1317-S.E2

AN ACT Relating to transportation systems and facilities; amending RCW 47.46.010, 47.46.030, 47.46.040, and 47.46.050; and declaring an emergency.

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

Sec. 1. RCW 47.46.010 and 1993 c 370 s 1 are each amended to read as follows:

The legislature finds and declares:

It is essential for the economic, social, and environmental well-being of the state and the maintenance of a high quality of life that the people of the state have an efficient transportation system.

The ability of the state to provide an efficient transportation system will be enhanced by a public-private sector program providing for private entities to undertake all or a portion of the study, planning, design, development, financing, acquisition, installation, construction or improvement, operation, and maintenance of transportation systems and facility projects.

A public-private initiatives program will provide benefits to both the public and private sectors. Public-private initiatives provide a sound economic investment opportunity for the private sector. Such initiatives will provide the state with increased access to property development and project opportunities, financial and development expertise, and will supplement state transportation revenues, allowing the state to use its limited resources for other needed projects.

The public-private initiatives program, to the fullest extent possible, should encourage and promote business and employment opportunities for Washington state citizens.

The public-private initiatives program should be implemented in cooperation and consultation with affected local jurisdictions.

The secretary of transportation should be permitted and encouraged to test the feasibility of building privately funded transportation systems and facilities or segments thereof through the use of innovative agreements with the private sector. The secretary of transportation should be vested with the authority to solicit, evaluate, negotiate, and administer public-private agreements with the private sector relating to the planning, construction, upgrading, or reconstruction of transportation systems and facilities.

Agreements negotiated under a public-private initiatives program will not bestow on private entities an immediate right to construct and operate the proposed transportation facilities. Rather, agreements will grant to private entities the opportunity to design the proposed facilities, demonstrate public support for proposed facilities, and complete the planning processes required in order to obtain a future decision by the department of transportation and other state and local lead agencies on whether the facilities should be permitted and built.

Agreements negotiated under the public-private initiative's program should establish the conditions under which the private developer may secure the approval necessary to develop and operate the proposed transportation facilities; create a framework to attract the private capital necessary to finance their development; and ensure that the transportation facilities will be designed, constructed, and operated in accordance with applicable local, regional, state, and federal laws and the applicable standards and policies of the department of transportation.

The legislature finds that the Puget Sound congestion pricing project, selected under this chapter, raises major transportation policy, economic, and equity concerns. These relate to the integrity of the state's high-occupancy vehicle program; the cost-effective movement of freight and goods; the diversion of traffic to local streets and arterials; and possible financial hardship to commuters. The legislature further finds that these potential economic and social impacts require comprehensive legislative review prior to advancement of the project and directs that the secretary not proceed with the implementation of the project without prior approval of the legislature.

The department of transportation should be encouraged to take advantage of new opportunities provided by federal legislation under section 1012 of the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA). That section establishes a new program authorizing federal participation in construction or improvement or improvement of publicly or privately owned toll roads, bridges, and tunnels, and allows states to leverage available federal funds as a means for attracting private sector capital.

Sec. 2. RCW 47.46.030 and 1993 c 370 s 3 are each amended to read as follows:

(1) The secretary or a designee shall solicit proposals from, and negotiate and enter into agreements with, private entities to undertake as appropriate, together with the department and other public entities, all or a portion of the study, planning, design, construction, operation, and maintenance of transportation systems and facilities, using in whole or in part private sources of financing.

The public-private initiative program may develop up to six demonstration projects. Each proposal shall be weighed on its own merits, and each of the six agreements shall be negotiated individually, and as a stand-alone project. ((~~The commission shall approve each of the selected projects.~~

Proposals and demonstration projects may be selected by the public and private sectors at their discretion. All projects designed, constructed, and operated under this authority must comply with all applicable rules and statutes in existence at the time the agreement is executed, including but not limited to the following provisions: Chapter 39.12 RCW, this title, RCW 41.06.380, chapter 47.64 RCW, RCW 49.60.180, and 49 C.F.R. Part 21.

