HOUSE OF REPRESENTATIVES

H.B. NO.

2064

TWENTY-EIGHTH LEGISLATURE, 2016

 

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 legislature finds that an efficient transportation system can increase the quality of life of a state's residents and the economic, social, and environmental well-being of a state.

     Authorizing private entities to undertake all or a portion of the study, planning, design, development, financing, acquisition, installation, construction, improvement, operation, or maintenance of transportation systems, and facility projects can improve transportation systems while providing a sound economic investment opportunity for the private sector.

     The purpose of this Act is to authorize the counties to establish public-private partnerships for transportation to facilitate:

     (1)  Establishing a well-defined mechanism to facilitate the collaboration and creative cost and risk sharing in transportation projects between public and private partners;

     (2)  Bringing innovation from the private sector to address transportation needs within the State and access specialized development, financing, design, construction, management, operations, management services, and techniques available in the private sector;

     (3)  Reducing the public cost of project delivery and services for eligible facilities;

     (4)  Expediting project delivery;

     (5)  Increasing private investment in public infrastructure;

     (6)  Using funding sources that are financially advantageous and in the public interest;

     (7)  Encouraging life-cycle efficiencies in transportation projects;

     (8)  Providing savings and better use of public resources by increasing private investment in public facilities and enhancing capital formation for large projects;

     (9)  Developing eligible facilities with the cooperation, consultation, and support of affected communities and county jurisdictions;

    (10)  Soliciting, evaluating, negotiating, and administering public-private agreements with the private sector relating to the planning, financing, development, design, construction, upgrading, reconstruction, operation, or maintenance of transportation systems and facilities; and

    (11)  Obtaining assistance in the development of transportation systems and facilities from federal programs administered by the United States Department of Transportation.

     The legislature intends that the powers granted to the department of transportation and the counties in this Act to be in addition to any other powers authorized under applicable law.

     SECTION 2.  The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

PUBLIC-PRIVATE PARTNERSHIP IN TRANSPORTATION

     §   -1  Definitions.  Whenever used in this chapter, unless the context otherwise requires:

     "Department" means the state department of transportation.

     "Eligible facility" means any new facility developed, operated, or held in accordance with this chapter, including any facility used or useful for the safe transport of people or goods by one or more modes of transport, whether involving highways, boats, vessels, intermodal or multimodal systems, or any other mode of transport, as well as facilities, structures, parking, rail yards, or storage facilities, vehicles, rolling stock, or other equipment, items, or related property.

     "Private partner" means a person, entity, or organization that is not the federal government, the State, a county, or a unit of government.

     "Public-private partnership agreement" means any binding agreement transferring rights for the use or control, in whole or in part, of an eligible facility by a county or other unit of government to a private partner in accordance with this chapter.

     "Unit of government" means any county or agency of that county, any public corporation established under state law or county ordinance, or any intergovernmental agency or corporation.

     §   -2  Rules.  The department, pursuant to chapter 91, may adopt, amend, or repeal rules as it determines necessary to effectuate this chapter.

     §   -3  Project delivery methods.  Each county may provide for the development or operation of eligible facilities using a variety of project delivery methods and forms of agreement.  These methods may include:

     (1)  Predevelopment agreements leading to other implementing agreements;

     (2)  A design-build agreement;

     (3)  A design-build-maintain agreement;

     (4)  A design-build-finance-operate agreement;

     (5)  A design-build-operate-maintain agreement;

     (6)  An agreement providing for the private partner to design, build, operate, maintain, manage, or lease an existing, enhanced, upgraded, or new facility; and

     (7)  Any other project delivery method or agreement or combination of methods or agreements that, in the determination of the county, will serve the public interest.

     §   -4  Posting of conceptual proposals; public comment; public access to procurement records.  (a)  Conceptual proposals submitted to a county in accordance with this chapter shall be posted by the responsible unit of government within thirty working days after acceptance of the proposals in accordance with chapter 103D.  In addition to the posting requirements, at least one copy of each proposal 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 to provide maximum notice to the public of the opportunity to inspect the proposals.  Prior to posting or otherwise disclosing the conceptual proposal, the responsible unit of government may redact information from the conceptual proposal to the extent permitted by chapter 92F.

     (b)  In addition to the posting requirements of subsection (a), for thirty days prior to entering into an interim or comprehensive agreement, the responsible unit of government 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 unit of government.

     (c)  Once an interim agreement or a comprehensive agreement has been executed, the responsible unit of government 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 or confidential information that may be withheld from public disclosure under chapter 92F.

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

     §   -5  Public-private partnership agreements.  (a)  In any public-private partnership agreement for any eligible facility under this chapter, each county may:

     (1)  Authorize the private partner to collect user fees, tolls, fares, or similar charges, including without limitation provisions that:

         (A)  Specify the technology to be used in the facility;

         (B)  Establish circumstances under which the county may receive a share of revenues from the user fees, tolls, fares, or similar charges; and

         (C)  Govern enforcement of tolls, including the use of cameras or other mechanisms to ensure that users pay tolls that are due, and allowing the private partner access to relevant state and county databases to the extent necessary to collect and enforce tolls;

     (2)  Allow for payments to be made by the county to the private partner, including availability payments or performance-based payments;

     (3)  Allow the county to accept payments of money and share revenues with the private partner;

     (4)  Address the method of sharing risk management and insurance for the project;

     (5)  Specify the method of sharing the costs of development of the project;

     (6)  Allocate financial responsibility for cost overruns;

     (7)  Establish the damages to be assessed for nonperformance;

     (8)  Establish performance criteria, incentives, or both;

     (9)  Address the acquisition of rights-of-way and other property interests that may be required, including provisions addressing the exercise of eminent domain;

