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A BILL TO BE ENTITLED
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AN ACT
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relating to the design, development, financing, construction, and |
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operation of certain toll projects; granting the authority to issue |
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bonds. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subsections (b) and (h), Section 223.208, |
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Transportation Code, are amended to read as follows: |
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(b) A comprehensive development agreement entered into |
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under this subchapter or Section 227.023(c) must include a |
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provision [may include any provision that the department considers
|
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appropriate, including provisions:
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[(1)] providing for the purchase by the department[,
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under terms and conditions agreed to by the parties,] of the |
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interest of a private participant in the comprehensive development |
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agreement and related property as required by Section 371.101 and |
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may include any other provision the department considers |
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appropriate, including a provision: |
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(1) [, including any interest in a highway or other
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facility 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 for the interest
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of a private participant in the comprehensive development agreement
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and related property, which price may be determined in accordance
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with the methodology established by the parties in the
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comprehensive development agreement;
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[(3)] providing for the payment of obligations |
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incurred pursuant to the comprehensive development agreement, |
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including any obligation to pay the purchase price for the interest |
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of a private participant in the comprehensive development |
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agreement, from any lawfully available source, including securing |
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such obligations by a pledge of revenues of the commission or the |
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department derived from the applicable project, which pledge shall |
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have such priority as the department may establish; |
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(2) [(4)] permitting the private participant to |
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pledge its rights under the comprehensive development agreement; |
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(3) [(5)] concerning the private participant's right |
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to operate and collect revenue from the project; and |
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(4) [(6)] restricting the right of the commission or |
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the department to terminate the private participant's right to |
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operate and collect revenue from the project unless and until any |
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applicable termination payments have been made. |
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(h) A comprehensive development agreement with a private |
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participant that includes the collection by the private participant |
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of tolls for the use of a toll project may be for a term not longer |
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than 50 years from the later of the date of final acceptance of the |
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project or the start of revenue operations by the private |
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participant, not to exceed a total term of 52 years. [The
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comprehensive development agreement must contain an explicit
|
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mechanism for setting the price for the purchase by the department
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of the interest of the private participant in the comprehensive
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development agreement and related property, including any interest
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in a highway or other facility designed, developed, financed,
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constructed, operated, or maintained under the agreement.] |
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SECTION 2. Section 228.006, Transportation Code, is amended |
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by amending Subsection (a) and adding Subsection (a-1) to read as |
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follows: |
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(a) The commission shall authorize the use of surplus |
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revenue of a toll project or system to pay the costs of a |
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transportation project, highway project, or air quality project |
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within a region [department district] in which any part of the toll |
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project is located. |
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(a-1) The department shall allocate the distribution of the |
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surplus toll revenue to department districts in the region that are |
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located in the boundaries of the metropolitan planning organization |
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in which the toll project or system producing the surplus revenue is |
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located based on the percentage of toll revenue from users in each |
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department district of the project or system. To assist the |
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department in determining the allocation, each entity responsible |
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for collecting tolls for a project or system shall calculate on an |
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annual basis the percentage of toll revenue from users of the |
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project or system in each department district based on the number of |
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recorded electronic toll collections. |
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SECTION 3. Section 228.012, Transportation Code, is amended |
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to read as follows: |
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Sec. 228.012. PROJECT SUBACCOUNTS. (a) The department |
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shall create a separate account in the state highway fund to hold |
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payments received by the department under a comprehensive |
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development agreement and[,] the surplus revenue of a toll project |
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or system[, and payments received under Sections 228.0111(g)(2) and
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(i)(2)]. The department shall create subaccounts in the account |
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for each project, system, or region. Interest earned on money in a |
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subaccount shall be deposited to the credit of that subaccount. |
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(b) The department shall hold money in a subaccount in trust |
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for the benefit of the region in which a project or system is |
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located and may assign the responsibility for allocating money in a |
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subaccount to a metropolitan planning organization in which the |
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region is located. Money [Except as provided by Subsection (c),
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money] shall be allocated to projects authorized by Section |
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228.0055 or Section 228.006, as applicable. |
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(c) [Money in a subaccount received from a county or the
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department under Section 228.0111 in connection with a project for
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which a county acting under Chapter 284 has the first option shall
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be allocated to transportation projects located in the county and
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the counties contiguous to that county.
