE, 2007

 

STATE OF HAWAII

 

 

 

 

 

A BILL FOR AN ACT

 

 

relating to transportation.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


     SECTION 1.  The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

Hawaii PUBLIC-PRIVATE TRANSPORTATION ACT

     §   -1  Title.  This chapter may be cited as the "Hawaii Public-Private Transportation Act."

     §   -2  Definitions.  As used in this chapter, unless the context requires a different meaning:

     "Affected jurisdiction" means any county 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.

     "Comprehensive agreement" means the comprehensive agreement between the private entity and the responsible public entity required by section    -10.

     "Concession" means any lease, license, franchise, easement, or other binding agreement transferring rights for the use or control, in whole or in part, of a qualifying transportation facility by a responsible public entity to a private entity for a definite term during which the private entity provides transportation-related services including, but not limited to, operations and maintenance, revenue collection, toll-collection enforcement, design, construction, and other activities that enhance throughout, reduce congestion, or otherwise manage the facility in return for the right to receive all or a portion of the revenues of the qualifying transportation facility.

     "Concession payment" means a payment from a private entity to a responsible public entity in connection with the development or operation, or both, of a qualifying transportation facility pursuant to a concession.

     "Department" means the department of transportation.

     "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 or operation, or both, of a qualifying transportation facility.

     "Material default" means any default by the private entity in the performance of its duties under section    -9(e) 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 private entity and a reasonable cure period has elapsed.

     "Multimodal transportation facility" means a transportation facility consisting of multiple modes of transportation.

     "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 business entity.

     "Public entity" means the State and any state agency or authority or any county but shall not include any public service company.

     "Qualifying transportation facility" means one or more transportation facilities developed or operated, or both, by a private entity pursuant to this chapter.

     "Responsible public entity" means a public entity, including county governments, that has the power to develop or operate, or both, the qualifying transportation facility.

     "Revenues" means all revenues, including, but not limited to, income, earnings, user fees, lease payments, allocations, federal, state, and county appropriations or the appropriations or other funds available to any political subdivision, authority, or instrumentality thereof, bond proceeds, equity investments, or service payments arising out of or in connection with supporting the development or operation, or both, of a qualifying transportation facility, including without limitation, money received as grants or otherwise from the federal government, from any public entity, or from any agency or instrumentality of the foregoing in aid of the facility.

     "Service contract" means a contract entered into between a public entity and the private entity pursuant to section    -6.

     "Service payments" means payments to the private entity in connection with the development or operation, or both, of a qualifying transportation facility pursuant to a service contract.

     "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 needed to operate such facility; however, a commercial or retail use or enterprise not essential to the transportation of persons or goods shall not be a "transportation facility".

     "User fees" mean the rates, tolls, fees, or other charges imposed by the private entity for use of all or a portion of a qualifying transportation facility pursuant to the interim or comprehensive agreement.

     §   -3  Policy.  (a)  The legislature finds that:

     (1)  There is a public need for timely development or operation, or both, of transportation facilities within the State that address the needs identified by the appropriate state or county transportation plan by improving safety, reducing congestion, increasing capacity, and enhancing economic efficiency and that the public need may not be wholly satisfied by existing methods of procurement in which qualifying transportation facilities are developed or operated, or both;

     (2)  The public need may not be wholly satisfied by existing ways in which transportation facilities are developed or operated, or both; and

     (3)  Authorizing private entities to develop or operate, or both, one or more transportation facilities may result in the development or operation, or both, of transportation facilities for 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 section    ‑5, shall serve the public purpose of this chapter if the action, including undertaking a concession, facilitates the timely development or operation, or both, of a qualifying transportation facility.

     (c)  It is the intent of this chapter, among other things, to encourage investment in the State by private entities that facilitates the development or operation, or both, 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 that are the subject of this chapter.

     (d)  This chapter shall be liberally construed in conformity with the purposes hereof.

     §   -4  Prerequisite for operation.  Any private entity seeking authorization under this chapter to develop or operate, or both, a transportation facility shall first obtain approval of the responsible public entity under section    -5.  The private entity may initiate the approval process by requesting approval pursuant to section    -5(a) or the responsible public entity may request proposals pursuant to section    -5(b).

