Amend CSHB 1892 (Senate committee printing) as follows:
(1) Add the following appropriately numbered SECTIONS to
the bill and renumber subsequent SECTIONS accordingly:
SECTION ___. Section 223.201(f), Transportation Code, is
amended to read as follows:
(f) The authority to enter into comprehensive development
agreements provided by this section expires on August 31, 2009
[2011].
SECTION ___. Section 370.305(d), Transportation Code, is
amended to read as follows:
(d) This section expires on August 31, 2009 [2011].
SECTION ___. Subtitle G, Title 6, Transportation Code, is
amended by adding Chapter 371 to read as follows:
CHAPTER 371. COMPREHENSIVE DEVELOPMENT AGREEMENTS FOR HIGHWAY
TOLL PROJECTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 371.001. DEFINITIONS. In this chapter:
(1) "Toll project" means a toll project described by
Section 201.001(b), regardless of whether the toll project is:
(A) a part of the state highway system; or
(B) subject to the jurisdiction of the
department.
(2) "Toll project entity" means an entity authorized
by law to acquire, design, construct, operate, and maintain a toll
project, including:
(A) the department, including under Chapter 227;
(B) a regional tollway authority under Chapter
366;
(C) a regional mobility authority under Chapter
370; or
(D) a county under Chapter 284.
[Sections 371.002-371.050 reserved for expansion]
SUBCHAPTER B. OVERSIGHT
Sec. 371.051. ATTORNEY GENERAL REVIEW. A toll project
entity may not enter into a comprehensive development agreement
unless the attorney general reviews the proposed agreement and
determines that it is legally sufficient.
Sec. 371.052. NOTIFICATION TO LEGISLATIVE BUDGET BOARD AND
STATE AUDITOR. (a) Not later than the 10th day after the date of
qualifying or shortlisting private entities to submit detailed
proposals for a toll project, a toll project entity shall provide
the Legislative Budget Board with the names of qualifying or
shortlisted proposers and their team members.
(b) At least 30 days before entering into a comprehensive
development agreement, a toll project entity shall provide the
Legislative Budget Board with:
(1) a copy of the version of the proposed
comprehensive development agreement to be executed;
(2) a copy of the proposal submitted by the apparent
best value proposer; and
(3) a financial forecast prepared by the toll project
entity that includes:
(A) toll revenue the entity projects will be
derived from the project during the planned term of the agreement;
(B) estimated construction costs and operating
expenses; and
(C) the amount of income the entity projects the
private participant in the agreement will realize during the
planned term of the agreement.
(c) Before entering into a comprehensive development
agreement, a toll project entity shall provide the state auditor
with the traffic and revenue report prepared by the toll project
entity or its consultant for the project. The entity may not enter
into the comprehensive development agreement before the 30th day
after the date that the state auditor receives the report so that
the state auditor may review and comment on the report and the
methodology used to develop the report.
(d) Before the comprehensive development agreement is
entered into, financial forecasts and traffic and revenue reports
prepared by or for a toll project entity for the project are
confidential and are not subject to disclosure, inspection, or
copying under Chapter 552, Government Code.
[Sections 371.053-371.100 reserved for expansion]
SUBCHAPTER C. CONTRACT PROVISIONS
Sec. 371.101. TERMINATION FOR CONVENIENCE. (a) A toll
project entity having rulemaking authority by rule and a toll
project entity without rulemaking authority by official action
shall develop a formula for making termination payments to
terminate a comprehensive development agreement under which a
private participant receives the right to operate and collect
revenue from a toll project. A formula must calculate an estimated
amount of loss to the private participant as a result of the
termination for convenience that is based on investments,
expenditures, and rate of return associated with the project.
(b) A formula under Subsection (a) may not include an
estimate of future revenue from the project.
Sec. 371.102. TERMINATION OF CERTAIN COMPREHENSIVE
DEVELOPMENT AGREEMENTS. If a toll project entity elects to
terminate a comprehensive development agreement under which a
private participant receives the right to operate and collect
revenue from a project, the entity may:
(1) if authorized to issue bonds for that purpose,
issue bonds to:
(A) make any applicable termination payments to
the private participant; or
(B) purchase the interest of the private
participant in the comprehensive development agreement or related
property; or
(2) provide for the payment of obligations of the
private participant incurred pursuant to the comprehensive
development agreement.