~~The secretary or a designee shall consult with legal, financial, and other experts within and outside state government in the negotiation and development of the agreements.~~)) (2) If projects selected prior to September 1, 1994, are terminated by the public or private sectors, no other projects shall be selected as replacement projects until the department develops a public involvement process to identify prospective projects.

The public involvement process for replacement projects shall, at a minimum, identify projects that: (a) Have the potential of achieving overall public support among users of the projects, residents of communities in the vicinity of the projects, and residents of communities impacted by the projects; (b) meet a state transportation need; (c) provide a significant state benefit; and (d) have the capability of receiving more than one proposal from private entities to ensure greater competition among proposers and maximum cost benefits to users. Prospective projects may include projects identified by the department or submitted by the private sector.

The department shall develop a public involvement plan for identifying replacement projects and the cost of the plan by January 1, 1997, and shall submit the plan to the legislative transportation committee for review. Project selections for replacement projects made after September 1, 1994, shall be carried out utilizing the public involvement process developed by the department and reviewed by the legislative transportation committee. Projects that meet the criteria established under this section shall be submitted for review by the Washington state transportation commission. The commission shall submit a list of eligible projects to the legislative transportation committee for its consideration. If within forty-five calendar days of submission the legislative transportation committee has not adopted a resolution recommending that the secretary reject an eligible project, the secretary is authorized to solicit proposals for the eligible project.

(3) The department shall require projects selected by the department prior to and after September 1, 1994, except as provided for in subsection (12) of this section, to comply with the requirements of subsections (4) through (11) of this section.

(4) Prior to entering into agreements with private entities under the requirements of RCW 47.46.040 for any project selected before or after September 1, 1994, except as provided for in subsection (12) of this section, the department shall require an advisory vote as mandated under subsections (5) through (11) of this section.

(5)(a) Prior to conducting the advisory vote, the department shall establish a committee comprised of individuals who represent cities and counties in the vicinity of the project; organizations formed to support or oppose the project; and users of the project. The committee shall be named the public-private local involvement committee, and be known as the local involvement committee.

(b) The members of the local involvement committee shall be: (i) An elected official from each city within the county or counties in which the project is located; (ii) an elected official from each county in which the project is located; (iii) two persons from each county in which the project is located who represent an organization formed in support of the project, if the organization exists; (iv) two persons from each county in which the project is located who represent an organization formed to oppose the project, if the organization exists; and (v) two public members active in a state-wide transportation organization. If the committee makeup results in an even number of committee members, there shall be an additional appointment of an elected official from the county in which all, or the greatest portion of the project is located.

(c) City and county elected officials shall be appointed by a majority of the members of the city and county legislative authorities of each city and county in which the project is located. The county legislative authority of each county in which the project is located shall identify and validate organizations officially formed in support of or in opposition to the project and shall make the appointments required under this section from a list submitted by the chair of the organizations. Public members shall be appointed by the governor. All appointments to the local involvement committee shall be made and submitted to the department of transportation no later than August 1, 1995. Vacancies in the membership of the local involvement committee shall be filled by the appointing authority under (b) of this subsection for each position on the committee.

(6) In preparing for the advisory vote the department and the local involvement committee shall conduct a comprehensive analysis of traffic patterns and economic impact to determine and define the geographical boundary of the project area that is most affected by the imposition of tolls or user fees authorized under this chapter. The area so defined is referred to in this section as the affected project area. In defining the affected project area, the department and the local involvement committee shall, at a minimum, undertake: (a) A comparison of the estimated percentage of residents of communities in the vicinity of and impacted by the project who could be subject to tolls or user fees and the estimated percentage of other users and transient traffic that could be subject to tolls or user fees; (b) an analysis of the anticipated traffic diversion patterns; (c) an analysis of the potential economic impact resulting from proposed toll rates or user fee rates imposed on residents, commercial traffic, and commercial entities in communities in the vicinity of and impacted by the project; (d) an analysis of the economic impact of tolls or user fees on the price of goods and services generally; and (e) an analysis of the relationship of the project to state transportation needs and benefits.