     §   -5  Approval by the responsible public entity.  (a)  A 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 or operate, or both, 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 the facility or facilities and all proposed interconnections with other transportation facilities;

     (3)  The proposed date for development or operation, or both, 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 private entity proposes to secure any property interests required for the transportation facility or facilities;

     (5)  Information relating to the current transportation plans, if any, of each affected jurisdiction;

     (6)  A list of all permits and approvals required for developing or operating improvements to the transportation facility or facilities from county, state, or federal agencies and a projected schedule for obtaining those 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 private entity to accommodate such crossings;

     (8)  A statement setting forth the private entity's general plans for developing or operating, or both, the transportation facility or facilities, including identification of any revenue, public or private, or proposed debt or equity investment or concession proposed by the private entity;

     (9)  The names and addresses of the persons who may be contacted for further information concerning the request;

    (10)  Information on how the private entity's proposal will address the needs identified in the appropriate state or county transportation plan by improving safety, reducing congestion, increasing capacity, and enhancing economic efficiency; and

    (11)  Any additional material and information that 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 development or operation, or both, 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 these requests.

     (c)  The responsible public entity may grant approval of the development or operation, or both, 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 development or operation, or both, 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 or facilities the private entity proposes to develop or operate, or both, as a qualifying transportation facility;

     (2)  The transportation facility or facilities and the proposed interconnections with existing transportation facilities and the private entity's plans for development or operation, or both, of the qualifying transportation facility or facilities are reasonable, in the opinion of the responsible public entity, and will address the needs identified in the appropriate state or county transportation plan by improving safety, reducing congestion, increasing capacity, and enhancing economic efficiency;

     (3)  The estimated cost of developing or operating, or both, the transportation facility or facilities is reasonable in relation to similar facilities; and

     (4)  The private entity's plans will result in the timely development or operation, or both, of 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).  The guidelines shall establish:

     (1)  A specific schedule for review of the proposal by the responsible public entity;

     (2)  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;

     (3)  The process for receipt and review of competing proposals; and

     (4)  The type and amount of information that is necessary for adequate review of proposals in each stage of review.

The guidelines shall provide for a prioritized documentation, review, and selection process 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 or operate, or both, the qualifying transportation facility in accordance with the purpose of this chapter.

     (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 or operation, or both, 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 that 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.

     (h)  The responsible public entity may also apply for, execute, and endorse applications submitted by private entities to obtain federal credit assistance for qualifying projects developed or operated, or both, pursuant to this chapter.

     §   -6  Service contracts.  In addition to any authority otherwise conferred by law, any public entity may contract with a private entity for transportation services to be provided by a qualifying transportation facility in exchange for any service payments and other consideration that the public entity may deem appropriate.

     §   -7  Affected jurisdictions.  (a)   Any private entity requesting approval from, or submitting a proposal to, a responsible public entity under section    -5 shall notify each affected jurisdiction by furnishing a copy of its request or proposal to each affected jurisdiction.

     (b)  Each affected jurisdiction that is not a responsible public entity for the respective qualifying transportation facility, within sixty days after receiving a request for comments from the responsible public entity, shall submit any comments it may have in writing on the proposed qualifying transportation facility to the responsible public entity and indicate whether the facility will address the needs identified in the appropriate state or county transportation plan by improving safety, reducing congestion, increasing capacity, and enhancing economic efficiency.

     §   -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 doing so will serve the public purpose of this chapter.  In connection with a 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 private entity, subject to this chapter, for any consideration that the public entity may determine.  The consideration may include, without limitation, the agreement of the private entity to develop or operate, or both, 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, concessions, or any other right or interest that the public entity deems appropriate.  The property interest including, but not limited to, a leasehold interest in or rights to use real property constituting a qualifying transportation facility shall be considered property indirectly owned by the public entity.

     §   -9  Powers and duties of the private entity.  (a)  The private entity shall have all power allowed by law generally to a private entity having the same form of organization as the private entity and shall have the power to develop or operate, or both, the qualifying transportation facility and impose user fees and enter into service contracts in connection with the use thereof.  No tolls or user fees may be imposed by the private entity without the necessary federal, state, or county approvals.

     (b)  The private entity may own, lease, or acquire any other right to use or develop or operate, or both, the qualifying transportation facility.

     (c)  Subject to applicable permit requirements, the private entity shall have the authority to cross any canal or navigable watercourse both above ground or below ground so long as the crossing does not unreasonably interfere with then current navigation and use of the waterway and subject to military concurrence where applicable.

     (d)  In operating the qualifying transportation facility, the 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.