Sec. 371.103. PROHIBITION AGAINST LIMITING OR PROHIBITING
CONSTRUCTION OF TRANSPORTATION PROJECTS. (a) A comprehensive
development agreement may not contain a provision that limits or
prohibits the construction, reconstruction, expansion,
rehabilitation, operation, or maintenance of a highway or other
transportation project, as that term is defined by Section 370.003,
by the toll project entity or other governmental entity, or by a
private entity under a contract with the toll project entity or
other governmental entity.
(b) Except as provided by Subsection (c), a comprehensive
development agreement may contain a provision authorizing the toll
project entity to compensate the private participant in the
agreement for the loss of toll revenues attributable to the
construction by the entity of a limited access highway project
located within an area that extends up to four miles from either
side of the centerline of the project developed under the
agreement, less the private participant's decreased operating and
maintenance costs attributable to the highway project, if any.
(c) A comprehensive development agreement may not require
the toll project entity to provide compensation for the
construction of:
(1) a highway project contained in the state
transportation plan or a transportation plan of a metropolitan
planning organization in effect on the effective date of the
agreement;
(2) work on or improvements to a highway project
necessary for improved safety, or for maintenance or operational
purposes;
(3) a high occupancy vehicle exclusive lane addition
or other work on any highway project that is required by an
environmental regulatory agency; or
(4) a transportation project that provides a mode of
transportation that is not included in the project that is the
subject of the comprehensive development agreement.
(d) The private participant has the burden of proving any
loss of toll revenue resulting from the construction of a highway
project described by Subsection (b).
(e) A comprehensive development agreement that contains a
provision described by Subsection (b) must require the private
participant to provide compensation to the toll project entity in
the amount of any increase in toll revenues received by the private
participant that is attributable to the construction of a highway
project described by Subsection (b), less the private participant's
increased operation and maintenance costs attributable to the
highway project, if any.
[Sections 371.104-371.150 reserved for expansion]
SUBCHAPTER D. DISCLOSURE OF INFORMATION
Sec. 371.151. DISCLOSURE OF FINANCIAL INFORMATION. (a)
Before a toll project entity enters into a contract for the
construction of a toll project, the entity shall publish in the
manner provided by Section 371.152 information regarding:
(1) project financing, including:
(A) the total amount of debt that has been and
will be assumed to acquire, design, construct, operate, and
maintain the toll project;
(B) a description of how the debt will be repaid,
including a projected timeline for repaying the debt; and
(C) the projected amount of interest that will be
paid on the debt;
(2) whether the toll project will continue to be
tolled after the debt has been repaid;
(3) a description of the method that will be used to
set toll rates;
(4) a description of any terms in the contract
relating to competing facilities, including any penalties
associated with the construction of a competing facility;
(5) a description of any terms in the contract
relating to a termination for convenience provision, including any
information regarding how the value of the project will be
calculated for the purposes of making termination payments;
(6) the initial toll rates, the methodology for
increasing toll rates, and the projected toll rates at the end of
the term of the contract; and
(7) the projected total amount of concession payments.
(b) A toll project entity may not enter into a contract for
the construction of a toll project before the 30th day after the
date the information is first published under Section 371.152.
Sec. 371.152. DISCLOSURE BY PUBLICATION. (a) Information
under Section 371.151 must be published in a newspaper published in
the county in which the toll project is to be constructed once a
week for at least two weeks before the time set for entering into
the contract and in two other newspapers that the toll project
entity may designate.
(b) Instead of the notice required by Subsection (a), if the
toll project entity estimates that the contract involves an amount
less than $300,000, the information may be published in two
successive issues of a newspaper published in the county in which
the project is to be constructed.
(c) If a newspaper is not published in the county in which
the toll project is to be constructed, notice shall be published in
a newspaper published in the county:
(1) nearest the county seat of the county in which the
improvement is to be made; and
(2) in which a newspaper is published.
Sec. 371.153. HEARING. (a) A toll project entity shall
hold a public hearing on the information published under Section
371.152 not later than the 10th day after the date the information
is first published and not less than 10 days before the entity
enters into the contract.
(b) A hearing under this section must be held in the county
seat of the county in which the toll project is located.
(c) A hearing under this section must include a formal
presentation and a mechanism for responding to comments and
questions.
SECTION ___. (a) Section 223.203, Transportation Code, is
amended by adding Subsection (f-1) to read as follows:
(f-1) A private entity responding to a request for detailed
proposals issued under Subsection (f) may submit alternative
proposals based on comprehensive development agreements having
different terms, with the alternative terms in multiples of 10
years, ranging from 10 years to 40 years or any lesser term provided
in a comprehensive development agreement.
(b) Section 223.208(h), Transportation Code, is amended to
read as follows:
(h) A [Except as provided by this section, a] comprehensive
development agreement with a private participant that includes the
collection by the private participant of tolls for the use of a toll
project may be for a term not longer than 40 [50] years. The
comprehensive development agreement must contain [may be for a term
not longer than 70 years if the agreement:
[(1) contains] an explicit mechanism for setting the
price for the purchase by the department of the interest of the
private participant in the comprehensive development agreement and
related property, including any interest in a highway or other
facility designed, developed, financed, constructed, operated, or
maintained under the agreement[; and
[(2) outlines the benefit the state will derive from
having a term longer than 50 years].
(c) Section 227.023(f), Transportation Code, is amended to
read as follows:
(f) A contract with a private entity that includes the
collection by the private entity of a fee for the use of a facility
may not be for a term longer than 40 [50] years. The contract must
contain an explicit mechanism for setting the price for the
purchase by the department of the interest of the private
participant in the contract and related property, including any
interest in a highway or other facility designed, developed,
financed, constructed, operated, or maintained under the contract.
(d) Section 370.302(i), Transportation Code, is amended to
read as follows:
(i) An agreement with a private entity that includes the
collection by the private entity of tolls for the use of a
transportation project may not be for a term longer than 40 [50]
years. The agreement must contain an explicit mechanism for
setting the price for the purchase by the authority of the interest
of the private participant in the contract and related property,
including any interest in a highway or other facility designed,
developed, financed, constructed, operated, or maintained under
the agreement.
(e) The changes in law made by this section apply only to a
contract entered into on or after the effective date of this Act. A
contract entered into before the effective date of this Act is
governed by the law in effect when the contract was entered into,
and the former law is continued in effect for that purpose.
SECTION ___. Subchapter A, Chapter 227, Transportation
Code, is amended by adding Sections 227.005, 227.006, 227.007, and
227.008 to read as follows:
Sec. 227.005. PUBLIC ACCESS TO INFORMATION. (a) The
department shall:
(1) seek to achieve transparency in the department's
functions related to the Trans-Texas Corridor by providing, to the
greatest extent possible under the public information law (Chapter
552, Government Code) and other statutes governing the access to
records, public access to information collected, assembled, or
maintained by the department relating to the Trans-Texas Corridor;
(2) make public in a timely manner all documents,
plans, and contracts related to the Trans-Texas Corridor; and
(3) make public in a timely manner all updates to the
master development plan for the Trans-Texas Corridor, including
financial plans.
(b) The department shall send electronic versions of all
updates to the master development plan for the Trans-Texas Corridor
to the Governor's Office of Budget and Planning, the Senate Finance
Committee, the House Appropriations Committee, the Legislative
Budget Board, the state auditor's office, and the comptroller in a
timely manner.
Sec. 227.006. POSTING INFORMATION RELATING TO TRANS-TEXAS
CORRIDOR ON DEPARTMENT'S WEBSITE. (a) The department shall post
on the department's Internet website, in a timely manner, the costs
incurred by the department in connection with the financing,
design, construction, maintenance, or operation of the Trans-Texas
Corridor.
(b) Not later than the 10th day after the date the
department enters into a contract relating to the Trans-Texas
Corridor, the department shall post a copy of the contract on the
department's Internet website.