(7) After a determination and definition by the department and the local involvement committee of the affected project area, the department and the local involvement committee shall conduct a minimum thirty-day public comment period. The department and the local involvement committee may make adjustments to the definition of the geographical boundary of the affected project area, based on comments received from the public. Within fourteen calendar days after the public comment period, the department and the local involvement committee shall establish the boundaries of the affected project area in units no smaller than a precinct as defined in RCW 29.01.120.

If after establishing the boundaries of the affected project area, the department and the local involvement committee determine that the membership of the local involvement committee requires modification, the department and the committee shall submit recommendations for modification to the legislative transportation committee for consideration by the house of representatives and senate transportation committees during the next succeeding legislative session.

(8) The department and the local involvement committee shall develop a project description for selected projects, using project proposals submitted as a result of solicitations by the department for proposals, technical evaluations of project proposals, and any other salient information. After developing the project description, the department and the local involvement committee shall conduct a thirty-day public comment period. The department and the local involvement committee may make adjustments to the project description based on comments received from the public. Within fourteen calendar days after the public comment period, the department and the local involvement committee shall transmit a copy of the map depicting the affected project area and the project description and characteristics to the county auditor of the county in which any portion of the affected project area, as defined by the department and the local involvement committee, is located.

(9) The department and the local involvement committee shall provide the legislative transportation committee with progress reports on the status of the definition of the affected project area and project description and characteristics.

(10) Upon receipt of the map and the project description and characteristics, the county auditor shall, within sixty days, verify the precincts that are located within the affected project area. The county auditor shall prepare the text identifying and describing the affected project area and the project and shall set an election date for the submission of a ballot proposition authorizing the imposition of tolls or user fees to implement the proposed project within the affected project area, which date may be the next succeeding general election to be held in the state, or at a special election, if requested by the department. The text of the project must appear in a voter's pamphlet for the affected project area. The department shall pay the costs of publication and distribution. The special election date must be the next date for a special election provided under RCW 29.13.020 that is at least sixty days but, if authorized under RCW 29.13.020, no more than ninety days after the receipt of the final map and project description and characteristics by the auditor. The department shall pay the cost of an election held under this section.

(11) The department and the local involvement committee shall submit the results of the advisory vote on any project selected under this chapter, along with any other pertinent information, to the legislative transportation committee within seven calendar days of certification of the vote. No later than thirty days prior to the next legislative session, the legislative transportation committee shall adopt a resolution making a recommendation to the department regarding the disposition of the project proposals.

(12) Subsections (5) through (11) of this section shall not apply to projects selected prior to September 1, 1994, that have no organized public opposition as demonstrated by the submission to the department of petitions bearing at least five thousand signatures opposing the project, collected after September 1, 1994, and by thirty calendar days after the effective date of this act.

Sec. 3. RCW 47.46.040 and 1993 c 370 s 4 are each amended to read as follows:

(1) All projects designed, constructed, and operated under this authority must comply with all applicable rules and statutes in existence at the time the agreement is executed, including but not limited to the following provisions: Chapter 39.12 RCW, this title, RCW 41.06.380, chapter 47.64 RCW, RCW 49.60.180, and 49 C.F.R. Part 21.

(2) The secretary or a designee shall consult with legal, financial, and other experts within and outside state government in the negotiation and development of the agreements.

(3) Agreements shall provide for private ownership of the projects during the construction period. After completion and final acceptance of each project or discrete segment thereof, the agreement shall provide for state ownership of the transportation systems and facilities and lease to the private entity unless the state elects to provide for ownership of the facility by the private entity during the term of the agreement.

The state shall lease each of the demonstration projects, or applicable project segments, to the private entities for operating purposes for up to fifty years.

