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A BILL TO BE ENTITLED
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AN ACT
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relating to the authority of certain counties and other entities |
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with respect to certain transportation projects; providing |
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penalties. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subchapter E, Chapter 223, Transportation Code, |
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is amended by adding Section 223.210 to read as follows: |
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Sec. 223.210. MORATORIUM ON CERTAIN TERMS IN COMPREHENSIVE |
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DEVELOPMENT AGREEMENTS OR SALE OF TOLL PROJECTS. (a) In this |
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section: |
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(1) "Toll project" means a toll project described by |
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Section 201.001(b), regardless of whether the toll project: |
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(A) is a part of the state highway system; or |
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(B) is subject to the jurisdiction of the |
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department. |
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(2) "Toll project entity" means a public entity |
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authorized by law to acquire, design, construct, finance, operate, |
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or maintain a toll project, including: |
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(A) the department; |
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(B) a regional tollway authority; |
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(C) a regional mobility authority; or |
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(D) a county. |
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(b) A comprehensive development agreement entered into with |
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a private participant by a toll project entity on or after the |
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effective date of this subsection for the acquisition, design, |
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construction, financing, operation, or maintenance of a toll |
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project may not contain a provision permitting the private |
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participant to operate the toll project or collect revenue from the |
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toll project, regardless of whether the private participant |
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operates the toll project or collects the revenue itself or engages |
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a subcontractor or other entity to operate the toll project or |
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collect the revenue. |
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(c) Subsection (b) does not apply to a comprehensive |
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development agreement in connection with: |
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(1) a project associated with the highway designated |
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as the Trinity Parkway in the City of Dallas; or |
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(2) a project: |
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(A) that includes one or more managed lane |
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facilities to be added to an existing controlled-access highway; |
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(B) the major portion of which is located in a |
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nonattainment or near nonattainment air quality area as designated |
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by the United States Environmental Protection Agency; and |
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(C) for which the department has issued a request |
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for qualifications before the effective date of this section. |
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(c-2) Notwithstanding the TxDOT/NTTA Regional Protocol |
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entered into between the Texas Department of Transportation and the |
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North Texas Tollway Authority (the authority) and approved on |
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August 10, 2006, by the tollway authority and on August 24, 2006, by |
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the department, Subsection (b) does not apply to a comprehensive |
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development agreement: |
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(1) entered into in connection with State Highway 121 |
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if before the commission or the department enters into a contract |
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for the financing, construction, or operation of the project with a |
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private participant, an authority under Chapter 366 was granted the |
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ability to finance, construct, or operate, as applicable, the |
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portion of the toll project located within the boundaries of the |
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authority, and the authority was granted a period of 90 days from |
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March 26, 2007, to submit a commitment to the metropolitan planning |
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organization which is determined to be equal to or greater than any |
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other commitment submitted prior to March 26, 2007; and |
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(a) If the financial value of the commitment is |
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determined to be equal to or greater value than any other commitment |
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submitted prior to March 26, 2007, then the commission shall allow |
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the authority to develop the project; or |
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(2) entered into in connection with State Highway 161 |
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if before the commission or the department enters into a contract |
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with a private participant for the financing, construction, or |
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operation, an authority under Chapter 366 was granted the ability |
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to finance, construct, or operate, as applicable, the portion of |
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the toll project located within the boundaries of the authority, |
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and the authority was granted a period of 90 days to submit a |
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commitment to the metropolitan planning organization. |
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(a) If the authority makes a commitment to proceed, |
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then the department shall allow the authority to proceed and the |
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authority must enter into contracts to finance, construct, or |
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operate the project within 180 days. |
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(d) For purposes of Subsection (c)(2), "managed lane |
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facility" means a facility that increases the efficiency of a |
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controlled-access highway through various operational and design |
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actions and that allows lane management operations to be adjusted |
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at any time. The term includes high-occupancy vehicle lanes, |
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single-occupant vehicle express lanes, tolled lanes, priced lanes, |
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truck lanes, bypass lanes, dual use facilities, or any combination |
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of those facilities. |
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(e) The department may not enter into a comprehensive |
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development agreement in connection with a project described by |
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Subsection (c)(2) unless the commissioners court of the county in |
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which the majority of the project is located passes a resolution in |
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support of the agreement that states that the commissioners court: |
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(1) acknowledges that the comprehensive development |
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agreement may contain penalties for the construction of future |
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competing transportation projects that are acquired or constructed |
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during the term of the comprehensive development agreement; and |
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(2) knowing of those potential penalties, agrees that |
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the department should execute the comprehensive development |
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agreement. |
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(f) On or after the effective date of this section, a toll |
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project entity may not sell or enter into a contract to sell a toll |
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project of the entity to a private entity. |
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(g) A legislative study committee is created. The committee |
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is composed of nine members, appointed as follows: |
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(1) three members appointed by the lieutenant |
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governor; |
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(2) three members appointed by the speaker of the |
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house of representatives; and |
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(3) three members appointed by the governor. |
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(h) The legislative study committee shall select a |
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presiding officer from among its members and conduct public |
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hearings and study the public policy implications of including in a |
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comprehensive development agreement entered into by a toll project |
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entity with a private participant in connection with a toll project |
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a provision that permits the private participant to operate and |
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collect revenue from the toll project. In addition, the committee |
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shall examine the public policy implications of selling an existing |
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and operating toll project to a private entity. |
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(i) Not later than December 1, 2008, the legislative study |
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committee shall: |
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(1) prepare a written report summarizing: |
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(A) any hearings conducted by the committee; |
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(B) any legislation proposed by the committee; |
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(C) the committee's recommendations for |
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safeguards and protections of the public's interest when a contract |
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for the sale of a toll project to a private entity is entered into; |
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and |
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(D) any other findings or recommendations of the |
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committee; and |
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(2) deliver a copy of the report to the governor, the |
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lieutenant governor, and the speaker of the house of |
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representatives. |
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(j) On December 31, 2008, the legislative study committee |
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created under this section is abolished. |
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(k) This section expires September 1, 2009. |
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(l) Subsections (b), (c), (d), and (e) do not apply to a |
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project that is located in a county with a population of 575,000 or |
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more and is adjacent to an international border. |
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SECTION 2. Section 228.0055, Transportation Code, is |
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amended to read as follows: |
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Sec. 228.0055. USE OF CONTRACT PAYMENTS. (a) Payments |
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received by the commission or the department under a comprehensive |
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development agreement shall [may] be used by the commission or the |
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department to finance the construction, maintenance, or operation |
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of [a] transportation projects [project] or air quality projects |
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[project] in the region. |
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(b) The commission or the department shall distribute the |
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payments received under Subsection (a) among the department |
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districts in which the project that is the subject of a |
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comprehensive development agreement is located and allocate the |
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money to each district based on the percentage of toll revenue from |
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users in that district. To assist the commission or the department |
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in determining the appropriate allocation of money under this |
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subsection, each entity that collects tolls for a project shall |
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annually calculate the percentage of toll revenue from users of the |
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project in each department district in which the project is located |
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based on the number of recorded electronic toll collections. |
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(c) The commission or the department may not: |
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(1) revise the formula as provided in the department's |
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unified transportation program, or its successor document, in a |
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manner that results in a decrease of a department district's |
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allocation because of a payment under Subsection (a); or |
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(2) take any other action that would reduce funding |
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allocated to a department district because of payments received |
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under a comprehensive development agreement. |
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SECTION 3. Subchapter A, Chapter 228, Transportation Code, |
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is amended by adding Sections 228.011 and 228.012 to read as |
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follows: |
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Sec. 228.011. TOLL PROJECTS IN CERTAIN COUNTIES. (a) This |
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section applies only to a county acting under Chapter 284. |
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(b) The county is the entity that has primary responsibility |
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for the financing, construction, and operation of a toll project |
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located in the county. |
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(c) To the extent authorized by federal law or authorized or |
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required by this title, the commission and the department shall |
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assist the county in the financing, construction, and operation of |
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a toll project in the county by allowing the county to use highway |
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right-of-way owned by the department and to access the state |
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highway system. |
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(d) Subsections (b) and (c) do not limit the authority of |
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the commission or the department to participate in the cost of |
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acquiring, constructing, maintaining, or operating a turnpike |
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project of the county under Chapter 284. |
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(e) Before the commission or the department may enter into a |
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contract for the financing, construction, or operation of a |
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proposed or existing toll project any part of which is located in |
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the county, the commission or department shall provide the county |
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the first option to finance, construct, or operate, as applicable, |
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the portion of the toll project located in the county: |
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(1) on terms agreeable to the county, without the |
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requirement of any payment to the commission or the department |
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except as provided by Section 284.004(a); and |
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(2) in a manner determined by the county to be |
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consistent with the practices and procedures by which the county |
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finances, constructs, or operates a project. |
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(f) A county's right to exercise the first option under |
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Subsection (e) is effective for six months following the date of |
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receipt by the county of written notification from the commission |
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or the department meeting the requirements of Subsection (e) and |
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describing in reasonable detail the location of the toll project, a |
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projected cost estimate, sources and uses of funds, and a |
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construction schedule. If a county exercises the first option with |
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respect to a toll project, the county must enter into one or more |
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contracts for the financing, construction, or operation of the toll |
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project within 18 months of the date of exercising the option. A |
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contract may include agreements for design of the project, |
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acquisition of right-of-way, and utility relocation. If the county |
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does not enter into a contract within the 18-month period, the |
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commission or the department may enter into a contract for the |
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financing, construction, or operation of the toll project with a |
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different entity. |
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(g) Except as provided by Section 284.004(a), an agreement |
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entered into by the county and the commission or the department in |
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connection with a project under Chapter 284 that is financed, |
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constructed, or operated by the county and that is on or directly |
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connected to the state highway system may not require the county to |
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make any payments to the commission or the department. |
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(h) An agreement entered into by the county and the |
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commission or department in connection with a project under Chapter |
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284 that is financed, constructed, or operated by the county and |
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that is on or directly connected to a highway in the state highway |
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system does not create a joint enterprise for liability purposes. |
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Sec. 228.012. TOLL PROJECTS WITHIN BOUNDARIES OF REGIONAL |
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MOBILITY AUTHORITIES. (a) This section applies only to a toll |
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project located within the boundaries of a regional mobility |
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authority operating under Chapter 370. |
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(b) The regional mobility authority is the entity that has |
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primary responsibility for the financing, construction, and |
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operation of a toll project located within the boundaries of the |
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authority. |
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(c) To the extent authorized by federal law or authorized or |
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required by this title, the commission and the department shall |
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assist the authority in the financing, construction, and operation |
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of a toll project located within the boundaries of the authority by |
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allowing the authority to use highway right-of-way owned by the |
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department and to access the state highway system. In connection |
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with the use by the authority of improved state highway |
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right-of-way, the authority must enter into an agreement with the |
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commission or the department as provided in this chapter. |
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(d) Subsections (b) and (c) do not limit the authority of |
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the commission or the department to participate in the cost of |
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acquiring, constructing, maintaining, or operating a turnpike |
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project of the authority under Chapter 370. |
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(e) Before the commission or the department may enter into a |
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contract for the financing, construction, or operation of a |
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proposed or existing toll project any part of which is located |
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within the boundaries of an authority, the commission or department |
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shall provide the authority the first option to finance, construct, |
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or operate, as applicable, the portion of the toll project located |
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within the boundaries of the authority: |
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(1) on terms agreeable to the authority, without the |
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requirement of any payment to the commission or the department |
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except to reimburse the commission or department for actual costs |
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incurred or to be incurred by a third party, including the federal |
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government, as a result of that use by the authority; and |
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(2) in a manner determined by the authority to be |
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consistent with the practices and procedures by which the authority |
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finances, constructs, or operates a project. |
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(f) An agreement entered into by the authority and the |
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commission or the department in connection with a project under |
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Chapter 370 that is financed, constructed, or operated by the |
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authority and that is on or directly connected to the state highway |
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system may not require the authority to make any payments to the |
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commission or the department, provided that the authority and the |
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department or the commission may enter into an agreement which |
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provides for the repayment of all or a portion of funds advanced by |
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the department or the commission to the authority for the specific |
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purpose of assisting the authority in the development or |
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construction of the project. |
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(g) An agreement entered into by the authority and the |
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commission or department in connection with a project under Chapter |
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370 that is financed, constructed, or operated by the authority and |
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that is on or directly connected to a highway in the state highway |
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system does not create a joint enterprise for liability purposes. |
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(h) Once the authority or metropolitan planning |
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organization has received notice from the department relating to a |
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toll project, the authority has 180 days to provide the department |
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with written notice of the authority's decision to exercise the |
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first option to finance, construct, or operate, as applicable, the |
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toll project. Written notice from the department shall describe in |
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reasonable detail the location of the toll project, a projected |
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cost estimate, sources and uses of funds, and a construction |
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schedule. In the event the authority does not initiate work within |
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18 months of exercising its option to develop the project, the |
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metropolitan planning organization at its discretion may allow the |
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department to finance, construct, or operate the project. |
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SECTION 4. Section 284.001(3), Transportation Code, is |
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amended to read as follows: |
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(3) "Project" means: |
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(A) a causeway, bridge, tunnel, turnpike, |
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highway, ferry, or any combination of those facilities, including: |
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(i) [(A)] a necessary overpass, underpass, |
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interchange, entrance plaza, toll house, service station, |
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approach, fixture, and accessory and necessary equipment that has |
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been designated as part of the project by order of a county; |
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(ii) [(B)] necessary administration, |
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storage, and other buildings that have been designated as part of |
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the project by order of a county; and |
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(iii) [(C)] all property rights, |
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easements, and related interests acquired; or |
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(B) a turnpike project or system, as those terms |
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are defined by Section 370.003. |
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SECTION 5. Section 284.003, Transportation Code, is amended |
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to read as follows: |
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Sec. 284.003. PROJECT AUTHORIZED; CONSTRUCTION, OPERATION, |
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AND COST. (a) A county, acting through the commissioners court of |
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the county, or a local government corporation, without state |
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approval, supervision, or regulation, may: |
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(1) construct, acquire, improve, operate, maintain, |
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or pool a project located: |
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(A) exclusively in the county; |
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(B) in the county and outside the county; or |
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(C) in one or more counties adjacent to the |
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county; |
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(2) issue tax bonds, revenue bonds, or combination tax |
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and revenue bonds to pay the cost of the construction, acquisition, |
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or improvement of a project; |
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(3) impose tolls or charges as otherwise authorized by |
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this chapter; |
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(4) construct a bridge over a deepwater [deep water] |
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navigation channel, if the bridge does not hinder maritime |
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transportation; [or] |
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(5) construct, acquire, or operate a ferry across a |
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deepwater navigation channel; |
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(6) in connection with a project, on adoption of an |
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order exercise the powers of a regional mobility authority |
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operating under Chapter 370; or |
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(7) enter into a comprehensive development agreement |
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with a private entity to design, develop, finance, construct, |
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maintain, repair, operate, extend, or expand a proposed or existing |
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project in the county to the extent and in the manner applicable to |
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the department under Chapter 223 or to a regional tollway authority |
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under Chapter 366. |
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(b) The county or a local government corporation may |
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exercise a power provided by Subsection (a)(6) only in a manner |
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consistent with the other powers provided by this chapter. To the |
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extent of a conflict between this chapter and Chapter 370, this |
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chapter prevails. |
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(c) A project or any portion of a project that is owned by |
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the county and licensed or leased to a private entity or operated by |
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a private entity under this chapter to provide transportation |
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services to the general public is public property used for a public |
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purpose and exempt from taxation by this state or a political |
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subdivision of this state. |
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(d) If the county constructs, acquires, improves, operates, |
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maintains, or pools a project under this chapter, before December |
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31 of each even-numbered year the county shall submit to the |
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department a plan for the project that includes the time schedule |
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for the project and describes the use of project funds. The plan |
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may provide for and permit the use of project funds and other money, |
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including state or federal funds, available to the county for |
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roads, streets, highways, and other related facilities in the |
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county that are not part of a project under this chapter. A plan is |
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not subject to approval, supervision, or regulation by the |
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commission or the department. |
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(e) Except as provided by federal law, an action of a county |
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taken under this chapter is not subject to approval, supervision, |
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or regulation by a metropolitan planning organization. |
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(f) The county may enter into a protocol or other agreement |
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with the commission or the department to implement this section |
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through the cooperation of the parties to the agreement. |
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SECTION 6. Subchapter A, Chapter 284, Transportation Code, |
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is amended by adding Sections 284.0031 and 284.0032 and amending |
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Section 284.004 to read as follows: |
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Sec. 284.0031. OTHER ROAD, STREET, OR HIGHWAY PROJECTS. |
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(a) The commissioners court of a county or a local government |
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corporation, without state approval, supervision, or regulation |
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may: |
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(1) authorize the use or pledge of surplus revenue to |
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pay or finance the costs of a project for the study, design, |
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construction, maintenance, repair, or operation of roads, streets, |
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highways, or other related facilities that are not part of a project |
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under this chapter; and |
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(2) prescribe terms for the use of the surplus |
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revenue, including the manner in which revenue from a project |
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becomes surplus revenue and the manner in which the roads, streets, |
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highways, or other related facilities are to be studied, designed, |
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constructed, maintained, repaired, or operated. |
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(b) To implement this section, a county may enter into an |
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agreement with the commission, the department, a local governmental |
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entity, or another political subdivision of this state. |
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(c) A county may not take an action under this section that |
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violates or impairs a bond resolution, trust agreement, or |
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indenture that governs the use of the revenue of a project. |
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(d) Except as provided by this section, a county has the |
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same powers, including the powers to finance and to encumber |
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surplus revenue, and may use the same procedures with respect to the |
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study, financing, design, construction, maintenance, repair, or |
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operation of a road, street, highway, or other related facility |
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under this section as are available to the county with respect to a |
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project under this chapter. |
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Sec. 284.0032. TRANS-TEXAS CORRIDOR PROJECTS. If a county |
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requests or is requested by the commission to participate in the |
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development of a project under this chapter that has been |
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designated as part of the Trans-Texas Corridor, in connection with |
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the project and in addition to the other powers granted by this |
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chapter, the county has all the powers of the department related to |
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the development of a project that has been designated as part of the |
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Trans-Texas Corridor. |
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Sec. 284.004. USE OF COUNTY PROPERTY AND STATE HIGHWAY |
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ALIGNMENT, RIGHT-OF-WAY, AND ACCESS. (a) Notwithstanding any |
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other law, under this chapter a county may use any county property, |
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state highway right-of-way, or access to the state highway system |
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[for a project under this chapter], regardless of when or how the |
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property, right-of-way, or access is acquired. The department or |
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the commission may require the county to comply with any covenant, |
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condition, restriction, or limitation that affects state highway |
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right-of-way, but may not: |
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(1) adopt rules or establish policies that have the |
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effect of denying the county the use of the right-of-way or access |
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that the county has determined to be necessary or convenient for the |
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construction, acquisition, improvement, operation, maintenance, or |
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pooling of a project under this chapter or the implementation of a |
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plan under Section 284.003(d); or |
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(2) require the county to pay for the use of the |
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right-of-way or access, except to reimburse the commission or |
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department for actual costs incurred or to be incurred by a third |
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party, including the federal government, as a result of that use by |
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the county. |
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(b) If a project of the county under this chapter includes |
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the proposed use of improved state highway right-of-way, the county |
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and the commission or the department must enter into an agreement |
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that includes reasonable terms to accommodate that use of the |
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right-of-way by the county and to protect the interests of the |
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commission and the department in the use of the right-of-way for |
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operations of the department, including public safety and |
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congestion mitigation on the improved right-of-way. |
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(c) Notwithstanding any other law, the commission and the |
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department are not liable for any damages that result from a |
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county's use of state highway right-of-way or access to the state |
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highway system under this chapter, regardless of the legal theory, |
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statute, or cause of action under which liability is asserted. |
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SECTION 7. Sections 284.008(c) and (d), Transportation |
|
Code, are amended to read as follows: |
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(c) Except as provided by Subsection (d), a project becomes |
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a part of the state highway system and the commission shall maintain |
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the project without tolls when: |
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(1) all of the bonds and interest on the bonds that are |
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payable from or secured by revenues of the project have been paid by |
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the issuer of the bonds or another person with the consent or |
|
approval of the issuer; or |
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(2) a sufficient amount for the payment of all bonds |
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and the interest on the bonds to maturity has been set aside by the |
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issuer of the bonds or another person with the consent or approval |
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of the issuer in a trust fund held for the benefit of the |
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bondholders. |
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(d) A [Before construction on a project under this chapter
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begins, a] county may request that the commission adopt an order |
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stating that a [the] project will not become part of the state |
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highway system under Subsection (c). If the commission adopts the |
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order: |
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(1) Section 362.051 does not apply to the project; |
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(2) the project must be maintained by the county; and |
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(3) the project will not become part of the state |
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highway system unless the county transfers the project under |
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Section 284.011. |
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SECTION 8. 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 |
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with a new project or another existing project. |
|
(c) A project may [not] be pooled more than once. |
|
SECTION 9. 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 |
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turnpike project or system remaining at the end of any fiscal year |
|
after all required payments and deposits have been made in |
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accordance with all bond resolutions, trust agreements, |
|
indentures, credit agreements, or other instruments and |
|
contractual obligations of the authority payable from the revenue |
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of the turnpike project or system. |
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SECTION 10. Chapter 366, Transportation Code, is amended by |
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adding Subchapter H to read as follows: |
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SUBCHAPTER H. COMPREHENSIVE DEVELOPMENT AGREEMENTS |
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Sec. 366.401. COMPREHENSIVE DEVELOPMENT AGREEMENTS. |
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(a) An authority may use a comprehensive development agreement |
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with a private entity to design, develop, finance, construct, |
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maintain, repair, operate, extend, or expand a turnpike project. |
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(b) A comprehensive development agreement is an agreement |
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with a private entity that, at a minimum, provides for the design, |
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construction, rehabilitation, expansion, or improvement of a |
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turnpike project and may also provide for the financing, |
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acquisition, maintenance, or operation of a turnpike project. |
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(c) An authority may negotiate provisions relating to |
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professional and consulting services provided in connection with a |
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comprehensive development agreement. |
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(d) An authority may authorize the investment of public and |
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private money, including debt and equity participation, to finance |
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a function described by this section. |
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Sec. 366.402. PROCESS FOR ENTERING INTO COMPREHENSIVE |
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DEVELOPMENT AGREEMENTS. (a) If an authority enters into a |
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comprehensive development agreement, the authority shall use a |
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competitive procurement process that provides the best value for |
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the authority. An authority may accept unsolicited proposals for a |
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proposed turnpike project or solicit proposals in accordance with |
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this section. |
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(b) An authority shall establish rules and procedures for |
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accepting unsolicited proposals that require the private entity to |
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include in the proposal: |
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(1) information regarding the proposed project |
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location, scope, and limits; |
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(2) information regarding the private entity's |
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qualifications, experience, technical competence, and capability |
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to develop the project; and |
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(3) any other information the authority considers |
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relevant or necessary. |
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(c) An authority shall publish a notice advertising a |
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request for competing proposals and qualifications in the Texas |
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Register that includes the criteria to be used to evaluate the |
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proposals, the relative weight given to the criteria, and a |
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deadline by which proposals must be received if: |
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(1) the authority decides to issue a request for |
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qualifications for a proposed project; or |
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(2) the authority authorizes the further evaluation of |
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an unsolicited proposal. |
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(d) A proposal submitted in response to a request published |
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under Subsection (c) must contain, at a minimum, the information |
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required by Subsections (b)(2) and (3). |
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(e) An authority may interview a private entity submitting |
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an unsolicited proposal or responding to a request under Subsection |
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(c). The authority shall evaluate each proposal based on the |
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criteria described in the request for competing proposals and |
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qualifications and may qualify or shortlist private entities to |
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submit detailed proposals under Subsection (f). The authority must |
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qualify or shortlist at least two private entities to submit |
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detailed proposals for a project under Subsection (f) unless the |
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authority does not receive more than one proposal or one response to |
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a request under Subsection (c). |
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(f) An authority shall issue a request for detailed |
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proposals from all private entities qualified or shortlisted under |
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Subsection (e) if the authority proceeds with the further |
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evaluation of a proposed project. A request under this subsection |
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may require additional information the authority considers |
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relevant or necessary, including information relating to: |
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(1) the private entity's qualifications and |
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demonstrated technical competence; |
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(2) the feasibility of developing the project as |
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proposed; |
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(3) engineering or architectural designs; |
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(4) the private entity's ability to meet schedules; or |
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(5) a financial plan, including costing methodology |
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and cost proposals. |
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(g) In issuing a request for proposals under Subsection (f), |
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an authority may solicit input from entities qualified under |
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Subsection (e) or any other person. An authority may also solicit |
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input regarding alternative technical concepts after issuing a |
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request under Subsection (f). |
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(h) An authority shall evaluate each proposal based on the |
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criteria described in the request for detailed proposals and select |
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the private entity whose proposal offers the apparent best value to |
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the authority. |
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(i) An authority may enter into negotiations with the |
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private entity whose proposal offers the apparent best value. |
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(j) If at any point in negotiations under Subsection (i), it |
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appears to the authority that the highest ranking proposal will not |
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provide the authority with the overall best value, the authority |
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may enter into negotiations with the private entity submitting the |
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next-highest-ranking proposal. |
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(k) An authority may withdraw a request for competing |
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proposals and qualifications or a request for detailed proposals at |
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any time. The authority may then publish a new request for |
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competing proposals and qualifications. |
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(l) An authority may require that an unsolicited proposal be |
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accompanied by a nonrefundable fee sufficient to cover all or part |
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of its cost to review the proposal. |
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(m) An authority may pay an unsuccessful private entity that |
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submits a responsive proposal in response to a request for detailed |
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proposals under Subsection (f) a stipulated amount in exchange for |
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the work product contained in that proposal. A stipulated amount |
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must be stated in the request for proposals and may not exceed the |
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value of any work product contained in the proposal that can, as |
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determined by the authority, be used by the authority in the |
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performance of its functions. The use by the authority of any |
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design element contained in an unsuccessful proposal is at the sole |
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risk and discretion of the authority and does not confer liability |
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on the recipient of the stipulated amount under this subsection. |
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After payment of the stipulated amount: |
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(1) the authority, with the unsuccessful private |
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entity, jointly owns the rights to, and may make use of any work |
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product contained in, the proposal, including the technologies, |
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techniques, methods, processes, ideas, and information contained |
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in the project design; and |
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(2) the use by the unsuccessful private entity of any |
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portion of the work product contained in the proposal is at the sole |
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risk of the unsuccessful private entity and does not confer |
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liability on the authority. |
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(n) An authority may prescribe the general form of a |
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comprehensive development agreement and may include any matter the |
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authority considers advantageous to the authority. The authority |
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and the private entity shall finalize the specific terms of a |
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comprehensive development agreement. |
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(o) Section 366.185 and Subchapter A, Chapter 223, of this |
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code and Chapter 2254, Government Code, do not apply to a |
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comprehensive development agreement entered into under this |
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subchapter. |
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Sec. 366.403. CONFIDENTIALITY OF INFORMATION. (a) To |
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encourage private entities to submit proposals under this |
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subchapter, the following information is confidential, is not |
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subject to disclosure, inspection, or copying under Chapter 552, |
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Government Code, and is not subject to disclosure, discovery, |
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subpoena, or other means of legal compulsion for its release until a |
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final contract for a proposed project is entered into: |
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(1) all or part of a proposal that is submitted by a |
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private entity for a comprehensive development agreement, except |
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information provided under Sections 366.402(b)(1) and (2), unless |
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the private entity consents to the disclosure of the information; |
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(2) supplemental information or material submitted by |
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a private entity in connection with a proposal for a comprehensive |
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development agreement unless the private entity consents to the |
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disclosure of the information or material; and |
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(3) information created or collected by an authority |
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or its agent during consideration of a proposal for a comprehensive |
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development agreement or during the authority's preparation of a |
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proposal to the department relating to a comprehensive development |
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agreement. |
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(b) After an authority completes its final ranking of |
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proposals under Section 366.402(h), the final rankings of each |
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proposal under each of the published criteria are not confidential. |
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Sec. 366.404. PERFORMANCE AND PAYMENT SECURITY. |
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(a) Notwithstanding the requirements of Subchapter B, Chapter |
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2253, Government Code, an authority shall require a private entity |
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entering into a comprehensive development agreement under this |
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subchapter to provide a performance and payment bond or an |
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alternative form of security in an amount sufficient to: |
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(1) ensure the proper performance of the agreement; |
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and |
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(2) protect: |
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(A) the authority; and |
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(B) payment bond beneficiaries who have a direct |
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contractual relationship with the private entity or a subcontractor |
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of the private entity to supply labor or material. |
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(b) A performance and payment bond or alternative form of |
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security shall be in an amount equal to the cost of constructing or |
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maintaining the project. |
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(c) If an authority determines that it is impracticable for |
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a private entity to provide security in the amount described by |
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Subsection (b), the authority shall set the amount of the bonds or |
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the alternative forms of security. |
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(d) A payment or performance bond or alternative form of |
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security is not required for the portion of an agreement that |
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includes only design or planning services, the performance of |
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preliminary studies, or the acquisition of real property. |
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(e) The amount of the payment security must not be less than |
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the amount of the performance security. |
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(f) In addition to, or instead of, performance and payment |
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bonds, an authority may require the following alternative forms of |
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security: |
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(1) a cashier's check drawn on a financial entity |
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specified by the authority; |
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(2) a United States bond or note; |
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(3) an irrevocable bank letter of credit; or |
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(4) any other form of security determined suitable by |
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the authority. |
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(g) An authority by rule shall prescribe requirements for |
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alternative forms of security provided under this section. |
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Sec. 366.405. OWNERSHIP OF TURNPIKE PROJECTS. (a) A |
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turnpike project that is the subject of a comprehensive development |
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agreement with a private entity, including the facilities acquired |
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or constructed on the project, is public property and is owned by |
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the authority. |
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(b) Notwithstanding Subsection (a), an authority may enter |
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into an agreement that provides for the lease of rights-of-way, the |
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granting of easements, the issuance of franchises, licenses, or |
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permits, or any lawful uses to enable a private entity to construct, |
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operate, and maintain a turnpike project, including supplemental |
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facilities. At the termination of the agreement, the turnpike |
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project, including the facilities, are to be in a state of proper |
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maintenance as determined by the authority and shall be returned to |
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the authority in satisfactory condition at no further cost. |
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Sec. 366.406. LIABILITY FOR PRIVATE OBLIGATIONS. An |
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authority may not incur a financial obligation for a private entity |
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that designs, develops, finances, constructs, operates, or |
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maintains a turnpike project. The authority or a political |
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subdivision of the state is not liable for any financial or other |
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obligation of a turnpike project solely because a private entity |
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constructs, finances, or operates any part of the project. |
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Sec. 366.407. TERMS OF PRIVATE PARTICIPATION. (a) An |
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authority shall negotiate the terms of private participation in a |
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turnpike project under this subchapter, including: |
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(1) methods to determine the applicable cost, profit, |
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and project distribution among the private participants and the |
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authority; |
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(2) reasonable methods to determine and classify toll |
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rates and the responsibility for setting toll rates; |
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(3) acceptable safety and policing standards; and |
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(4) other applicable professional, consulting, |
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construction, operation, and maintenance standards, expenses, and |
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costs. |
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(b) A comprehensive development agreement entered into |
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under this subchapter may include any provision the authority |
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considers appropriate, including a provision: |
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(1) providing for the purchase by the authority, under |
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terms and conditions agreed to by the parties, of the interest of a |
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private participant in the comprehensive development agreement and |
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related property, including any interest in a turnpike project |
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designed, developed, financed, constructed, operated, or |
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maintained under the comprehensive development agreement; |
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(2) establishing the purchase price, as determined in |
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accordance with the methodology established by the parties in the |
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comprehensive development agreement, for the interest of a private |
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participant in the comprehensive development agreement and related |
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property; |
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(3) providing for the payment of an obligation |
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incurred under the comprehensive development agreement, including |
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an obligation to pay the purchase price for the interest of a |
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private participant in the comprehensive development agreement, |
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from any available source, including securing the obligation by a |
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pledge of revenues of the authority derived from the applicable |
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project, which pledge shall have priority as established by the |
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authority; |
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(4) permitting the private participant to pledge its |
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rights under the comprehensive development agreement; |
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(5) concerning the private participant's right to |
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operate and collect revenue from the turnpike project; and |
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(6) restricting the right of the authority to |
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terminate the private participant's right to operate and collect |
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revenue from the turnpike project unless and until any applicable |
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termination payments have been made. |
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(c) An authority may enter into a comprehensive development |
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agreement under this subchapter with a private participant only if |
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the project is identified in the department's unified |
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transportation program or is located on a transportation corridor |
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identified in the statewide transportation plan. |
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(d) Section 366.406 does not apply to an obligation of an |
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authority under a comprehensive development agreement, nor is an |
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authority otherwise constrained from issuing bonds or other |
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financial obligations for a turnpike project payable solely from |
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revenues of that turnpike project or from amounts received under a |
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comprehensive development agreement. |
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(e) Notwithstanding any other law, and subject to |
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compliance with the dispute resolution procedures set out in the |
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comprehensive development agreement, an obligation of an authority |
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under a comprehensive development agreement entered into under this |
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subchapter to make or secure payments to a person because of the |
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termination of the agreement, including the purchase of the |
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interest of a private participant or other investor in a project, |
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may be enforced by mandamus against the authority in a district |
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court of any county of the authority, and the sovereign immunity of |
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the authority is waived for that purpose. The district courts of |
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any county of the authority shall have exclusive jurisdiction and |
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venue over and to determine and adjudicate all issues necessary to |
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adjudicate any action brought under this subsection. The remedy |
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provided by this subsection is in addition to any legal and |
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equitable remedies that may be available to a party to a |
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comprehensive development agreement. |
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(f) If an authority enters into a comprehensive development |
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agreement with a private participant that includes the collection |
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by the private participant of tolls for the use of a toll project, |
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the private participant shall submit to the authority for approval: |
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(1) the methodology for: |
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(A) the setting of tolls; and |
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(B) increasing the amount of the tolls; |
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(2) a plan outlining methods the private participant |
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will use to collect the tolls, including: |
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(A) any charge to be imposed as a penalty for late |
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payment of a toll; and |
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(B) any charge to be imposed to recover the cost |
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of collecting a delinquent toll; and |
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(3) any proposed change in an approved methodology for |
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the setting of a toll or a plan for collecting the toll. |
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(g) Except as provided by this section, a comprehensive |
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development agreement with a private participant that includes the |
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collection by the private participant of tolls for the use of a toll |
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project may be for a term not longer than 30 years. |
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Sec. 366.408. RULES, PROCEDURES, AND GUIDELINES GOVERNING |
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SELECTION AND NEGOTIATING PROCESS. (a) To promote fairness, |
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obtain private participants in turnpike projects, and promote |
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confidence among those participants, an authority shall adopt |
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rules, procedures, and other guidelines governing selection of |
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private participants for comprehensive development agreements and |
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negotiations of comprehensive development agreements. The rules |
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must contain criteria relating to the qualifications of the |
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participants and the award of the contracts. |
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(b) An authority shall have up-to-date procedures for |
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participation in negotiations under this subchapter. |
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(c) An authority has exclusive judgment to determine the |
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terms of an agreement. |
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Sec. 366.409. USE OF CONTRACT PAYMENTS. (a) Payments |
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received by an authority under a comprehensive development |
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agreement shall be used by the authority to finance the |
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construction, maintenance, or operation of a turnpike project or a |
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highway. |
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(b) The authority shall allocate the distribution of funds |
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received under Subsection (a) to the counties of the authority |
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based on the percentage of toll revenue from users, from each |
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county, of the project that is the subject of the comprehensive |
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development agreement. To assist the authority in determining the |
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allocation, each entity responsible for collecting tolls for a |
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project shall calculate on an annual basis the percentage of toll |
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revenue from users of the project from each county within the |
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authority based on the number of recorded electronic toll |
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collections. |
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SECTION 11. Subsection (f), Section 366.033, |
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Transportation Code, is amended to read as follows: |
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(f) An authority may rent, lease, franchise, license, or |
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otherwise make portions of any property of the authority, including |
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tangible or intangible property, [its properties] available for use |
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by others in furtherance of its powers under this chapter by |
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increasing: |
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(1) the feasibility or efficient operation [the
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revenue] of a turnpike project or system; or |
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(2) the revenue of the authority. |
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SECTION 12. Subchapter B, Chapter 366, Transportation Code, |
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is amended by adding Sections 366.037 and 366.038 to read as |
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follows: |
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Sec. 366.037. OTHER HIGHWAY PROJECTS. (a) In addition to |
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the powers granted under this chapter and without supervision or |
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regulation by any state agency or local governmental entity, but |
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subject to an agreement entered into under Subsection (c), the |
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board of an authority may by resolution, and on making the findings |
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set forth in this subsection, authorize the use of surplus revenue |
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of a turnpike project or system for the study, design, |
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construction, maintenance, repair, and operation of a highway or |
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similar facility that is not a turnpike project if the highway or |
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similar facility is: |
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(1) situated in a county in which the authority is |
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authorized to design, construct, and operate a turnpike project; |
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(2) anticipated to either: |
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(A) enhance the operation or revenue of an |
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existing, or the feasibility of a proposed, turnpike project by |
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bringing traffic to that turnpike project or enhancing the flow of |
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traffic either on that turnpike project or to or from that turnpike |
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project to another facility; or |
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(B) ameliorate the impact of an existing or |
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proposed turnpike project by enhancing the capability of another |
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facility to handle traffic traveling, or anticipated to travel, to |
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or from that turnpike project; and |
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(3) not anticipated to result in an overall reduction |
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of revenue of any turnpike project or system. |
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(b) The board in the resolution may prescribe terms for the |
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use of the surplus revenue, including the manner in which the |
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highway or related facility shall be studied, designed, |
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constructed, maintained, repaired, or operated. |
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(c) An authority shall enter into an agreement to implement |
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this section with the department, the commission, a local |
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governmental entity, or another political subdivision that owns a |
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street, road, alley, or highway that is directly affected by the |
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authority's turnpike project or related facility. |
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(d) An authority may not: |
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(1) take an action under this section that violates, |
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impairs, or is inconsistent with a bond resolution, trust |
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agreement, or indenture governing the use of the revenue of a |
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turnpike project or system; or |
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(2) commit in any fiscal year expenditures under this |
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section exceeding 10 percent of its surplus revenue from the |
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preceding fiscal year. |
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(e) In authorizing expenditures under this section, the |
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board shall consider: |
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(1) balancing throughout the counties of the authority |
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the application of funds generated by its turnpike projects and |
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systems, taking into account where those amounts are already |
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committed or programmed as a result of this section or otherwise; |
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and |
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(2) connectivity to an existing or proposed turnpike |
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project or system. |
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(f) Except as provided by this section, an authority has the |
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same powers and may use the same procedures with respect to the |
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study, financing, design, construction, maintenance, repair, and |
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operation of a highway or similar facility under this section as are |
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available to the authority with respect to a turnpike project or |
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system. |
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Sec. 366.038. TOLL PROJECTS IN TERRITORY OF LOCAL OR |
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REGIONAL TOLL PROJECT ENTITY. (a) In this section, "local toll |
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project entity" means a regional tollway authority under this |
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chapter. |
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(b) For each toll project located within the boundaries of a |
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local toll project entity, after completion of the market valuation |
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the policy board of the metropolitan planning organization shall |
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notify the local toll project entity by mail that the entity has the |
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first option to develop, finance, construct, and operate the |
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project. The toll project entity must decide whether to exercise |
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the option before the 90th day after the date the notice sent under |
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this subsection is received by the local tool project entity. |
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(c) If the local toll project entity does not exercise the |
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option to develop, finance, construct, and operate a toll project |
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under Subsection (b), the metropolitan planning organization shall |
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allow the department to develop, finance, construct, and operate |
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the project. |
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(d) If the department determines that a toll project offered |
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to the department under Subsection (c) should be developed, |
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financed, constructed, and operated under a comprehensive |
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development agreement, a request for proposal shall include the |
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terms and conditions approved by the policy board of the |
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metropolitan planning organization. |
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(e) If a local toll project entity does not exercise the |
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right to first option under Subsection (b) and after five years |
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after the date of the notice under Subsection (b) the commission or |
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the department has not issued a request for proposal or taken any |
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other action to begin the toll project, before taking such an action |
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the commission or the department shall provide the toll project |
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entity the right to first option under Subsection (b). |
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(f) A local toll project entity shall provide customer |
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service and other toll collection and enforcement services for a |
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toll project, regardless of whether the toll project is developed, |
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financed, constructed, and operated under a comprehensive |
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development agreement or an agreement with the toll project entity. |
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(g) For the purposes of this section, a notice is considered |
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received on the third business day after the date that the notice is |
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mailed. |
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SECTION 13. The heading to Section 366.185, Transportation |
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Code, is amended to read as follows: |
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Sec. 366.185. ENGINEERING, DESIGN, AND CONSTRUCTION |
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SERVICES [COMPETITIVE BIDDING]. |
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SECTION 14. Section 366.185, Transportation Code, is |
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amended by amending Subsection (a) and adding Subsections (c) |
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through (f) to read as follows: |
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(a) A contract made by an authority that requires the |
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expenditures of public funds for the construction or maintenance of |
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a turnpike project may [must] be let by a competitive bidding |
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procedure in which the contract is awarded to the lowest |
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responsible bidder that complies with the authority's criteria. |
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(c) An authority may procure a combination of engineering, |
|
design, and construction services in a single procurement for a |
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turnpike project, provided that any contract awarded results in the |
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best value to the authority. |
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(d) The authority shall adopt rules governing the award of |
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contracts for engineering, design, construction, and maintenance |
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services in a single procurement. |
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(e) Notwithstanding any other provision of state law, an |
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authority may let a contract for the design and construction of a |
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turnpike project by a construction manager-at-risk procedure under |
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which the construction manager-at-risk provides consultation to |
|
the authority during the design of the turnpike project and is |
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responsible for construction of the turnpike project in accordance |
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with the authority's specifications. A construction |
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manager-at-risk shall be selected on the basis of criteria |
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established by the authority, which may include the construction |
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manager-at-risk's experience, past performance, safety record, |
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proposed personnel and methodology, proposed fees, and other |
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appropriate factors that demonstrate the construction |
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manager-at-risk's ability to provide the best value to the |
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authority and to deliver the required services in accordance with |
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the authority's specifications. |
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(f) The authority shall adopt rules governing the award of |
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contracts using construction manager-at-risk procedures under this |
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section. |
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SECTION 15. Subchapter F, Chapter 366, Transportation Code, |
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is amended by adding Sections 366.2521 and 366.2522 to read as |
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follows: |
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Sec. 366.2521. GIFTS AND CONTRIBUTIONS; OFFENSE. (a) In |
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this section, "benefit" means anything reasonably regarded as |
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pecuniary gain or pecuniary advantage, including benefit to any |
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other person in whose welfare the beneficiary has a direct and |
|
substantial interest. |
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(b) A director commits an offense if the person solicits, |
|
accepts, or agrees to accept any benefit from: |
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(1) a person the director knows to be subject to |
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regulation, inspection, or investigation by the authority; or |
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(2) a person the director knows is interested in or |
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likely to become interested in any contract, purchase, payment, |
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claim, transaction, or matter involving the exercise of the |
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director's discretion. |
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(c) A director who receives an unsolicited benefit that the |
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director is prohibited from accepting under this section may donate |
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the benefit to a governmental entity that has the authority to |
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accept the gift or may donate the benefit to a recognized tax-exempt |
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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 16. 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 17. 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 18. 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. |
|
|
|
* * * * * |