    (10)  Establish recordkeeping, accounting, and auditing standards to be used for the project;

    (11)  For a project that reverts to public ownership, address responsibility for reconstruction or renovations necessary for a facility to meet all applicable government standards upon reversion of the facility to public ownership;

    (12)  Provide for security and law enforcement;

    (13)  Identify any county specifications that must be satisfied, including allowing the private partner to request and receive authorization to deviate from those specifications on a showing of need satisfactory to the county;

    (14)  Require a private partner to provide performance and payment bonds, parent company guarantees, letters of credit, and other acceptable forms of security, the penal sum or amount of which may be less than one hundred per cent of the value of the contract involved based upon the county's determination, made on a facility-by-facility basis, of what is required to adequately protect the State;

    (15)  Authorize the private partner to collect user fees, tolls, fares, or similar charges to cover its costs and provide for a reasonable rate of return on the private partner's investment; provided that the partnership agreement may include, but not be limited to:

         (A)  Provisions for the charges to be collected directly by the private partner or by a third party engaged for that purpose;

         (B)  A formula for the adjustment of user fees, tolls, fares, or similar charges during the term of the agreement;

         (C)  A partnership agreement that does not include an adjustment formula, provisions regulating the private partner's return on investment; or

         (D)  A list of various traffic management strategies, including without limitation:

              (i)  General purpose toll lanes;

             (ii)  High occupancy vehicle lanes where single or low occupancy vehicles may "buy-in" to use higher occupancy vehicle lanes by paying a toll;

            (iii)  Lanes or facilities where the tolls may vary during the course of the day or week or according to levels of congestion anticipated or experienced;

             (iv)  Any other traffic management strategies that the county may determine appropriate on a facility-by-facility basis; or

              (v)  Any combination of or variation on the above; and

    (16)  Specify remedies available and dispute resolution procedures, including but not limited to the right of the private partner to institute legal proceedings to obtain an enforceable judgment or award against the county if a default by the county occurs, and procedures for use of dispute review boards, mediation, facilitated negotiation, arbitration, and other alternative dispute resolution procedures.

     (b)  Notwithstanding any other provision of state law or rule or county ordinance or rule, each county may enter into agreements with any private partner that includes provisions described in subsection (a).

     §   -6  Fines; toll evaders.  Each county that provides for the development or operation of eligible facilities shall establish fines for any motorist who evades the payment of an appropriate levied toll on any toll highway built, operated, owned, or financed under this chapter.

     §   -7  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 eligible facility that they have in their respective areas of jurisdiction, and these officers shall have access to the eligible facility at any time for the purpose of exercising their powers and jurisdiction.  This authority shall not extend to the private offices, buildings, garages, and other improvements of the private partner to any greater degree than the police power applies 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.

     §   -8  Funding and financing.  (a)  The development or operation of an eligible facility may be funded from any lawful source, including:

     (1)  The proceeds of grant anticipation revenue bonds authorized by 23 United States Code Section 122 or any other applicable federal or state law;

     (2)  Grants, loans, loan guarantees, lines of credit, revolving lines of credit, or other arrangements available under the Transportation Infrastructure Finance and Innovation Act under 23 United States Code Section 601 or any other federal or state law;

     (3)  Federal, state, or county revenues;

     (4)  User fees, tolls, fares, charges, lease proceeds, rents, availability payments, gross or net receipts from sales, proceeds from the sale of development rights, franchise fees, permit fees, or any other lawful form of consideration;

     (5)  Private activity bonds as described by 26 United States Code Section 142(a)(15) and other forms of private capital; and

     (6)  Any other forms of public and private capital as may be available.

     (b)  As security for the payment of financing described in this section, the revenues from the project may be pledged, but no pledge of revenues shall constitute in any manner or to any extent a general obligation of the State or any county.  Any financing may be structured on a senior, parity, or subordinate basis to any other financing.

     (c)  Each county, and any other unit of government authorized by a county, may issue toll revenue bonds to provide funds for any project under this chapter.

     (d)  Each county may accept from the United States or any of its agencies any funds that are available to the State or to any other unit of government for carrying out the purposes of this chapter, whether the funds are made available by grant, loan, or other financing arrangement.  Each county may enter into any agreements and other arrangements with the United States or any of its agencies that may be necessary, proper, and convenient for carrying out the purposes of this chapter.

     (e)  Each county may accept from any source any grant, donation, gift, or other form of conveyance of land, money, other real or personal property, or other valuable thing made to the State, the county, or another unit of government for carrying out the purposes of this chapter.

     (f)  Any eligible facility may be funded in whole or in part by contribution of any funds or property made by any private partner or public sector partner that is a party to any agreement under this chapter.

     (g)  Notwithstanding any other provision of state law or rule or county ordinance or rule, federal, state, and county funds may be combined with any private sector funds for any project purposes.

     §   -9  Confidentiality and public disclosure.  A proposer of a public-private partnership agreement shall identify those portions of the proposal or other submission that the proposer considers to be trade secrets or confidential commercial, financial, or proprietary information.  The identified information shall be withheld from public disclosure to the extent permitted by chapter 92F.

     §   -10  Federal laws.  If no federal funds are used to fund an eligible facility, the laws of the State, including this chapter, shall govern.  Notwithstanding any provisions of this chapter, if federal funds are used to fund an eligible facility and applicable federal statutes or regulations conflict with this chapter or require provisions or procedures inconsistent with this chapter, the applicable federal statutes or regulations shall govern."

     SECTION 3.  This Act shall take effect on July 1, 2016.

 

INTRODUCED BY:

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Report Title:

Public Private Partnerships; Transportation; Counties

 

Description:

Allows each county to enter into agreements with private entities to build, operate, own, or finance newly constructed transportation facilities including toll highways. 

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.