                                 CODE OF VIRGINIA

APPROVAL BY THE RESPONSIBLE PUBLIC ENTITY (§ 33.2-1803)

A. The 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 and/or operate 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 such facility or facilities and all proposed
   interconnections with other transportation facilities;

   3. The proposed date for development and/or operation 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 locality or public entity;

   6. A list of all permits and approvals required for developing and/or
   operating improvements to the transportation facility or facilities from
   local, state, or federal agencies and a projected schedule for obtaining such
   permits and approvals;

   7. A list of public utility&#8217;s, locality&#8217;s, or political
   subdivision&#8217;s 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&#8217;s general plans for
   developing and/or operating 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&#8217;s proposal will address the
   needs identified in the appropriate state, regional, or local transportation
   plan by improving safety, reducing congestion, increasing capacity, enhancing
   economic efficiency, or any combination thereof;

   11. A statement of the risks, liabilities, and responsibilities to be
   transferred, assigned, or assumed by the private entity for the development
   and/or operation of the transportation facility, including revenue risk and
   operations and maintenance; and

   12. Such additional material and information as 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 and/or operation of transportation facilities subject to the
following:

   1. For transportation facilities where the Department of Transportation, the
   Virginia Passenger Rail Authority, or the Department of Rail and Public
   Transportation is the responsible public entity, the Transportation
   Public-Private Partnership Steering Committee established pursuant to &#xA7;
   33.2-1803.2 has determined that moving forward with the development and/or
   operation of the facility pursuant to this article serves the best interest of
   the public.

   2. A finding of public interest pursuant to &#xA7; 33.2-1803.1 has been issued
   by the responsible public entity.

   3. The responsible public entity shall not charge a fee to cover the costs of
   processing, reviewing, and evaluating proposals received in response to such
   requests.

C. The responsible public entity may grant approval of the development and/or
operation of the transportation facility or facilities as a qualifying
transportation facility if the responsible public entity determines that it is
in the best interest of the public. The responsible public entity may determine
that the development and/or operation of the transportation facility or
facilities as a qualifying transportation facility serves the best interest of
the public if:

   1. The private entity can develop and/or operate the transportation facility
   or facilities with a public contribution amount that is less than the maximum
   public contribution determined pursuant to subsection A of &#xA7;
   33.2-1803.1:1 for transportation facilities where the Department of
   Transportation, the Virginia Passenger Rail Authority, or the Department of
   Rail and Public Transportation is the responsible public entity;

   2. There is a public need for the transportation facility or facilities the
   private entity proposes to develop and/or operate as a qualifying
   transportation facility and for transportation facilities where the Department
   of Transportation or the Department of Rail and Public Transportation is the
   responsible public entity, such facility or facilities meet a need included in
   the plan developed pursuant to &#xA7; 33.2-353;

   3. The plan for the development and/or operation of the transportation
   facility or facilities is anticipated to have significant benefits as
   determined pursuant to subdivision B 1 of &#xA7; 33.2-1803.1;

   4. The private entity&#8217;s plans will result in the timely development
   and/or operation of the transportation facility or facilities or their more
   efficient operation; and

   5. The risks, liabilities, and responsibilities transferred, assigned, or
   assumed by the private entity provide sufficient benefits to the public to not
   proceed with the development and/or operation of the transportation facility
   through other means of procurement available to the responsible public entity.
   				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 shall not enter into a comprehensive agreement
unless the chief executive officer of the responsible public entity certifies in
writing to the Governor and the General Assembly that:

   1. The finding of public interest issued pursuant to &#xA7; 33.2-1803.1 is
   still valid;

   2. The transfer, assignment, and assumption of risks, liabilities, and
   permitting responsibilities and the mitigation of revenue risk by the private
   sector have not materially changed since the finding of public interest was
   issued pursuant to &#xA7; 33.2-1803.1; and

   3. The public contribution requested by the private entity does not exceed the
   maximum public contribution determined pursuant to subsection A of &#xA7;
   33.2-1803.1:1.
   				Changes to the project scope that do not impact the assignment of risks or
   liabilities or the mitigation of revenue risk shall not be considered material
   changes to the finding of public interest, provided that such changes were
   presented in a public meeting to the Commonwealth Transportation Board, other
   state board, or the governing body of a locality, as appropriate.

E. 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 reasonable attorney 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, B, C, and D. Such guidelines shall establish a specific schedule
for review of the proposal by the responsible public entity, 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, the process for receipt and review of competing proposals, and the
type and amount of information that is necessary for adequate review of
proposals in each stage of review. For qualifying transportation facilities that
have approved or pending state and federal environmental clearances, have
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 and/or operate the qualifying transportation facility
in accordance with the purpose of this chapter, the guidelines shall provide for
a prioritized documentation, review, and selection process.

F. The approval of the responsible public entity shall be subject to the private
entity&#8217;s entering into an interim agreement or a comprehensive agreement
with the responsible public entity. For any project with an estimated
construction cost of over $50 million, the responsible public entity also shall
require the private entity to pay the costs for an independent audit of any and
all traffic and cost estimates associated with the private entity&#8217;s
proposal, as well as a review of all public costs and potential liabilities to
which taxpayers could be exposed (including improvements to other transportation
facilities that may be needed as a result of the proposal, failure by the
private entity to reimburse the responsible public entity for services provided,
and potential risk and liability in the event the private entity defaults on the
comprehensive agreement or on bonds issued for the project). This independent
audit shall be conducted by an independent consultant selected by the
responsible public entity, and all such information from such review shall be
fully disclosed.

G. In connection with its approval of the development and/or operation 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 such date.

H. 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 pursuant to an agreement
under subdivision 11 of &#xA7; 2.2-3705.6.

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

HISTORY: 1994, c. 855, § 56-560; 1995, c. 647; 2003, c. 289; 2005, cc. 504,
562;  2006, c. 922; 2008, c. 296; 2014, cc. 474, 805; 2015, c. 612; 2017, cc.
539, 551; 2020, cc. 1230, 1275.