(4) The department may exercise any power possessed by it to facilitate the development, construction, financing operation, and maintenance of transportation projects under this chapter. Agreements for maintenance services entered into under this section shall provide for full reimbursement for services rendered by the department or other state agencies. Agreements for police services for projects, involving state highway routes, developed under ((~~the agreement may~~)) agreements shall be entered into with ((~~any qualified law enforcement agency, and shall provide for full reimbursement for services rendered by that agency~~)) the Washington state patrol. The agreement for police services shall provide that the state patrol will be reimbursed for costs on a comparable basis with the costs incurred for comparable service on other state highway routes. The department may provide services for which it is reimbursed, including but not limited to preliminary planning, environmental certification, and preliminary design of the demonstration projects.

(5) The plans and specifications for each project constructed under this section shall comply with the department's standards for state projects. A facility constructed by and leased to a private entity is deemed to be a part of the state highway system for purposes of identification, maintenance, and enforcement of traffic laws and for the purposes of applicable sections of this title. Upon reversion of the facility to the state, the project must meet all applicable state standards. Agreements shall address responsibility for reconstruction or renovations that are required in order for a facility to meet all applicable state standards upon reversion of the facility to the state.

(6) For the purpose of facilitating these projects and to assist the private entity in the financing, development, construction, and operation of the transportation systems and facilities, the agreements may include provisions for the department to exercise its authority, including the lease of facilities, rights of way, and airspace, exercise of the power of eminent domain, granting of development rights and opportunities, granting of necessary easements and rights of access, issuance of permits and other authorizations, protection from competition, remedies in the event of default of either of the parties, granting of contractual and real property rights, liability during construction and the term of the lease, authority to negotiate acquisition of rights of way in excess of appraised value, and any other provision deemed necessary by the secretary.

(7) The agreements entered into under this section may include provisions authorizing the state to grant necessary easements and lease to a private entity existing rights of way or rights of way subsequently acquired with public or private financing. The agreements may also include provisions to lease to the entity airspace above or below the right of way associated or to be associated with the private entity's transportation facility. In consideration for the reversion rights in these privately constructed facilities, the department may negotiate a charge for the lease of airspace rights during the term of the agreement for a period not to exceed fifty years. If, after the expiration of this period, the department continues to lease these airspace rights to the private entity, it shall do so only at fair market value. The agreement may also provide the private entity the right of first refusal to undertake projects utilizing airspace owned by the state in the vicinity of the public-private project.

(8) Agreements under this section may include any contractual provision that is necessary to protect the project revenues required to repay the costs incurred to study, plan, design, finance, acquire, build, install, operate, enforce laws, and maintain toll highways, bridges, and tunnels and which will not unreasonably inhibit or prohibit the development of additional public transportation systems and facilities. Agreements under this section must secure and maintain liability insurance coverage in amounts appropriate to protect the project's viability and may address state indemnification of the private entity for design and construction liability where the state has approved relevant design and construction plans.

(9) Agreements shall include a process that provides for public involvement in decision making with respect to the development of the projects.

(10)(a) In carrying out the public involvement process required in subsection (9) of this section, the private entity shall proactively seek public participation through a process appropriate to the characteristics of the project that assesses and demonstrates overall public support among: Users of the project, residents of communities in the vicinity of the project, and residents of communities impacted by the project. The public involvement process shall provide opportunities for users and residents to comment upon key issues regarding the project including, but not limited to: (i) Alternative sizes and scopes; (ii) design; (iii) environmental assessment; (iv) right of way and access plans; (v) traffic impacts; (vi) tolling or user fee strategies and tolling or user fee ranges; (vii) project cost; (viii) construction impacts; (ix) facility operation; and (x) any other salient characteristics.

(b) The private entity shall cause to be conducted on one or more occasions, a comprehensive inventory of public positions of users and of residents of communities in the affected project area. If the affected project area has not been defined, the private entity shall define the affected project area by conducting, at a minimum: (i) A comparison of the estimated percentage of residents of communities in the vicinity of and impacted by the project who could be subject to tolls or user fees and the estimated percentage of other users and transient traffic that could be subject to tolls or user fees; (ii) an analysis of the anticipated traffic diversion patterns; (iii) an analysis of the potential economic impact resulting from proposed toll rates or user fee rates imposed on residents, commercial traffic, and commercial entities in communities in the vicinity of and impacted by the project; (iv) an analysis of the economic impact of tolls or user fees on the price of goods and services generally; and (v) an analysis of the relationship of the project to state transportation needs and benefits.

