This website will be unavailable from Friday, April 26, 2024 at 6:00 p.m. through Monday, April 29, 2024 at 7:00 a.m. due to data center maintenance.
Amend CSSB 792 by striking all below the enacting clause and
substituting:
ARTICLE 1. TERM OF CERTAIN TOLL OR FEE COLLECTION
CONTRACTS WITH PRIVATE ENTITIES
SECTION 1.01. 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 from the later of the
date of final acceptance of the project or the start of revenue
operations by the private entity to 50 years from the later of the
date of final acceptance of the project or the start of revenue
operations by the private entity, not to exceed a total term of 52
years or any lesser term provided in a comprehensive development
agreement.
SECTION 1.02. 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 50 years from the later of
the date of final acceptance of the project or the start of revenue
operations by the private participant, not to exceed a total term of
52 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].
SECTION 1.03. 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 50 years from the later of the date
of final acceptance of the project or the start of revenue
operations by the private entity, not to exceed a total term of 52
years. The contract must contain an explicit mechanism for setting
the price for the purchase by the department of the interest of the
private entity 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.
SECTION 1.04. 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 50 years
from the later of the date of final acceptance of the project or the
start of revenue operations by the private entity, not to exceed a
total term of 52 years. The agreement must contain an explicit
mechanism for setting the price for the purchase by the authority of
the interest of the private entity 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.
SECTION 1.05. The changes in law made by this article 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.
ARTICLE 2. PAYMENTS TO UNSUCCESSFUL PROPOSERS FOR COMPREHENSIVE
DEVELOPMENT AGREEMENTS
SECTION 2.01. 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 2.02. 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.
ARTICLE 3. MORATORIUM ON CERTAIN TERMS IN COMPREHENSIVE
DEVELOPMENT AGREEMENTS OR SALE OF TOLL PROJECTS
SECTION 3.01. Subchapter E, Chapter 223, Transportation
Code, is amended by adding Section 223.210 to read as follows:
Sec. 223.210. MORATORIUM ON CERTAIN TERMS IN COMPREHENSIVE
DEVELOPMENT AGREEMENTS OR SALE OF TOLL PROJECTS. (a) In this
section:
(1) "Toll project" means a toll project described by
Section 201.001(b), regardless of whether the toll project:
(A) is a part of the state highway system; or
(B) is subject to the jurisdiction of the
department.
(2) "Toll project entity" means a public entity
authorized by law to acquire, design, construct, finance, operate,
or maintain a toll project, including:
(A) the department;
(B) a regional tollway authority;
(C) a regional mobility authority; or
(D) a county.
(b) A comprehensive development agreement entered into with
a private participant by a toll project entity on or after May 1,
2007, for the acquisition, design, construction, financing,
operation, or maintenance of a toll project may not contain a
provision permitting the private participant to operate the toll
project or collect revenue from the toll project, regardless of
whether the private participant operates the toll project or
collects the revenue itself or engages a subcontractor or other
entity to operate the toll project or collect the revenue.
(c) Subsection (b) does not apply to a comprehensive
development agreement in connection with:
(1) a project associated with the highway designated
as the Trinity Parkway in the City of Dallas; or
(2) a project:
(A) that includes one or more managed lane
facilities to be added to an existing controlled-access highway;
(B) the major portion of which is located in a
nonattainment or near nonattainment air quality area as designated
by the United States Environmental Protection Agency; and
(C) for which the department has issued a request
for qualifications before May 1, 2007.
(d) 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.
(e) Subsection (b) does not apply to a comprehensive
development agreement in connection with a project associated with
any portion of the State Highway 99 project.
(f) Subsection (b) does not apply to a comprehensive
development agreement in connection with a project associated with
the portion of Interstate Highway 69 project south of Interstate
Highway 37.
(g) Subsection (b) does not apply to a comprehensive
development agreement in connection with the State Highway 161
project in Dallas County.
(h) Subsection (b) does not apply to a project described by
this subsection. Notwithstanding the TxDOT/NTTA Regional Protocol
entered into between the department and the North Texas Tollway
Authority and approved on August 10, 2006, by the tollway authority
and on August 24, 2006, by the department, the department shall
allow a regional tollway authority under Chapter 366 to develop a
project in connection with State Highway 121 if:
(1) before the commission or the department enters
into a contract for the financing, construction, or operation of
the project with a private participant, the authority was granted
the ability to finance, construct, or operate, as applicable, the
portion of the toll project located in the boundaries of the
authority;
(2) the authority was granted a period of 60 days from
March 26, 2007, to submit a commitment to the metropolitan planning
organization which is determined to be equal to or greater than any
other commitment submitted prior to March 26, 2007; and
(3) the financial value of the commitment is
determined to be equal to or greater value than any other commitment
submitted before March 26, 2007.
(i) Notwithstanding Subsection (c), Subsection (b) applies
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.
(j) For purposes of Subsection (c)(2), "managed lane
facility" means a facility that increases the efficiency of a
controlled-access highway through various operational and design
actions and that allows lane management operations to be adjusted
at any time. The term includes high-occupancy vehicle lanes,
single-occupant vehicle express lanes, tolled lanes, priced lanes,
truck lanes, bypass lanes, dual use facilities, or any combination
of those facilities.
(k) The department may not enter into a comprehensive
development agreement in connection with a project described by
Subsection (c)(2) unless the commissioners court of the county in
which the majority of the project is located passes a resolution in
support of the agreement that states that the commissioners court:
(1) acknowledges that the comprehensive development
agreement may contain penalties for the construction of future
competing transportation projects that are acquired or constructed
during the term of the comprehensive development agreement; and
(2) knowing of those potential penalties, agrees that
the department should execute the comprehensive development
agreement.
(l) On or after the effective date of this section, a toll
project entity may not sell or enter into a contract to sell a toll
project of the entity to a private entity.
(m) A legislative study committee is created. The committee
is composed of nine members, appointed as follows:
(1) three members appointed by the lieutenant
governor;
(2) three members appointed by the speaker of the
house of representatives; and
(3) three members appointed by the governor.
(n) The legislative study committee shall select a
presiding officer from among its members and conduct public
hearings and study the public policy implications of including in a
comprehensive development agreement entered into by a toll project
entity with a private participant in connection with a toll project
a provision that permits the private participant to operate and
collect revenue from the toll project. In addition, the committee
shall examine the public policy implications of selling an existing
and operating toll project to a private entity.
(o) Not later than December 1, 2008, the legislative study
committee shall:
(1) prepare a written report summarizing:
(A) any hearings conducted by the committee;
(B) any legislation proposed by the committee;
(C) the committee's recommendations for
safeguards and protections of the public's interest when a contract
for the sale of a toll project to a private entity is entered into;
and
(D) any other findings or recommendations of the
committee; and
(2) deliver a copy of the report to the governor, the
lieutenant governor, and the speaker of the house of
representatives.
(p) On December 31, 2008, the legislative study committee
created under this section is abolished.
(q) This section expires September 1, 2009.
(r) Subsection (b) does not apply to a project that is
located in a county with a population of 575,000 or more and
adjacent to an international border.
ARTICLE 4. COMPREHENSIVE DEVELOPMENT AGREEMENT SUNSET DATE
SECTION 4.01. Section 223.201, Transportation Code, is
amended by amending Subsection (f) and adding Subsections (g) and
(h) to read as follows:
(f) Except as provided by Subsections (g) and (h), the [The]
authority to enter into comprehensive development agreements
provided by this section expires on August 31, 2009 [2011].
