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)) shall be
implemented in cooperation ((and)), consultation ((with)),
and with the support of the affected communities and 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 initiatives 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; 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; and require a demonstration that the proposed transportation
facility has the support of the affected communities and local jurisdictions.
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 initiatives 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 project proposals selected prior to September 1, 1994, are terminated by the
public or private sectors, the department shall not select any new projects,
including project proposals submitted to the department prior to September 1,
1994, and designated by the transportation commission as placeholder projects,
after the effective date of this act, until June 30, 1997.
The
department, in consultation with the legislative transportation committee,
shall conduct a program and fiscal audit of the public-private initiatives
program for the biennium ending June 30, 1997. The department shall submit a
progress report to the legislative transportation committee on the program and
fiscal audit by June 30, 1996, with preliminary and final audit reports due
December 1, 1996, and June 30, 1997, respectively.
The
department shall develop and submit a proposed public involvement plan to the
1997 legislature to identify the process for selecting new potential projects
and the associated costs of implementing the plan. The legislature must adopt
the public involvement plan before the department may proceed with any activity
related to project identification and selection. Following legislative
adoption of the public involvement plan, the department is authorized to
implement the plan and to identify potential new projects.
The
public involvement plan for projects selected after June 30, 1997, 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) provide competition among proposers and maximum cost benefits
to users. Prospective projects may include projects identified by the
department or submitted by the private sector.
Projects
that meet the minimum criteria established under this section and the
requirements of the public involvement plan developed by the department and
approved by the legislature shall be submitted to the Washington state
transportation commission for its review. The commission, in turn, shall
submit a list of eligible projects to the legislative transportation committee
for its consideration. Forty-five days after the submission to the legislative
transportation committee of the list of eligible projects, the secretary is
authorized to solicit proposals for the eligible project.
(3)
Prior to entering into agreements with private entities under the requirements
of RCW 47.46.040 for any project proposal selected before September 1, 1994, or
after June 30, 1997, except as provided for in subsections (10) and (11) of
this section, the department shall require an advisory vote as provided under
subsections (4) through (9) of this section.
(4)
In preparing for the advisory vote, the department shall conduct a
comprehensive analysis of traffic patterns and economic impact to define the
geographical boundary of the project area that is 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 shall, at a minimum, undertake: (a) A
comparison of the estimated percentage of residents of communities in the
vicinity of the project and in other communities 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.
(5)(a)
After determining the definition of the affected project area, the department
shall establish a committee comprised of individuals who represent cities and
counties in the affected project area; 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 affected project area; (ii) an elected
official from each county within the affected project area; (iii) two persons
from each county within the affected project area who represent an organization
formed in support of the project, if the organization exists; (iv) two persons
from each county within the affected project area who represent an organization
formed to oppose the project, if the organization exists; and (v) four 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 or county legislative authorities of each city or county within the
affected project area, respectively. The county legislative authority of each
county within the affected project area 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 January 1,
1996, for projects selected prior to September 1, 1994, and no later than
thirty days after the affected project area is defined for projects selected
after June 30, 1997. Vacancies in the membership of the local involvement
committee shall be filled by the appointing authority under (b)(i) through (v)
of this subsection for each position on the committee.
(d)
The local involvement committee shall serve in an advisory capacity to the
department on all matters related to the execution of the advisory vote.
(e)
Members of the local involvement committee serve without compensation and may
not receive subsistence, lodging expenses, or travel expenses.
(6)
The department shall conduct a minimum thirty-day public comment period on the
definition of the geographical boundary of the project area. The department,
in consultation with the local involvement committee, shall make adjustments,
if required, 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 shall set the
boundaries of the affected project area in units no smaller than a precinct as
defined in RCW 29.01.120.
(7)
The department, in consultation with the local involvement committee, shall
develop a description for selected project proposals. After developing the
description of the project proposal, the department shall publish the project
proposal description in newspapers of general circulation for seven calendar
days in the affected project area. Within fourteen calendar days after the
last day of the publication of the project proposal description, the department
shall transmit a copy of the map depicting the affected project area and the
description of the project proposal to the county auditor of the county in
which any portion of the affected project area is located.
(8)
The department shall provide the legislative transportation committee with
progress reports on the status of the definition of the affected project area
and the description of the project proposal.
(9)
Upon receipt of the map and the description of the project proposal, the county
auditor shall, within thirty 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 proposal
using the definition of the geographical boundary of the affected project area
and the project description submitted by the department 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 proposal 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 by the auditor. The
department shall pay the cost of an election held under this section.
(10)
Subsections (4) through (9) of this section shall not apply to project
proposals selected prior to September 1, 1994, that have no organized public
opposition as demonstrated by the submission to the department of original
petitions bearing at least five thousand signatures of individuals opposing the
project, collected and submitted after September 1, 1994, and by thirty
calendar days after the effective date of this act.
(11)
Subsections (4) through (9) of this section shall not apply to project
proposals selected after June 30, 1997, that have no organized public opposition
as demonstrated by the submission to the department of original petitions
bearing at least five thousand signatures of individuals opposing the project,
collected and submitted by ninety calendar days after project selection.
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 public support among: Users of the project,
residents of communities in the vicinity of the project, and residents of
communities impacted by the project.
(b)
The private entity shall conduct a comprehensive public involvement process
that provides, periodically throughout the development and implementation of
the project, users and residents of communities in the affected project area an
opportunity 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.
(c)
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 the
project and in other communities 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.
(d)
In seeking public participation, the private entity shall establish a local
involvement committee or committees comprised of residents of the affected
project area, individuals who represent cities and counties in the affected
project area, organizations formed to support or oppose the project, if such
organizations exist, and users of the project. The private entity shall, at a
minimum, establish a committee as required under the specifications of RCW
47.46.030(5)(b) (ii) and (iii) and appointments to such committee shall be made
no later than thirty days after the project area is defined.
(e)
Local involvement committees 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.
(f)
The department and the private entity shall provide the legislative
transportation committee and local involvement committees with progress reports
on the status of the public involvement process including the results of an
advisory vote, if any occurs.
(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.