     (e)  The private entity shall:

     (1)  Develop or operate, or both, the qualifying transportation facility in a manner that meets the standards of the responsible public entity for transportation facilities operated and maintained by the responsible public entity, all in accordance with the interim agreement or the comprehensive agreement;

     (2)  Keep the qualifying transportation facility open for use by the members of the public, in accordance with the terms and conditions of the interim or comprehensive agreement after its initial opening, upon payment of the applicable user fees and 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 interim or comprehensive agreement and any service contract.

     §   -10  Comprehensive agreement.  (a)  Prior to developing or operating, or both, the qualifying transportation facility, the private entity shall enter into a comprehensive agreement with the responsible public entity.  The comprehensive agreement shall provide for, as appropriate:

     (1)  Delivery of performance and payment bonds in connection with the development or operation, or both, of the qualifying transportation facility, in the forms and amounts satisfactory to the responsible public entity;

     (2)  Review of plans for the development or operation, or both, of the qualifying transportation facility by the responsible public entity and approval by the responsible public entity if the plans conform to 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 conformance with 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 ensure 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 private entity by the responsible public entity and the taking of any actions that 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 reimbursement of development expenses in the event of termination for convenience by the responsible public entity as agreed upon between the responsible public entity and the private entity;

     (9)  The date of termination of the 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 or operation, or both, of the qualified transportation facility and payment of damages for failure to meet the completion guarantee.

     (b)  The comprehensive agreement shall provide for any user fees that may be established from time to time by agreement of the parties.  Any user fees shall be set at a level that takes into account any lease payments, service payments, and compensation to the private entity or as 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 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 similar conditions, 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, from time to time, from amounts received from the federal government or any agency or instrumentality thereof for the development or operation, or both, of the qualifying transportation facility.

     (d)  The comprehensive agreement shall incorporate the duties of the private entity under this chapter and may contain any 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 private entity and the persons specified therein as providing financing for the qualifying transportation facility.  The comprehensive agreement may contain any other lawful terms and conditions to which the 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 for the development or operation, or both, 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 state highway fund, to the responsible public entity, or to the private entity for debt reduction or they may be shared with appropriate public entities.  Any payments under a concession arrangement for which the State is the responsible public entity shall be paid into the state highway fund.

     (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 or operation, or both, of phases or segments of the qualifying transportation facility.

     §   -11  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 or operation, or both, of the facility or facilities.  The interim agreement may:

     (1)  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, surveying, conducting transportation and revenue studies, and ascertaining the availability of financing for the proposed facility or facilities;

     (2)  Establish the process and timing of the negotiation of the comprehensive agreement; and

     (3)  Contain any other provisions related to any aspect of the development or operation, or both, 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 into 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.

     §   -12  Multiple public entities.  (a)  If a private entity submits a proposal pursuant to section    ‑5(a) to develop or operate, or both, 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, prior to acceptance of the proposal, shall convene and determine which public entity shall serve as the coordinating responsible public entity.  That determination shall occur within sixty days of the receipt of a proposal by the respective public entities.

     (b)  If public entities request proposals from private entities for the development or operation, or both, of a qualifying transportation facility or a multimodal transportation facility pursuant to section    ‑5(b), 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.

     §   -13  Federal, state, and county assistance.  (a)  The responsible public entity may take any action to obtain federal, state, or county assistance for a qualifying transportation facility that serves the public purpose of this chapter and may enter into any contracts required to receive such 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 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 county, state, or federal government, or any agency or instrumentality thereof.

     (b)  The responsible public entity may agree to make grants or loans, from time to time, from amounts received from the federal, state, or county government, or any agency or instrumentality thereof, for the development or operation, or both, of the qualifying transportation facility.

     (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 State or the affected jurisdictions.

     §   -14  Financing.  Any financing of a qualifying transportation facility may be in the amounts and upon the terms and conditions that 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, to the fullest extent permitted by applicable law, may:  issue debt, equity, or other securities or obligations; enter into leases, concessions, 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.

     §   -15  Material default; remedies.  (a)  Upon the occurrence and during the continuation of material default, the responsible public entity may exercise any or all of the following remedies:

     (1)  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 the transportation facility or facilities, subject to any liens on revenues previously granted by the private entity to any person providing financing therefore;

     (2)  Terminate the interim or comprehensive agreement and exercise any other rights and remedies that may be available to it at law or in equity; and

     (3)  Make or cause to be made any appropriate claims under the performance or payment bonds, or both, required by section    ‑10.

     (b)  In the event the responsible public entity elects to take over a qualifying transportation facility pursuant to subsection (a), the responsible public entity may develop or operate, or both, the transportation facility, impose user fees for the use thereof, and comply with any service contracts as if it were the 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 private entity's obligations to secured parties, including the maintenance of reserves, and the liens shall be correspondingly reduced and, when paid off, released.  Before any payments to, or for the benefit of, secured parties are made, 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 private entity, subject to the negotiated maximum rate of return.  The right to receive 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 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 private entity from sources other than revenues.

     §   -16  Condemnation.  (a)  At the request of the 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 this action serves the public purpose of this chapter.  Any amounts to be paid in a condemnation proceeding shall be paid by the private entity.

     (b)  Except as provided in subsection (a),the power of condemnation may not be exercised against a qualifying transportation facility until the department, 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 that a material default has occurred and is continuing.

     (c)  After the entry of such a final order by the department, any responsible public entity having the power of condemnation under state law may exercise the power of condemnation to acquire the qualifying transportation facility or facilities in lieu of, or at any time after taking over the transportation facility pursuant to section   -15(a)(1).  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 department 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.

     §   -17  Utility crossings.  The private entity and each public service company, public utility, 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 hereby expressly granted 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 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.  If the private entity and any public service company, public utility, and cable television provider are not be able to agree upon a plan for the crossing or relocation, the department 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 department may employ expert engineers who shall examine the location and plans for a crossing or relocation, hear any objections and consider modifications, and make a recommendation to the department.  In such a case, the cost of the experts shall be borne by the private entity.  Any amount to be paid for a crossing, construction, moving, or relocating of facilities shall be paid for by the private entity or any other person contractually responsible therefore under the interim or comprehensive agreement or under any other contract, license, or permit.  The department shall make a determination within ninety days of notification by the private entity that the qualifying transportation facility will cross utilities subject to the department's jurisdiction.

     §   -18  Police powers; violations of law.  (a)  All police officers and other law enforcement officers having police powers of the State and of each affected county shall have the same powers and jurisdiction within the limits of the qualifying transportation facility that they have in their respective areas of jurisdiction, and these officers shall have access to the qualifying transportation facility at any time for the purpose of exercising their powers and jurisdiction.  This authority does not extend to the private offices, buildings, garages, and other improvements of the 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 State or, if applicable, any county jurisdiction shall be the same as those applying to conduct on similar transportation facilities in the State or a county.  Punishment for offenses shall be as prescribed by law for conduct occurring on similar transportation facilities in the State or a county.

     §   -19  Dedication of assets.  The responsible public entity shall terminate the 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 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 jurisdiction, to that affected local jurisdiction for public use.

     §   -20  Sovereign immunity.  Nothing in this chapter shall be construed as or deemed a waiver of the sovereign immunity of the State, any responsible public entity, any affected county jurisdiction, or any officer or employee thereof with respect to the participation in, or approval of all or any part of, the qualifying transportation facility or its operation, including but not limited to interconnection of the qualifying transportation facility with any other transportation facility.  A county in which a qualifying transportation facility is located shall possess sovereign immunity with respect to its construction and operation.

     §   -21  Procurement.  (a)  The Hawaii public procurement code, chapter 103D, shall not apply to this chapter; however, a responsible public entity may enter into an interim or a comprehensive agreement only in accordance with guidelines adopted by it that are consistent with procurement:

     (1)  Through "competitive sealed bidding" as defined in section 103D‑302; or

     (2)  Of other than professional services through competitive negotiation.  The 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 shall include:

          (A)  The proposed cost of the qualifying transportation facility;

          (B)  The general reputation, qualifications, industry experience, and financial capacity of the private entity;

          (C)  The proposed design, operation, and feasibility of the qualifying transportation facility;

          (D)  The eligibility of the facility for priority selection, review, and documentation timelines under the responsible public entity's guidelines;

          (E)  Local citizen and public entity comments;

          (F)  Benefits to the public;

          (G)  The private entity's compliance with a minority business enterprise participation plan or good faith effort to comply with the goals of such a plan;

          (H)  The private entity's plans to employ local contractors and residents;

          (I)  The safety record of the private entity;

          (J)  The ability of the facility to address the needs identified in the appropriate state or county transportation plan by improving safety, reducing congestion, increasing capacity, and enhancing economic efficiency; and

          (K)  Other criteria that the responsible public entity deems appropriate.