(g) Subsection (f) does not apply to a comprehensive
development agreement that does not grant a private entity a right
to finance a toll project or to a comprehensive development
agreement in connection with a project:
(1) that includes one or more managed lane facilities
to be added to an existing controlled-access highway;
(2) the major portion of which is located in a
nonattainment or near-nonattainment air quality area as designated
by the United States Environmental Protection Agency; and
(3) for which the department has issued a request for
qualifications before May 1, 2007.
(h) The authority to enter into a comprehensive development
agreement for a project exempted from Subsection (f) or Section
223.210(b) expires August 31, 2011.
SECTION 4.02. Section 370.305, Transportation Code, is
amended by amending Subsection (d) and adding Subsections (e) and
(f) to read as follows:
(d) Except as provided by Subsections (e) and (f), the
authority to enter into comprehensive development agreements under
this [This] section expires on August 31, 2009 [2011].
(e) Subsection (d) does not apply to a comprehensive
development agreement that does not grant a private entity a right
to finance a toll project or a comprehensive development agreement
in connection with a project:
(1) that includes one or more managed lane facilities
to be added to an existing controlled-access highway;
(2) the major portion of which is located in a
nonattainment or near-nonattainment air quality area as designated
by the United States Environmental Protection Agency; and
(3) for which the department has issued a request for
qualifications before the effective date of this subsection.
(f) The authority to enter into a comprehensive development
agreement for a project exempted from Subsection (d) or Section
223.210(b) expires August 31, 2011.
ARTICLE 5. PUBLIC ACCESS TO TRANS-TEXAS CORRIDOR INFORMATION
SECTION 5.01. Subchapter A, Chapter 227, Transportation
Code, is amended by adding Sections 227.005 and 227.006 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.
ARTICLE 6. USE OF CERTAIN CONTRACT PAYMENTS AND OTHER REVENUE
SECTION 6.01. Section 228.0055, Transportation Code, is
amended to read as follows:
Sec. 228.0055. USE OF CONTRACT PAYMENTS AND OTHER
REVENUE. (a) Payments, project savings, refinancing dividends,
and any other revenue received by the commission or the department
under a comprehensive development agreement shall [may] be used by
the commission or the department to finance the construction,
maintenance, or operation of [a] transportation projects [project]
or air quality projects [project] in the region.
(b) The department shall allocate the distribution of funds
to department districts in the region that are located in the
boundaries of the metropolitan planning organization in which the
project that is the subject of the comprehensive development
agreement is located based on the percentage of toll revenue from
users from each department district of the project. To assist the
department in determining the allocation, each entity responsible
for collecting tolls for a project shall calculate on an annual
basis the percentage of toll revenue from users of the project from
each department district based on the number of recorded electronic
toll collections.
(c) The commission or the department may not:
(1) revise the formula as provided in the department's
unified transportation program, or its successor document, in a
manner that results in a decrease of a department district's
allocation because of a payment under Subsection (a); or
(2) take any other action that would reduce funding
allocated to a department district because of payments received
under a comprehensive development agreement.
(d) A metropolitan planning organization may not take any
action that would reduce distribution of funds or other resources
to a department district because of the use of a payment or other
revenue under Subsection (a).
ARTICLE 7. TOLL PROJECTS IN TERRITORY OF LOCAL OR REGIONAL TOLL
PROJECT ENTITY
SECTION 7.01. Subchapter A, Chapter 228, Transportation
Code, is amended by adding Sections 228.011, 228.0111, and 228.012
to read as follows:
Sec. 228.011. TOLL PROJECTS IN CERTAIN COUNTIES. (a) This
section applies only to a county acting under Chapter 284 and the
development, construction, and operation of all or a portion of any
of the following toll projects, a component of that project, or the
functional equivalent of that project:
(1) Beltway 8 Tollway East, between US 59 North and US
90 East;
(2) Hardy Downtown Connector, consisting of the
proposed direct connection from the Hardy Toll Road southern
terminus at Loop 610 to downtown Houston;
(3) State Highway 288, between US 59 and Grand Parkway
South (State Highway 99);
(4) US 290 Toll Lanes, between IH 610 West and the
Grand Parkway Northwest (State Highway 99);
(5) Fairmont Parkway East, between Beltway 8 East and
Grand Parkway East (State Highway 99);
(6) South Post Oak Road Extension, between IH 610
South and near the intersection of Beltway 8 and Hillcroft in the
vicinity of the Fort Bend Parkway Tollway;
(7) Westpark Toll Road Phase II, between Grand Parkway
(State Highway 99) and FM 1623; and
(8) Fort Bend Parkway, between State Highway 6 and the
Brazos River.
(b) The county is the entity with the primary responsibility
for the financing, construction, and operation of a toll project
located in the county. A county may develop, construct, and operate
a project described in Subsection (a) at any time, regardless of
whether it receives a first option notice from the commission or the
department under Subsection (e).
(b-1) Consistent with federal law, the department shall
assist the county in the financing, construction, and operation of
a toll project in the county by allowing the county to use state
highway right-of-way owned by the department and to access the
state highway system. The commission or the department may not
require the county to pay for the use of the right-of-way or access,
except to reimburse the department as provided by this subsection.
The county shall pay an amount to reimburse the department for the
department's actual costs to acquire the right-of-way. If the
department cannot determine that amount, the amount shall be
determined based on the average historical right-of-way
acquisition values for right-of-way located in proximity to the
project on the date of original acquisition of the right-of-way.
Money received by the department under this subsection shall be
deposited in the state highway fund and used in the department
district in which the project is located.
(c) The department and the county must enter into an
agreement that includes reasonable terms to accommodate the use of
the right-of-way by the county 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 right-of-way.
(d) Subsection (b) does not limit the authority of the
commission or the department to participate in the cost of
acquiring, constructing, maintaining, or operating a project of the
county under Chapter 284.
(e) Before the department may enter into a contract for the
financing, construction, or operation of a proposed or existing
toll project any part of which is located in the county, the
commission or department shall provide the county the first option
to finance, construct, or operate, as applicable, the portion of
the toll project located in the county:
(1) on terms agreeable to the county; and
(2) in a manner determined by the county to be
consistent with the practices and procedures by which the county
finances, constructs, or operates a project.
(f) A county's right to exercise the first option under
Subsection (e) is effective for six months after the date of the
receipt by the county of written notice from the commission or the
department meeting the requirements of Subsection (e) and
describing in reasonable detail the location of the toll project, a
projected cost estimate, sources and uses of funds, and a
construction schedule. If a county exercises the first option with
respect to a toll project, the county must enter into one or more
contracts for the financing, construction, or operation of the toll
project within two years after the date on which all environmental
requirements necessary for the development of the project are
secured and all legal challenges to development are concluded. A
contract may include agreements for design of the project,
acquisition of right-of-way, and utility relocation. If the county
does not enter into a contract during the two-year period, the
commission or the department may enter into a contract for the
financing, construction, or operation of the toll project with a
different entity.
(g) An agreement entered into by the county and the
department in connection with a project under Chapter 284 that is
financed, constructed, or operated by the county and that is on or
directly connected to a highway in the state highway system does not
create a joint enterprise for liability purposes.
(h) If the county approves, the commission may remove any
right-of-way to be used by a county under this section from the
state highway system. If the right-of-way used by a county under
this section remains part of the state highway system, the county
must comply with department design and construction standards.
(i) Notwithstanding an action of a county taken under this
section, the commission or department may take any action that is
necessary in its reasonable judgment to comply with any federal
requirement to enable this state to receive federal-aid highway
funds.
(j) Notwithstanding any other law, the commission and the
department are not liable for any damages that result from a
county's use of state highway right-of-way or access to the state
highway system under this section, regardless of the legal theory,
statute, or cause of action under which liability is asserted.
Sec. 228.0111. TOLL PROJECTS OF LOCAL TOLL PROJECT
ENTITIES. (a) In this section:
(1) "Local toll project entity" means:
(A) a regional tollway authority under Chapter
366;
(B) a regional mobility authority under Chapter
370; or
(C) a county acting under Chapter 284.
(2) "Market valuation" means the valuation of a toll
project that:
(A) is based on the terms and conditions
established mutually by a local toll project entity and the
department for the development, construction, and operation of a
toll project, including the initial toll rate and the toll rate
escalation methodology; and
(B) takes into account a traffic and revenue
study of the toll project, an agreed project scope, market
research, the estimated cost to construct, maintain, and operate
the project, and other information determined appropriate by the
local toll project entity and the department.
(3) "Region" has the meaning assigned by Section
228.001, except that the region of a county acting under Chapter 284
is composed of that county and the counties that are contiguous to
that county.
(4) "Toll project subaccount" means a subaccount
created under Section 228.012.
(b) This section does not apply to a toll project described
in Section 228.011(a).
(c) A local toll project entity is the entity with primary
responsibility for the financing, construction, and operation of a
toll project located within its boundaries.
(d) Subsection (c) does not limit the authority of the
commission or the department to participate in the cost of
acquiring, constructing, maintaining, or operating a toll project
of a local toll project entity.
(e) Except as provided in this subsection, if a local toll
project entity or the department determines that a toll project
located within the boundaries of the local toll project entity
should be developed, constructed, and operated as a toll project,
the local toll project entity and the department mutually shall
agree on the terms and conditions for the development,
construction, and operation of the toll project, including the
initial toll rate and the toll rate escalation methodology. The
terms and conditions for the procurement and operation of the State
Highway 99 project shall be approved by the metropolitan planning
organization in which the project is located.
(f) After agreeing on the terms and conditions for a toll
project under Subsection (e), or after metropolitan planning
organization approval of the terms and conditions for the State
Highway 99 project, the local toll project entity and the
department mutually shall determine which entity, including a third
party under contract with the local toll project entity or the
department, will develop a market valuation of the toll project
that is based on the terms and conditions established under
Subsection (e). The department and the local toll project entity
have 90 days after the date of the receipt of a final draft version
of the market valuation designated as "complete; subject to
approval by the Texas Department of Transportation and (name of
local toll project entity)" to mutually approve the market
valuation included in the draft version or, in the alternative,
negotiate and agree on a different market valuation. If the
department and the local toll project entity are unable to agree on
a market valuation within the 90-day period, the market valuation
in the draft version is considered to be final for purposes of this
section and mutually approved on the last day of that period.
(f-1) The department and a local toll project entity may
agree to waive the requirement to develop a market valuation under
this section.
(g) A local toll project entity has the first option to
develop, finance, construct, and operate a toll project under the
terms and conditions established under Subsection (e). A local
toll project entity, other than a regional mobility authority under
Chapter 370, has six months after the date that the market valuation
is mutually approved under Subsection (f) to decide whether to
exercise the option. In an area where a toll project is operated by
a regional mobility authority under Chapter 370, after the market
valuation is final under Subsection (f), the metropolitan planning
organization for the region in which the project is located shall
determine whether the toll project should be developed using the
business terms incorporated in the market valuation. If the
metropolitan planning organization determines that the toll
project should be developed using the business terms in the market
valuation, the regional mobility authority has six months after the
date the metropolitan planning organization decides whether to
exercise the option to develop the project. If a local toll project
entity exercises the option with respect to a toll project under
this subsection, the local toll project entity, after exercising
the option and within two years after the date on which all
environmental requirements necessary for the development of the
toll project are secured and all legal challenges to development
are concluded, must:
(1) enter into a contract for the construction of the
toll project; and
(2) either:
(A) commit to make a payment into a toll project
subaccount in an amount equal to the value of the toll project as
determined by the market valuation, to be used by the department to
finance the construction of additional transportation projects in
the region in which the toll project is located;
(B) commit to construct, within the period agreed
to by the local toll project entity and the department, additional
transportation projects in the region in which the toll project is
located with estimated construction costs equal to the market
valuation of the toll project; or
(C) for a regional mobility authority under
Chapter 370, commit to using, for a period to be agreed upon by the
department and the authority, all surplus revenue from the toll
project for the purposes authorized by Section 370.174(b) in an
amount equal to the valuation of the project.
(h) If a local toll project entity exercises the option with
respect to a toll project under Subsection (g) and has not begun the
environmental review of the project, the local toll project entity
shall begin the environmental review within six months of
exercising the option.
(i) If a local toll project entity does not exercise the
option to develop, finance, construct, and operate a toll project
under Subsection (g), or does not enter into a contract for the
construction of the project and make a commitment described in
Subsection (g)(2) within the two-year period prescribed in
Subsection (g), the department has the option to develop, finance,
construct, and operate the toll project under the terms and
conditions agreed to under Subsection (e). The department has two
months after the date the local toll project entity fails to
exercise its option or enter into a construction contract and make a
commitment described in Subsection (g)(2) to decide whether to
exercise its option. If the department exercises its option with
respect to a toll project under this subsection, the department,
after exercising the option and within two years after the date on
which all environmental requirements necessary for the development
of the project are secured and all legal challenges to such
development are concluded, must:
(1) enter into a contract for the construction of the
toll project; and
(2) either:
(A) commit to make a payment into the toll
project subaccount in an amount equal to the value of the toll
project as determined by the market valuation, to be used by the
department to finance the construction of additional
transportation projects in the region in which the toll project is
located; or
(B) commit to construct, within the period agreed
to by the local toll project entity and the department, additional
transportation projects in the region in which the toll project is
located with estimated construction costs equal to the market
valuation of the toll project.
(j) If the department does not exercise the option to
develop, finance, construct, and operate a toll project under
Subsection (i), or does not enter into a contract for the
construction of the project and make a commitment described in
Subsection (i)(2) within the two-year period prescribed in
Subsection (i), the local toll project entity and the department
may meet again for the purpose of agreeing on revised terms and
conditions for the development, construction, and operation of the
toll project, and the local toll project entity and the department
shall follow the process prescribed in Subsections (f)-(i).
(k) Consistent with federal law, the commission and the
department shall assist a local toll project entity in the
development, financing, construction, and operation of a toll
project for which the local toll project entity has exercised its
option to develop, finance, construct, and operate the project
under Subsection (g) by allowing the local toll project entity to
use state highway right-of-way and to access the state highway
system as necessary to construct and operate the toll project.
Notwithstanding any other law, the toll project entity and the
commission may agree to remove the project from the state highway
system and transfer ownership to the local toll project entity. The
commission or the department may not require a local toll project
entity to pay for the use of the right-of-way or access, except to
reimburse the department for actual costs incurred or to be
incurred by the department that are owed to a third party, including
the federal government, as a result of that use by the local toll
project entity. If a local toll project entity exercises its option
to develop, construct, and operate a toll project under this
section, the following shall be deducted from the amount of the toll
project entity commitment under Subsection (g)(2):
(1) an amount equal to the amount reimbursed under
this subsection, if any; and
(2) with respect to a county operating under Chapter
284, an amount equal to the costs of any road, street, or highway
project undertaken by the county under Section 284.0031 before the
acceptance of the market valuation, if the county requests a
deduction and specifies in reasonable detail a description and cost
of the project and the department agrees that any such road, street,
or highway project constitutes an additional transportation
project under Subsection (g)(2)(B).
(l) A local toll project entity shall enter into an
agreement with the department for any project for which the entity
has exercised its option to develop, finance, construct, and
operate the project under Subsection (g) and for which the entity
intends to use state highway right-of-way. An agreement entered
into under this subsection must contain provisions necessary to
ensure that the local toll project entity's construction,
maintenance, and operation of the project complies with the
requirements of applicable federal and state law.
(m) Notwithstanding any other law, the commission and the
department are not liable for any damages that result from a local
toll project entity's use of state highway right-of-way or access
to the state highway system under this section, regardless of the
legal theory, statute, or cause of action under which liability is
asserted.
(n) An agreement entered into by a local toll project entity
and the department in connection with a toll project that is
financed, constructed, or operated by the local toll project entity
and that is on or directly connected to a highway in the state
highway system does not create a joint enterprise for liability
purposes.
(o) Notwithstanding an action of a local toll project entity
taken under this section, the commission or department may take any
action that in its reasonable judgment is necessary to comply with
any federal requirement to enable this state to receive federal-aid
highway funds.
(p) A local toll project entity and the department may issue
bonds, including revenue bonds and refunding bonds, or other
obligations, and enter into credit agreements, to pay any costs
associated with a project under this section, including the
payments deposited to the applicable toll project subaccount, and
the costs to construct, maintain, and operate additional
transportation projects that the local toll project entity or the
department commits to undertake in accordance with this section, as
follows:
(1) the bonds or other obligations and the proceedings
authorizing the bonds or other obligations must be submitted to the
attorney general for review and approval as required by Chapter
1202, Government Code;
(2) the bonds or other obligations may be payable from
and secured by revenue of one or more projects of the local toll
project entity or the department, including toll road system
revenues, or such other legally available revenue or funding
sources as the local toll project entity or department shall
determine;
(3) the bonds or other obligations may mature serially
or otherwise not more than 30 years from their date of issuance;
(4) the bonds or other obligations are not a debt of
and do not create a claim for payment against the revenue or
property of the local toll project entity or the department, other
than the revenue sources pledged for which the bonds or other
obligations are issued; and
(5) the local toll project entity and the department
may issue obligations and enter into credit agreements under
Chapter 1371, Government Code, and for purposes of that chapter, a
local toll project entity and the department shall be considered a
public utility and any cost authorized to be financed in accordance
with this subsection is an eligible project.
(q) The provisions of this section requiring metropolitan
planning organization approval of the terms and conditions for the
State Highway 99 project expire August 31, 2009.
(r) This section expires August 31, 2011.
(s) This section does not apply to:
(1) any project for which the department has issued a
request for qualifications or request for competing proposals and
qualifications before May 1, 2007, except for the State Highway 161
project in Dallas County;
(2) the eastern extension of the President George Bush
Turnpike from State Highway 78 to IH 30 in Dallas County;
(3) the Phase 3 and 4 extensions of the Dallas North
Tollway in Collin and Denton Counties from State Highway 121 to the
Grayson County line, and the planned future extension into Grayson
County;
(4) the Lewisville Lake Bridge (and portions of FM 720
widening projects) in Denton County; or
(5) the Southwest Parkway (State Highway 121) in
Tarrant County from Dirks Road/Altamesa Boulevard to IH 30.
Sec. 228.012. PROJECT SUBACCOUNTS. (a) The department
shall create a separate account in the state highway fund to hold
payments received by the department under a comprehensive
development agreement, the surplus revenue of a toll project or
system, and payments received under Sections 228.0111(g)(2) and
(i)(2). The department shall create subaccounts in the account for
each project, system, or region. Interest earned on money in a
subaccount shall be deposited to the credit of that subaccount.
(b) The department shall hold money in a subaccount in trust
for the benefit of the region in which a project or system is
located and may assign the responsibility for allocating money in a
subaccount to a metropolitan planning organization in which the
region is located. Except as provided by Subsection (c), money
shall be allocated to projects authorized by Section 228.0055 or
Section 228.006, as applicable.
(c) Money in a subaccount received from a county or the
department under Section 228.0111 in connection with a project for
which a county acting under Chapter 284 has the first option shall
be allocated to transportation projects located in the county and
the counties contiguous to that county.
(d) Not later than January 1 of each odd-numbered year, the
department shall submit to the Legislative Budget Board, in the
format prescribed by the Legislative Budget Board, a report on cash
balances in the subaccounts created under this section and
expenditures made with money in those subaccounts.
(e) The commission or the department may not:
(1) revise the formula as provided in the department's
unified transportation program or a successor document in a manner
that results in a decrease of a department district's allocation
because of the deposit of a payment into a project subaccount or a
commitment to undertake an additional transportation project under
Section 228.0111; or
(2) take any other action that would reduce funding
allocated to a department district because of the deposit of a
payment received from the department or local toll project entity
into a project subaccount or a commitment to undertake an
additional transportation project under Section 228.0111.
ARTICLE 8. COUNTY AUTHORITY IN CONNECTION WITH CERTAIN TOLL
PROJECTS
SECTION 8.01. Section 284.001(3), Transportation Code, is
amended to read as follows:
(3) "Project" means:
(A) a causeway, bridge, tunnel, turnpike,
highway, ferry, or any combination of those facilities, including:
(i) [(A)] a necessary overpass, underpass,
interchange, entrance plaza, toll house, service station,
approach, fixture, and accessory and necessary equipment that has
been designated as part of the project by order of a county;
(ii) [(B)] necessary administration,
storage, and other buildings that have been designated as part of
the project by order of a county; and
(iii) [(C)] all property rights,
easements, and related interests acquired; or
(B) a turnpike project or system, as those terms
are defined by Section 370.003.
SECTION 8.02. Section 284.003, Transportation Code, is
amended to read as follows:
Sec. 284.003. PROJECT AUTHORIZED; CONSTRUCTION, OPERATION,
AND COST. (a) A county, acting through the commissioners court of
the county, or a local government corporation, without state
approval, supervision, or regulation, may:
(1) construct, acquire, improve, operate, maintain,
or pool a project located:
(A) exclusively in the county;
(B) in the county and outside the county; or
(C) in one or more counties adjacent to the
county;
(2) issue tax bonds, revenue bonds, or combination tax
and revenue bonds to pay the cost of the construction, acquisition,
or improvement of a project;
(3) impose tolls or charges as otherwise authorized by
this chapter;
(4) construct a bridge over a deepwater [deep water]
navigation channel, if the bridge does not hinder maritime
transportation; [or]
(5) construct, acquire, or operate a ferry across a
deepwater navigation channel;
(6) in connection with a project, on adoption of an
order exercise the powers of a regional mobility authority
operating under Chapter 370; or
(7) enter into a comprehensive development agreement
with a private entity to design, develop, finance, construct,
maintain, repair, operate, extend, or expand a proposed or existing
project in the county to the extent and in the manner applicable to
the department under Chapter 223 or to a regional tollway authority
under Chapter 366.
(b) The county or a local government corporation may
exercise a power provided by Subsection (a)(6) only in a manner
consistent with the other powers provided by this chapter. To the
extent of a conflict between this chapter and Chapter 370, this
chapter prevails.
(c) A project or any portion of a project that is owned by
the county and licensed or leased to a private entity or operated by
a private entity under this chapter to provide transportation
services to the general public is public property used for a public
purpose and exempt from taxation by this state or a political
subdivision of this state.
(d) If the county constructs, acquires, improves, operates,
maintains, or pools a project under this chapter, before December
31 of each even-numbered year the county shall submit to the
department a plan for the project that includes the time schedule
for the project and describes the use of project funds. The plan
may provide for and permit the use of project funds and other money,
including state or federal funds, available to the county for
roads, streets, highways, and other related facilities in the
county that are not part of a project under this chapter. A plan is
not subject to approval, supervision, or regulation by the
commission or the department, except that:
(1) any use of state or federal highway funds must be
approved by the commission;
(2) any work on a highway in the state highway system
must be approved by the department; and
(3) the department shall supervise and regulate work
on a highway in the state highway system.
(e) Except as provided by federal law, an action of a county
taken under this chapter is not subject to approval, supervision,
or regulation by a metropolitan planning organization.
(f) The county may enter into a protocol or other agreement
with the commission or the department to implement this section
through the cooperation of the parties to the agreement.
(g) An action of a county taken under this chapter must
comply with the requirements of applicable federal law. The
foregoing compliance requirement shall apply to the role of
metropolitan planning organizations under federal law, including
the approval of projects for conformity to the state implementation
plan relating to air quality, the use of toll revenue, and the use
of the right-of-way of and access to federal-aid highways.
Notwithstanding an action of a county taken under this chapter, the
commission or department may take any action that is necessary in
its reasonable judgment to comply with any federal requirement to
enable the state to receive federal-aid highway funds.
SECTION 8.03. Subchapter A, Chapter 284, Transportation
Code, is amended by adding Sections 284.0031 and 284.0032 and
amending Section 284.004 to read as follows:
Sec. 284.0031. OTHER ROAD, STREET, OR HIGHWAY PROJECTS.
(a) The commissioners court of a county or a local government
corporation, without state approval, supervision, or regulation
may:
(1) authorize the use or pledge of surplus revenue to
pay or finance the costs of a project for the study, design,
construction, maintenance, repair, or operation of roads, streets,
highways, or other related facilities that are not part of a project
under this chapter; and
(2) prescribe terms for the use of the surplus
revenue, including the manner in which revenue from a project
becomes surplus revenue and the manner in which the roads, streets,
highways, or other related facilities are to be studied, designed,
constructed, maintained, repaired, or operated.
(b) To implement this section, a county may enter into an
agreement with the commission, the department, a local governmental
entity, or another political subdivision of this state.
(c) A county may not take an action under this section that
violates or impairs a bond resolution, trust agreement, or
indenture that governs the use of the revenue of a project.
(d) Except as provided by this section, a county has the
same powers, including the powers to finance and to encumber
surplus revenue, and may use the same procedures with respect to the
study, financing, design, construction, maintenance, repair, or
operation of a road, street, highway, or other related facility
under this section as are available to the county with respect to a
project under this chapter.
(e) Notwithstanding other provisions of this section:
(1) any work on the state highway system must be
approved by the department; and
(2) the department shall supervise and regulate any
work on a highway in the state highway system.
Sec. 284.0032. TRANS-TEXAS CORRIDOR PROJECTS. If a county
is requested by the commission to participate in the development of
a project under this chapter that has been designated as part of the
Trans-Texas Corridor, the county has, in addition to all powers
granted by this chapter, all powers of the department related to the
development of a project that has been designated as part of the
Trans-Texas Corridor.
Sec. 284.004. USE OF COUNTY PROPERTY. (a) Notwithstanding
any other law, a county may use any county property for a project
under this chapter, regardless of when or how the property is
acquired.
(b) In addition to authority granted by other law, a county
may use state highway right-of-way and may access state highway
right-of-way in accordance with Sections 228.011 and 228.0111.
SECTION 8.04. Sections 284.008(c) and (d), Transportation
Code, are amended to read as follows:
(c) Except as provided by Subsection (d), a project becomes
a part of the state highway system and the commission shall maintain
the project without tolls when:
(1) all of the bonds and interest on the bonds that are
payable from or secured by revenues of the project have been paid by
the issuer of the bonds or another person with the consent or
approval of the issuer; or
(2) a sufficient amount for the payment of all bonds
and the interest on the bonds to maturity has been set aside by the
issuer of the bonds or another person with the consent or approval
of the issuer in a trust fund held for the benefit of the
bondholders.
(d) A [Before construction on a project under this chapter
begins, a] county may request that the commission adopt an order
stating that a [the] project will not become part of the state
highway system under Subsection (c). If the commission adopts the
order:
(1) Section 362.051 does not apply to the project;
(2) the project must be maintained by the county; and
(3) the project will not become part of the state
highway system unless the county transfers the project under
Section 284.011.
SECTION 8.05. Sections 284.065(b) and (c), Transportation
Code, are amended to read as follows:
(b) An existing project may be pooled in whole or in part
with a new project or another existing project.
(c) A project may [not] be pooled more than once.
ARTICLE 9. REGIONAL TOLLWAY AUTHORITIES
SECTION 9.01. Section 366.003, Transportation Code, is
amended by adding Subdivision (9-a) to read as follows:
(9-a) "Surplus revenue" means the revenue of a
turnpike project or system remaining at the end of any fiscal year
after all required payments and deposits have been made in
accordance with all bond resolutions, trust agreements,
indentures, credit agreements, or other instruments and
contractual obligations of the authority payable from the revenue
of the turnpike project or system.
SECTION 9.02. Section 366.301, Transportation Code, is
amended by adding Subsection (e) to read as follows:
(e) An action of an authority taken under this chapter must
comply with the requirements of applicable federal law, including
provisions relating to the role of metropolitan planning
organizations under federal law and the approval of projects for
conformity with the state implementation plan relating to air
quality, the use of toll revenue, and the use of the right-of-way of
and access to federal-aid highways. Notwithstanding an action of
an authority taken under this chapter, the commission or the
department may take any action that in its reasonable judgment is
necessary to comply with any federal requirement to enable this
state to receive federal-aid highway funds.
SECTION 9.03. Chapter 366, Transportation Code, is amended
by adding Subchapter H to read as follows:
SUBCHAPTER H. COMPREHENSIVE DEVELOPMENT AGREEMENTS
Sec. 366.401. COMPREHENSIVE DEVELOPMENT AGREEMENTS.
(a) An authority may use a comprehensive development agreement
with a private entity to design, develop, finance, construct,
maintain, repair, operate, extend, or expand a turnpike project.
(b) A comprehensive development agreement is an agreement
with a private entity that, at a minimum, provides for the design,
construction, rehabilitation, expansion, or improvement of a
turnpike project and may also provide for the financing,
acquisition, maintenance, or operation of a turnpike project.
(c) An authority may negotiate provisions relating to
professional and consulting services provided in connection with a
comprehensive development agreement.
(d) An authority may authorize the investment of public and
private money, including debt and equity participation, to finance
a function described by this section.
Sec. 366.402. PROCESS FOR ENTERING INTO COMPREHENSIVE
DEVELOPMENT AGREEMENTS. (a) If an authority enters into a
comprehensive development agreement, the authority shall use a
competitive procurement process that provides the best value for
the authority. An authority may accept unsolicited proposals for a
proposed turnpike project or solicit proposals in accordance with
this section.
(b) An authority shall establish rules and procedures for
accepting unsolicited proposals that require the private entity to
include in the proposal:
(1) information regarding the proposed project
location, scope, and limits;
(2) information regarding the private entity's
qualifications, experience, technical competence, and capability
to develop the project; and
(3) any other information the authority considers
relevant or necessary.
(c) An authority shall publish a notice advertising a
request for competing proposals and qualifications in the Texas
Register that includes the criteria to be used to evaluate the
proposals, the relative weight given to the criteria, and a
deadline by which proposals must be received if:
(1) the authority decides to issue a request for
qualifications for a proposed project; or
(2) the authority authorizes the further evaluation of
an unsolicited proposal.
(d) A proposal submitted in response to a request published
under Subsection (c) must contain, at a minimum, the information
required by Subsections (b)(2) and (3).
(e) An authority may interview a private entity submitting
an unsolicited proposal or responding to a request under Subsection
(c). The authority shall evaluate each proposal based on the
criteria described in the request for competing proposals and
qualifications and may qualify or shortlist private entities to
submit detailed proposals under Subsection (f). The authority must
qualify or shortlist at least two private entities to submit
detailed proposals for a project under Subsection (f) unless the
authority does not receive more than one proposal or one response to
a request under Subsection (c).
(f) An authority shall issue a request for detailed
proposals from all private entities qualified or shortlisted under
Subsection (e) if the authority proceeds with the further
evaluation of a proposed project. A request under this subsection
may require additional information the authority considers
relevant or necessary, including information relating to:
(1) the private entity's qualifications and
demonstrated technical competence;
(2) the feasibility of developing the project as
proposed;
(3) engineering or architectural designs;
(4) the private entity's ability to meet schedules; or
(5) a financial plan, including costing methodology
and cost proposals.
(g) In issuing a request for proposals under Subsection (f),
an authority may solicit input from entities qualified under
Subsection (e) or any other person. An authority may also solicit
input regarding alternative technical concepts after issuing a
request under Subsection (f).
(h) An authority shall evaluate each proposal based on the
criteria described in the request for detailed proposals and select
the private entity whose proposal offers the apparent best value to
the authority.
(i) An authority may enter into negotiations with the
private entity whose proposal offers the apparent best value.
(j) If at any point in negotiations under Subsection (i), it
appears to the authority that the highest ranking proposal will not
provide the authority with the overall best value, the authority
may enter into negotiations with the private entity submitting the
next-highest-ranking proposal.
(k) An authority may withdraw a request for competing
proposals and qualifications or a request for detailed proposals at
any time. The authority may then publish a new request for
competing proposals and qualifications.
(l) An authority may require that an unsolicited proposal be
accompanied by a nonrefundable fee sufficient to cover all or part
of its cost to review the proposal.
(m) An authority may 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 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, with the unsuccessful private
entity, jointly owns 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 private entity of any
portion of the work product contained in the proposal is at the sole
risk of the unsuccessful private entity and does not confer
liability on the authority.
(n) An authority may prescribe the general form of a
comprehensive development agreement and may include any matter the
authority considers advantageous to the authority. The authority
and the private entity shall finalize the specific terms of a
comprehensive development agreement.
(o) Section 366.185 and Subchapter A, Chapter 223, of this
code and Chapter 2254, Government Code, do not apply to a
comprehensive development agreement entered into under this
subchapter.
Sec. 366.403. CONFIDENTIALITY OF INFORMATION. (a) To
encourage private entities to submit proposals under this
subchapter, the following information is confidential, is not
subject to disclosure, inspection, or copying under Chapter 552,
Government Code, and is not subject to disclosure, discovery,
subpoena, or other means of legal compulsion for its release until a
final contract for a proposed project is entered into:
(1) all or part of a proposal that is submitted by a
private entity for a comprehensive development agreement, except
information provided under Sections 366.402(b)(1) and (2), unless
the private entity consents to the disclosure of the information;
(2) supplemental information or material submitted by
a private entity in connection with a proposal for a comprehensive
development agreement unless the private entity consents to the
disclosure of the information or material; and
(3) information created or collected by an authority
or its agent during consideration of a proposal for a comprehensive
development agreement or during the authority's preparation of a
proposal to the department relating to a comprehensive development
agreement.
(b) After an authority completes its final ranking of
proposals under Section 366.402(h), the final rankings of each
proposal under each of the published criteria are not confidential.
Sec. 366.404. PERFORMANCE AND PAYMENT SECURITY.
(a) Notwithstanding the requirements of Subchapter B, Chapter
2253, Government Code, an authority shall require a private entity
entering into a comprehensive development agreement under this
subchapter to provide a performance and payment bond or an
alternative form of security in an amount sufficient to:
(1) ensure the proper performance of the agreement;
and
(2) protect:
(A) the authority; and
(B) payment bond beneficiaries who have a direct
contractual relationship with the private entity or a subcontractor
of the private entity to supply labor or material.
(b) A performance and payment bond or alternative form of
security shall be in an amount equal to the cost of constructing or
maintaining the project.
(c) If an authority determines that it is impracticable for
a private entity to provide security in the amount described by
Subsection (b), the authority shall set the amount of the bonds or
the alternative forms of security.
(d) A payment or performance bond or alternative form of
security is not required for the portion of an agreement that
includes only design or planning services, the performance of
preliminary studies, or the acquisition of real property.
(e) The amount of the payment security must not be less than
the amount of the performance security.
(f) In addition to, or instead of, performance and payment
bonds, an authority may require the following alternative forms of
security:
(1) a cashier's check drawn on a financial entity
specified by the authority;
(2) a United States bond or note;
(3) an irrevocable bank letter of credit; or
(4) any other form of security determined suitable by
the authority.
(g) An authority by rule shall prescribe requirements for
alternative forms of security provided under this section.
Sec. 366.405. OWNERSHIP OF TURNPIKE PROJECTS. (a) A
turnpike project that is the subject of a comprehensive development
agreement with a private entity, including the facilities acquired
or constructed on the project, is public property and is owned by
the authority.
(b) Notwithstanding Subsection (a), an authority may enter
into an agreement that provides for the lease of rights-of-way, the
granting of easements, the issuance of franchises, licenses, or
permits, or any lawful uses to enable a private entity to construct,
operate, and maintain a turnpike project, including supplemental
facilities. At the termination of the agreement, the turnpike
project, including the facilities, are to be in a state of proper
maintenance as determined by the authority and shall be returned to
the authority in satisfactory condition at no further cost.
Sec. 366.406. LIABILITY FOR PRIVATE OBLIGATIONS. An
authority may not incur a financial obligation for a private entity
that designs, develops, finances, constructs, operates, or
maintains a turnpike project. The authority or a political
subdivision of the state is not liable for any financial or other
obligation of a turnpike project solely because a private entity
constructs, finances, or operates any part of the project.
Sec. 366.407. TERMS OF PRIVATE PARTICIPATION. (a) An
authority shall negotiate the terms of private participation in a
turnpike project under this subchapter, including:
(1) methods to determine the applicable cost, profit,
and project distribution among the private participants and the
authority;
(2) reasonable methods to determine and classify toll
rates and the responsibility for setting toll rates;
(3) acceptable safety and policing standards; and
(4) other applicable professional, consulting,
construction, operation, and maintenance standards, expenses, and
costs.
(b) A comprehensive development agreement entered into
under this subchapter may include any provision the authority
considers appropriate, including a provision:
(1) providing for the purchase by the authority, under
terms and conditions agreed to by the parties, of the interest of a
private participant in the comprehensive development agreement and
related property, including any interest in a turnpike project
designed, developed, financed, constructed, operated, or
maintained under the comprehensive development agreement;
(2) establishing the purchase price, as determined in
accordance with the methodology established by the parties in the
comprehensive development agreement, for the interest of a private
participant in the comprehensive development agreement and related
property;
(3) providing for the payment of an obligation
incurred under the comprehensive development agreement, including
an obligation to pay the purchase price for the interest of a
private participant in the comprehensive development agreement,
from any available source, including securing the obligation by a
pledge of revenues of the authority derived from the applicable
project, which pledge shall have priority as established by the
authority;
(4) permitting the private participant to pledge its
rights under the comprehensive development agreement;
(5) concerning the private participant's right to
operate and collect revenue from the turnpike project; and
(6) restricting the right of the authority to
terminate the private participant's right to operate and collect
revenue from the turnpike project unless and until any applicable
termination payments have been made.
(c) An authority may enter into a comprehensive development
agreement under this subchapter with a private participant only if
the project is identified in the department's unified
transportation program or is located on a transportation corridor
identified in the statewide transportation plan.
(d) Section 366.406 does not apply to an obligation of an
authority under a comprehensive development agreement, nor is an
authority otherwise constrained from issuing bonds or other
financial obligations for a turnpike project payable solely from
revenues of that turnpike project or from amounts received under a
comprehensive development agreement.
(e) Notwithstanding any other law, and subject to
compliance with the dispute resolution procedures set out in the
comprehensive development agreement, an obligation of an authority
under a comprehensive development agreement entered into under this
subchapter to make or secure payments to a person because of the
termination of the agreement, including the purchase of the
interest of a private participant or other investor in a project,
may be enforced by mandamus against the authority in a district
court of any county of the authority, and the sovereign immunity of
the authority is waived for that purpose. The district courts of
any county of the authority shall have exclusive jurisdiction and
venue over and to determine and adjudicate all issues necessary to
adjudicate any action brought under this subsection. The remedy
provided by this subsection is in addition to any legal and
equitable remedies that may be available to a party to a
comprehensive development agreement.
(f) If an authority enters into 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,
the private participant shall submit to the authority for approval:
(1) the methodology for:
(A) the setting of tolls; and
(B) increasing the amount of the tolls;
(2) a plan outlining methods the private participant
will use to collect the tolls, including:
(A) any charge to be imposed as a penalty for late
payment of a toll; and
(B) any charge to be imposed to recover the cost
of collecting a delinquent toll; and
(3) any proposed change in an approved methodology for
the setting of a toll or a plan for collecting the toll.
(g) Except as provided by this subsection, 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 50 years from the later of
the date of final acceptance of the project or the start of revenue
operations by the private participant, not to exceed a total term of
52 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.
Sec. 366.408. RULES, PROCEDURES, AND GUIDELINES GOVERNING
SELECTION AND NEGOTIATING PROCESS. (a) To promote fairness,
obtain private participants in turnpike projects, and promote
confidence among those participants, an authority shall adopt
rules, procedures, and other guidelines governing selection of
private participants for comprehensive development agreements and
negotiations of comprehensive development agreements. The rules
must contain criteria relating to the qualifications of the
participants and the award of the contracts.
(b) An authority shall have up-to-date procedures for
participation in negotiations under this subchapter.
(c) An authority has exclusive judgment to determine the
terms of an agreement.
Sec. 366.409. USE OF CONTRACT PAYMENTS. (a) Payments
received by an authority under a comprehensive development
agreement shall be used by the authority to finance the
construction, maintenance, or operation of a turnpike project or a
highway.
(b) The authority shall allocate the distribution of funds
received under Subsection (a) to the counties of the authority
based on the percentage of toll revenue from users, from each
county, of the project that is the subject of the comprehensive
development agreement. To assist the authority in determining the
allocation, each entity responsible for collecting tolls for a
project shall calculate on an annual basis the percentage of toll
revenue from users of the project from each county within the
authority based on the number of recorded electronic toll
collections.
SECTION 9.04. Section 366.033(f), Transportation Code, is
amended to read as follows:
(f) An authority may rent, lease, franchise, license, or
otherwise make portions of any property of the authority, including
tangible or intangible property, [its properties] available for use
by others in furtherance of its powers under this chapter by
increasing:
(1) the feasibility or efficient operation [the
revenue] of a turnpike project or system; or
(2) the revenue of the authority.
SECTION 9.05. Subchapter B, Chapter 366, Transportation
Code, is amended by adding Sections 366.037 and 366.038 to read as
follows:
Sec. 366.037. OTHER HIGHWAY PROJECTS. (a) In addition to
the powers granted under this chapter and without supervision or
regulation by any state agency or local governmental entity, but
subject to an agreement entered into under Subsection (c), the
board of an authority may by resolution, and on making the findings
set forth in this subsection, authorize the use of surplus revenue
of a turnpike project or system for the study, design,
construction, maintenance, repair, and operation of a highway or
similar facility that is not a turnpike project if the highway or
similar facility is:
(1) situated in a county in which the authority is
authorized to design, construct, and operate a turnpike project;
(2) anticipated to either:
(A) enhance the operation or revenue of an
existing, or the feasibility of a proposed, turnpike project by
bringing traffic to that turnpike project or enhancing the flow of
traffic either on that turnpike project or to or from that turnpike
project to another facility; or
(B) ameliorate the impact of an existing or
proposed turnpike project by enhancing the capability of another
facility to handle traffic traveling, or anticipated to travel, to
or from that turnpike project; and
(3) not anticipated to result in an overall reduction
of revenue of any turnpike project or system.
(b) The board in the resolution may prescribe terms for the
use of the surplus revenue, including the manner in which the
highway or related facility shall be studied, designed,
constructed, maintained, repaired, or operated.
(c) An authority shall enter into an agreement to implement
this section with the department, the commission, a local
governmental entity, or another political subdivision that owns a
street, road, alley, or highway that is directly affected by the
authority's turnpike project or related facility.
(d) An authority may not:
(1) take an action under this section that violates,
impairs, or is inconsistent with a bond resolution, trust
agreement, or indenture governing the use of the revenue of a
turnpike project or system; or
(2) commit in any fiscal year expenditures under this
section exceeding 10 percent of its surplus revenue from the
preceding fiscal year.
(e) In authorizing expenditures under this section, the
board shall consider:
(1) balancing throughout the counties of the authority
the application of funds generated by its turnpike projects and
systems, taking into account where those amounts are already
committed or programmed as a result of this section or otherwise;
and
(2) connectivity to an existing or proposed turnpike
project or system.
(f) Except as provided by this section, an authority has the
same powers and may use the same procedures with respect to the
study, financing, design, construction, maintenance, repair, and
operation of a highway or similar facility under this section as are
available to the authority with respect to a turnpike project or
system.
(g) Notwithstanding other provisions of this section:
(1) any work on a highway in the state highway system
must be approved by the department; and
(2) the department shall supervise and regulate any
work on a highway in the state highway system.
Sec. 366.038. TOLL COLLECTION. An authority shall provide
customer service and other toll collection and enforcement services
for a toll project, regardless of whether the toll project is
developed, financed, constructed, and operated under a
comprehensive development agreement or another agreement with the
authority.
SECTION 9.06. The heading to Section 366.185,
Transportation Code, is amended to read as follows:
Sec. 366.185. ENGINEERING, DESIGN, AND CONSTRUCTION
SERVICES [COMPETITIVE BIDDING].
SECTION 9.07. Section 366.185, Transportation Code, is
amended by amending Subsection (a) and adding Subsections (c)
through (f) to read as follows:
(a) A contract made by an authority that requires the
expenditures of public funds for the construction or maintenance of
a turnpike project may [must] be let by a competitive bidding
procedure in which the contract is awarded to the lowest
responsible bidder that complies with the authority's criteria.
(c) An authority may procure a combination of engineering,
design, and construction services in a single procurement for a
turnpike project, provided that any contract awarded results in the
best value to the authority.
(d) The authority shall adopt rules governing the award of
contracts for engineering, design, construction, and maintenance
services in a single procurement.
(e) Notwithstanding any other provision of state law, an
authority may let a contract for the design and construction of a
turnpike project by a construction manager-at-risk procedure under
which the construction manager-at-risk provides consultation to
the authority during the design of the turnpike project and is
responsible for construction of the turnpike project in accordance
with the authority's specifications. A construction
manager-at-risk shall be selected on the basis of criteria
established by the authority, which may include the construction
manager-at-risk's experience, past performance, safety record,
proposed personnel and methodology, proposed fees, and other
appropriate factors that demonstrate the construction
manager-at-risk's ability to provide the best value to the
authority and to deliver the required services in accordance with
the authority's specifications.
(f) The authority shall adopt rules governing the award of
contracts using construction manager-at-risk procedures under this
section.
SECTION 9.08. Subchapter F, Chapter 366, Transportation
Code, is amended by adding Sections 366.2521 and 366.2522 to read as
follows:
Sec. 366.2521. GIFTS AND CONTRIBUTIONS; OFFENSE. (a) In
this section, "benefit" means anything reasonably regarded as
pecuniary gain or pecuniary advantage, including benefit to any
other person in whose welfare the beneficiary has a direct and
substantial interest.
(b) A director commits an offense if the person solicits,
accepts, or agrees to accept any benefit from:
(1) a person the director knows to be subject to
regulation, inspection, or investigation by the authority; or
(2) a person the director knows is interested in or
likely to become interested in any contract, purchase, payment,
claim, transaction, or matter involving the exercise of the
director's discretion.
(c) A director who receives an unsolicited benefit that the
director is prohibited from accepting under this section may donate
the benefit to a governmental entity that has the authority to
accept the gift or may donate the benefit to a recognized tax-exempt
charitable organization formed for educational, religious, or
scientific purposes.
(d) This section does not apply to:
(1) a fee prescribed by law to be received by a
director;
(2) a benefit to which the director is lawfully
entitled; or
(3) a benefit for which the director gives legitimate
consideration in a capacity other than as a director.
(e) An offense under this section is a Class A misdemeanor.
(f) If conduct that constitutes an offense under this
section also constitutes an offense under Section 36.08, Penal
Code, the actor may be prosecuted under this section or Section
36.08.
Sec. 366.2522. OFFERING GIFT TO A DIRECTOR; OFFENSE. (a) A
person commits an offense if the person offers, confers, or agrees
to confer any benefit on a director that the person knows the
director is prohibited from accepting under Section 366.2521.
(b) An offense under this section is a Class A misdemeanor.
(c) If conduct that constitutes an offense under this
section also constitutes an offense under Section 36.09, Penal
Code, the actor may be prosecuted under this section or Section
36.09.
SECTION 9.09. Subchapter F, Chapter 366, Transportation
Code, is amended by adding Section 366.2575 to read as follows:
Sec. 366.2575. BOARD VOTE ON COUNTY REQUEST. The
commissioners court of a county of an authority may request the
board of the authority to vote on whether to build a project that
the county requests.
SECTION 9.10. Subchapter G, Chapter 366, Transportation
Code, is amended by adding Section 366.305 to read as follows:
Sec. 366.305. TRANS-TEXAS CORRIDOR PROJECTS. If an
authority is requested by the commission to participate in the
development of a turnpike project that has been designated as part
of the Trans-Texas Corridor, the authority shall have, in addition
to all powers granted in this chapter, all powers of the department
related to the development of Trans-Texas Corridor projects.
SECTION 9.11. The TxDOT/NTTA Regional Protocol entered into
between the Texas Department of Transportation and the North Texas
Tollway Authority and approved on August 10, 2006, by the tollway
authority and on August 24, 2006, by the department is invalidated.
ARTICLE 10. REGIONAL MOBILITY AUTHORITIES
SECTION 10.01. Section 370.301(d), Transportation Code, is
amended to read as follows:
(d) The commission or department may use federal money for
any purpose described by this chapter. An action of an authority
taken under this chapter must comply with the requirements of
applicable federal law, including provisions relating to the role
of metropolitan planning organizations under federal law and the
approval of projects for conformity with the state implementation
plan relating to air quality, the use of toll revenue, and the use
of the right-of-way of and access to federal-aid highways.
Notwithstanding an action of an authority taken under this chapter,
the commission or the department may take any action that in its
reasonable judgment is necessary to comply with any federal
requirement to enable this state to receive federal-aid highway
funds.
ARTICLE 11. COMPREHENSIVE DEVELOPMENT AGREEMENTS FOR TOLL PROJECTS
SECTION 11.01. 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.
Sec. 371.002. APPLICABILITY. This chapter does not apply
to a project for which the commission selected an apparent best
value proposer before May 1, 2007.
[Sections 371.003-371.050 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.
(b) The formula shall be based on investments,
expenditures, and the internal rate of return on equity under the
agreed base case financial model as projected over the original
term of the agreement, plus an agreed percentage markup on that
amount.
(c) A formula under Subsection (b) may not include any new
estimate of future revenue from the project. Compensation to the
private participant upon termination for convenience may not exceed
the amount determined using the formula under Subsection (b).
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.
ARTICLE 12. EFFECTIVE DATE
SECTION 12.01. This Act takes effect immediately if it
receives a vote of two-thirds of all the members elected to each
house, as provided by Section 39, Article III, Texas Constitution.
If this Act does not receive the vote necessary for immediate
effect, this Act takes effect September 1, 2007.