SECTION ___. Section 223.203(m), Transportation Code, is
amended to read as follows:
(m) The department may [shall] pay an unsuccessful private
entity that submits a responsive proposal in response to a request
for detailed proposals under Subsection (f) a stipulated amount in
exchange for the work product contained in that proposal. A [The]
stipulated amount must be stated in the request for proposals and
may not exceed the value of any work product contained in the
proposal that can, as determined by the department, be used by the
department in the performance of its functions. The use by the
department of any design element contained in an unsuccessful
proposal is at the sole risk and discretion of the department and
does not confer liability on the recipient of the stipulated amount
under this section. After payment of the stipulated amount:
(1) the department owns with the unsuccessful proposer
jointly the rights to, and may make use of any work product
contained in, the proposal, including the technologies,
techniques, methods, processes, ideas, and information contained
in the project design; and
(2) the use by the unsuccessful proposer of any
portion of the work product contained in the proposal is at the sole
risk of the unsuccessful proposer and does not confer liability on
the department.
SECTION ___. Section 370.306(m), Transportation Code, is
amended to read as follows:
(m) An authority may [shall] pay an unsuccessful private
entity that submits a response to a request for detailed proposals
under Subsection (f) a stipulated amount of the final contract
price for any costs incurred in preparing that proposal. A [The]
stipulated amount must be stated in the request for proposals and
may not exceed the value of any work product contained in the
proposal that can, as determined by the authority, be used by the
authority in the performance of its functions. The use by the
authority of any design element contained in an unsuccessful
proposal is at the sole risk and discretion of the authority and
does not confer liability on the recipient of the stipulated amount
under this subsection. After payment of the stipulated amount:
(1) the authority owns the exclusive rights to, and
may make use of any work product contained in, the proposal,
including the technologies, techniques, methods, processes, and
information contained in the project design; and
(2) the work product contained in the proposal becomes
the property of the authority.
(2) In SECTION 1 of the bill, in proposed Section 223.210,
Transportation Code (page 1, between lines 53 and 54), insert the
following:
(c-1) Subsection (b) does not apply to a comprehensive
development agreement in connection with a project associated with
any portion of the Loop 9 project that is located in a nonattainment
air quality area as designated by the United States Environmental
Protection Agency that includes two adjacent counties that each
have a population of one million or more.
(3) In SECTION 1 of the bill, in proposed Section 223.210,
Transportation Code (page 2, between lines 22 and 23), insert the
following:
(c-3) Subsection (c) does not apply to any toll project or
managed lane facility project located on any portion of U.S.
Highway 281 that is located in a county with a population of more
than one million in which more than 80 percent of the population
lives in a single municipality.
(4) In SECTION 12 of the bill, in the introductory language
(page 12, line 56), strike "366.037 and 366.038" and substitute
"366.037, 366.038, and 366.039".
(5) In SECTION 12 of the bill, at the end of proposed Section
366.038, Transportation Code (page 14, between lines 13 and 14),
insert the following:
(h) A local toll project entity that exercises the option
under Subsection (b) must begin the environmental phase of the
project within 18 months of the action taken by the entity under
Subsection (b).
Sec. 366.039. USE OF STATE HIGHWAY ALIGNMENT, RIGHT-OF-WAY,
AND ACCESS. (a) Notwithstanding any other law, an authority may
use any authority property, state highway right-of-way, or access
to the state highway system, regardless of when or how the property,
right-of-way, or access is acquired. The department or the
commission may require the authority to comply with any covenant,
condition, restriction, or limitation that affects state highway
right-of-way, but may not:
(1) adopt rules or establish policies that have the
effect of denying the authority the use of the right-of-way or
access that the authority has determined to be necessary or
convenient for the construction, acquisition, improvement,
operation, maintenance, or pooling of a project under this chapter;
or
(2) require the authority to pay for the use of the
right-of-way or access, except to reimburse the commission or
department for actual costs incurred or to be incurred by a third
party, including the federal government, as a result of that use by
the authority.
(b) If a project of an authority under this chapter includes
the proposed use of improved state highway right-of-way, the
authority and the commission or the department must enter into an
agreement that includes reasonable terms to accommodate that use of
the right-of-way by the authority and to protect the interests of
the commission and the department in the use of the right-of-way for
operations of the department, including public safety and
congestion mitigation on the improved right-of-way.
(c) Notwithstanding any other law, the commission and the
department are not liable for any damages that result from an
authority's use of state highway right-of-way or access to the
state highway system under this chapter, regardless of the legal
theory, statute, or cause of action under which liability is
asserted.