The agreement may require an advisory vote by users of and residents in the affected project area under the terms and conditions established for the vote in RCW 47.46.030(5) through (10), except that the private entity shall pay all costs associated with the advisory vote.

The comprehensive inventory of public positions shall be conducted by an independent accountant or other independent professional jointly selected and supervised by the private entity and the department in consultation with the local involvement committee and the legislative transportation committee. The independent accountant or other independent professional must have a proven history and expertise in assessing public opinion and shall not have a direct or indirect interest in such project. The results of the inventory of public positions shall be made available for public review and comment.

(c) In seeking public participation, the private entity shall involve the local involvement committee established under RCW 47.46.030. If no local involvement committee has been established for the project prior to entering into the agreement, the private entity shall, at a minimum, establish the committee as required under the specifications of RCW 47.46.030(5) (b) and (c). Additions to the committee may be made as a result of defining the affected project area as required under subsection (10)(b) of this section.

(d) The local involvement committee shall act in an advisory capacity to the department and the private entity on all issues related to the development and implementation of the public involvement process established under this section.

(e) The department and the private entity shall provide the legislative transportation committee and the local involvement committee with progress reports on the status of the public involvement process and the inventory of public positions. The results of the inventory of public positions, including public comment on such inventory of public positions, shall be forwarded to the legislative transportation committee and the local involvement committee for their review.

(11) Nothing in this chapter limits the right of the secretary and his or her agents to render such advice and to make such recommendations as they deem to be in the best interests of the state and the public.

Sec. 4. RCW 47.46.050 and 1993 c 370 s 5 are each amended to read as follows:

(1) The department may enter into agreements using federal, state, and local financing in connection with the projects, including without limitation, grants, loans, and other measures authorized by section 1012 of ISTEA, and to do such things as necessary and desirable to maximize the funding and financing, including the formation of a revolving loan fund to implement this section.

(2) Agreements entered into under this section shall authorize the private entity to lease the facilities within a designated area or areas from the state and to impose user fees or tolls within the designated area to allow a reasonable rate of return on investment, as established through a negotiated agreement between the state and the private entity. The negotiated agreement shall determine a maximum rate of return on investment, based on project characteristics. If the negotiated rate of return on investment is not affected, the private entity may establish and modify toll rates and user fees.

(3) Agreements may establish "incentive" rates of return beyond the negotiated maximum rate of return on investment. The incentive rates of return shall be designed to provide financial benefits to the affected public jurisdictions and the private entity, given the attainment of various safety, performance, or transportation demand management goals. The incentive rates of return shall be negotiated in the agreement.

(4) Agreements shall require that over the term of the ownership or lease the user fees or toll revenues be applied only to payment of the private entity's capital outlay costs for the project, including project development costs, interest expense, the costs associated with design, construction, operations, toll collection, maintenance and administration of the ((~~facility~~)) project, reimbursement to the state for all costs associated with an election as required under RCW 47.46.030, the costs of project review and oversight, technical and law enforcement services, establishment of a fund to assure the adequacy of maintenance expenditures, and a reasonable return on investment to the private entity. ((~~The use of any excess toll revenues or user fees may be negotiated between the parties.~~

After expiration of the lease of a facility to a private entity, the secretary may continue to charge user fees or tolls for the use of the facility, with these revenues to be used for operations and maintenance of the facility, or to be paid to the local transportation planning agency, or any combination of such uses.)) A negotiated agreement shall not extend the term of the ownership or lease beyond the period of time required for payment of the private entity's capital outlay costs for the project under this subsection.

NEW SECTION. Sec. 5. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately.