80R4690 MTB-D

By: Krusee H.B. No. 3712

A BILL TO BE ENTITLED

AN ACT

relating to the authority of regional mobility authorities, including the participation of private entities in authority projects.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Subchapter E, Chapter 370, Transportation Code, is amended by adding Section 370.194 to read as follows:

Sec. 370.194. MITIGATION OF ADVERSE ENVIRONMENTAL IMPACTS. If authorized by an applicable regulatory authority, an authority may offer to purchase a conservation easement from the owner of real property to mitigate an adverse environmental impact that is a direct result of a transportation project.

SECTION 2. Section 370.302(i), Transportation Code, is amended to read as follows:

(i) Except as provided by this section, an [An] agreement with a private entity that includes the collection by the private entity of tolls for the use of a transportation project may not be for a term longer than 50 years. An agreement may be for a term not longer than 70 years if the agreement:

(1) contains an explicit mechanism for setting the price for the purchase by an authority of the interest of the private entity in the agreement and related property, including any interest in a highway or other facility designed, developed, financed, constructed, operated, or maintained under the agreement; and

(2) outlines the benefit the state will derive from having a term longer than 50 years.

SECTION 3. Sections 370.306(c) and (i), Transportation Code, are amended to read as follows:

(c) An authority shall publish a notice advertising a request for competing proposals and qualifications in the Texas Register that includes the criteria used to evaluate the proposals, the relative weight given to the criteria, and a deadline by which proposals must be received if:

(1) the authority decides to issue a request for qualifications for a proposed project; or

(2) the authority authorizes the further evaluation of an unsolicited proposal.

(i) An authority may enter into discussions with the private entity whose proposal offers the apparent best value. [The discussions shall be limited to:

[(1) incorporation of aspects of other proposals for the purpose of achieving the overall best value for the authority;

[(2) clarifications and minor adjustments in scheduling, cash flow, and similar items; and

[(3) matters that have arisen since the submission of the proposal.]

SECTION 4. Section 370.307(a), Transportation Code, is amended to read as follows:

(a) To encourage private entities to submit proposals under Section 370.306, the following information is confidential, is not subject to disclosure, inspection, or copying under Chapter 552, Government Code, and is not subject to disclosure, discovery, subpoena, or other means of legal compulsion for its release until a final contract for a proposed project is entered into:

(1) all or part of a proposal submitted by a private entity for a comprehensive development agreement, except information provided under Sections 370.306(b)(1) and (2), unless the private entity consents to the disclosure of the information;

(2) supplemental information or material submitted by a private entity in connection with a proposal for a comprehensive development agreement, unless the private entity consents to the disclosure of the information; and

(3) information created or collected by an authority or its agent during consideration of a proposal for a comprehensive development agreement.

SECTION 5. Section 370.308(f), Transportation Code, is amended to read as follows:

(f) In addition to or instead of a performance and payment bond [bonds], an authority may require one or more of the following alternative forms of security:

(1) a cashier's check drawn on a financial entity specified by the authority;

(2) a United States bond or note;

(3) an irrevocable bank letter of credit; or

(4) any other form of security determined suitable by the authority.

SECTION 6. Section 370.311, Transportation Code, is amended by adding Subsections (d) and (e) to read as follows:

(d) A comprehensive development agreement entered into under Section 370.305 may include any provision that an authority considers appropriate, including provisions:

(1) providing for the purchase by the authority, under terms and conditions agreed to by the parties, of the interest of a private participant in the comprehensive development agreement and related property, including any interest in a highway or other facility designed, developed, financed, constructed, operated, or maintained under the comprehensive development agreement;

(2) establishing the purchase price for the interest of a private participant in the comprehensive development agreement and related property, which price may be determined in accordance with the methodology established by the parties in the comprehensive development agreement;

(3) providing for the payment of obligations incurred under the comprehensive development agreement, including any obligation to pay the purchase price for the interest of a private participant in the comprehensive development agreement, from any lawfully available source, including securing the obligations by a pledge of revenues of the authority derived from the applicable project, which pledge shall have priority as the authority may establish;

(4) permitting the private participant to pledge its rights under the comprehensive development agreement;

(5) concerning the private participant's right to operate and collect revenue from the project; and

(6) restricting the right of the authority to terminate the private participant's right to operate and collect revenue from the project unless and until any applicable termination payments have been made.

(e) Notwithstanding any other law and subject to compliance with the dispute resolution procedures set out in the comprehensive development agreement, an obligation of the authority under a comprehensive development agreement entered into under Section 370.305 to make or secure payments to a person because of the termination of the agreement, including the purchase of the interest of a private participant or other investor in a project, may be enforced by mandamus against the authority and the comptroller in a district court of Travis County, and the sovereign immunity of the state is waived for that purpose. The district courts of Travis County have exclusive jurisdiction and venue over all issues necessary to adjudicate any action brought under this subsection and may determine and adjudicate any action brought under this subsection. The remedy provided by this subsection is in addition to any legal and equitable remedies that may be available to a party to a comprehensive development agreement.

SECTION 7. Subchapter G, Chapter 370, Transportation Code, is amended by adding Section 370.318 to read as follows:

Sec. 370.318. CONTRACT FOR ENFORCEMENT. A private entity that contracts with an authority to operate a turnpike project may contract with an agency of this state or a local governmental entity for the services of peace officers employed by the agency or entity to enforce laws related to:

(1) the regulation and control of vehicular traffic on a state highway; and

(2) the payment of the proper toll on a turnpike project.

SECTION 8. Section 11.11, Tax Code, is amended by adding Subsection (k) to read as follows:

(k) For purposes of this section, any portion of a facility leased to a private entity by a regional mobility authority under Chapter 370, Transportation Code, is public property used for a public purpose if the facility is operated by the private entity to provide transportation or utility services. Any part of a facility leased to a private entity for a commercial purpose under Chapter 370, Transportation Code, is not exempt from taxation.

SECTION 9. Section 25.07(c), Tax Code, is amended to read as follows:

(c) Subsection (a) does not apply to:

(1) any portion of a facility owned by the Texas Department of Transportation that is part of the Trans-Texas Corridor, is a rail facility or system, or is a highway in the state highway system and that is licensed or leased to a private entity by that department under Chapter 91, 227, or 361, Transportation Code; [or]

(2) a leasehold or other possessory interest granted by the Texas Department of Transportation in a facility owned by that department that is part of the Trans-Texas Corridor, is a rail facility or system, or is a highway in the state highway system; or

(3) a leasehold or other possessory interest in a facility granted by a regional mobility authority under Chapter 370, Transportation Code.

SECTION 10. This Act takes effect September 1, 2007.