     (b)  A responsible public entity shall proceed in accordance with the guidelines adopted by it pursuant to subsection (a)(1) unless it determines that proceeding in accordance with the guidelines adopted by it pursuant to this subsection is likely to be advantageous to the responsible public entity and the public, based on:

     (1)  The probable scope, complexity, or urgency of a project;

     (2)  Risk sharing including guaranteed cost or completion guarantees, added value, or debt or equity investments proposed by the private entity; or

     (3)  An increase in funding, dedicated revenue source, or other economic benefit that would not otherwise be available.

When the responsible public entity determines to proceed according to the guidelines adopted by it pursuant to this subsection, it shall state the reasons for its determination in writing.  If a state agency is the responsible public entity, the approval of the director of transportation shall be required as more specifically set forth in the guidelines before the comprehensive agreement is signed.

     (c)  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 guidelines that are consistent with procurement through competitive sealed bidding as defined in section 103D‑302.  Furthermore, the contracts shall be of a size and scope to encourage maximum competition and participation by qualified contractors.

     (d)  Subsection (c) 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 and shall not apply to any concession that, at a minimum, provides for:

     (1)  The construction, reconstruction, or improvement of any transportation facility, or

     (2)  The operation and maintenance of any transportation facility with existing toll facilities.

     (e)  Nothing in this section shall require that professional services be procured by any method other than competitive negotiation in accordance with the Hawaii public procurement code.

     §   -22  Posting of conceptual proposals; public comment; public access to procurement records.  (a)  Conceptual proposals submitted in accordance with section    -5(a) or (b) to a responsible public entity shall be posted by the responsible public entity within ten working days after acceptance of the proposals as follows:

     (1)  For responsible public entities that are state agencies, departments, and institutions, posting shall be on the department of accounting and general services' website; and

     (2)  For responsible public entities that are county public bodies, posting shall be on the responsible public entity's website or by publication, in a newspaper of general circulation in the county in which the contract is to be performed, of a summary of the proposals and the location where copies of the proposals are available for public inspection.  Posting may also be on the department of accounting and general services' website in the discretion of the county responsible public entity.

     In addition to the posting requirements, at least one copy of the proposals shall be made available for public inspection.  Nothing in this section shall be construed to prohibit the posting of the conceptual proposals by additional means deemed appropriate by the responsible public entity so as to provide maximum notice to the public of the opportunity to inspect the proposals.  Trade secrets, financial records, or other records of the private entity excluded from disclosure shall not be required to be posted, except as otherwise agreed to by the responsible public entity and the private entity.

     (b)  In addition to the posting requirements of subsection (a), for thirty days prior to entering into an interim or comprehensive agreement, a responsible public entity shall provide an opportunity for public comment on the proposals.  The public comment period required by this subsection may include a public hearing in the sole discretion of the responsible public entity.  After the end of the public comment period, no additional posting shall be required.

     (c)  Once the negotiation phase for the development of an interim or a comprehensive agreement is complete and a decision to award has been made by a responsible public entity, the responsible public entity shall present the major business points of the interim or comprehensive agreement, including the use of any public funds, to its oversight board, if any, at a regularly scheduled meeting of the board that is open to the public.

     (d)  Once an interim agreement or a comprehensive agreement has been entered into and the process of bargaining of other interim agreements related to the qualifying transportation facility or the process of bargaining of all phases or aspects of the comprehensive agreement is complete, a responsible public entity shall make procurement records available for public inspection, upon request.  For the purposes of this subsection, procurement records shall not be interpreted to include trade secrets of the private entity or financial records, including balance sheets or financial statements of the private entity that are not generally available to the public through regulatory disclosure or otherwise.

     (e)  Cost estimates relating to a proposed procurement transaction prepared by or for a responsible public entity shall not be open to public inspection.

     (f)  Any inspection of procurement transaction records under this section shall be subject to reasonable restrictions to ensure the security and integrity of the records.

     (g)  This section shall apply to accepted proposals regardless of whether the process of bargaining will result in an interim or a comprehensive agreement.

     (h)  A responsible public entity and any independent review panel appointed to review information and advise the responsible public entity may hold closed meetings to discuss or consider records exempt from disclosure; provided the meetings are held in accordance with the procedural requirements of section 92‑5.

     §   -23  Jurisdiction.  The department of transportation shall have exclusive jurisdiction to adjudicate all matters specifically committed to its jurisdiction by this chapter."

     SECTION 2.  This Act shall take effect on July 1, 2007.

 

INTRODUCED BY:

_____________________________