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[(d)] Not later than January 1 of each odd-numbered year, |
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the department shall submit to the Legislative Budget Board, in the |
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format prescribed by the Legislative Budget Board, a report on cash |
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balances in the subaccounts created under this section and |
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expenditures made with money in those subaccounts. |
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(d) [(e)] 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 a successor document in a manner |
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that results in a decrease of a department district's allocation |
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because of the deposit of a payment into a project subaccount [or a
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commitment to undertake an additional transportation project under
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Section 228.0111]; 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 the deposit of a |
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payment [received from the department or local toll project entity] |
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into a project subaccount [or a commitment to undertake an
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additional transportation project under Section 228.0111]. |
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SECTION 4. Subsection (b), Section 284.004, Transportation |
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Code, is amended to read as follows: |
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(b) In addition to authority granted by other law, a county |
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may use state highway right-of-way and may access state highway |
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right-of-way in accordance with Sections 228.011 and 373.102 |
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[228.0111]. |
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SECTION 5. Subsection (d), Section 284.061, Transportation |
|
Code, is amended to read as follows: |
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(d) Subject to the reimbursement requirements of Section |
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373.102, a [A] county has full easements and rights-of-way through, |
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across, under, and over any property owned by this state that are |
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necessary or convenient to construct, acquire, or efficiently |
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operate a project under this chapter. |
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SECTION 6. Subsection (c), Section 366.170, Transportation |
|
Code, is amended to read as follows: |
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(c) An authority has full easements and rights-of-way |
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through, across, under, and over any property owned by the state or |
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any local governmental entity that are necessary or convenient to |
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construct, acquire, or efficiently operate a turnpike project or |
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system under this chapter. This subsection does not affect the |
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obligation of the authority under other state law, including |
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Section 373.102, to compensate or reimburse the state for the use or |
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acquisition of an easement or right-of-way on property owned by or |
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on behalf of the state. An authority's use of property owned by or |
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on behalf of the state is subject to any covenants, conditions, |
|
restrictions, or limitations affecting that property. |
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SECTION 7. Subsections (b) and (g), Section 366.407, |
|
Transportation Code, are amended to read as follows: |
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(b) A comprehensive development agreement entered into |
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under this subchapter must [may] include [any provision the
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authority considers appropriate, including] a provision[:
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[(1)] providing for the purchase by the authority[,
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under terms and conditions agreed to by the parties,] of the |
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interest of a private participant in the comprehensive development |
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agreement as required by Section 371.101 and may include any other |
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provision the authority considers appropriate, including a |
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provision: |
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(1) [and related property, including any interest in a
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turnpike project designed, developed, financed, constructed,
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operated, or maintained under the comprehensive development
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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 |
|
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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(2) [(4)] permitting the private participant to |
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pledge its rights under the comprehensive development agreement; |
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(3) [(5)] concerning the private participant's right |
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to operate and collect revenue from the turnpike project; and |
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(4) [(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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(g) A [Except as provided by this subsection, a] |
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comprehensive development agreement with a private participant |
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that includes the collection by the private participant of tolls |
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for the use of a toll project may be for a term not longer than 50 |
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years from the later of the date of final acceptance of the project |
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or the start of revenue operations by the private participant, not |
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to exceed a total term of 52 years. [The contract must contain an
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explicit mechanism for setting the price for the purchase by the
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department of the interest of the private participant in the
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contract and related property, including any interest in a highway
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or other facility designed, developed, financed, constructed,
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operated, or maintained under the contract.] |
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SECTION 8. Subsection (c), Section 370.169, Transportation |
|
Code, is amended to read as follows: |
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(c) An authority has full easements and rights-of-way |
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through, across, under, and over any property owned by the state or |
|
any local government that are necessary or convenient to construct, |
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acquire, or efficiently operate a transportation project or system |
|
under this chapter. This subsection does not affect the obligation |
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of the authority under other law, including Section 373.102, to |
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compensate or reimburse this state for the use or acquisition of an |
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easement or right-of-way on property owned by or on behalf of this |
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state. An authority's use of property owned by or on behalf of this |
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state is subject to any covenants, conditions, restrictions, or |
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limitations affecting that property. |
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SECTION 9. Subsection (b), Section 370.311, Transportation |
|
Code, is amended to read as follows: |
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(b) A comprehensive development agreement entered into |
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under Section 370.305 must include a provision authorizing the |
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authority to purchase, under terms agreed to by the parties, the |
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interest of a private equity investor in a transportation project |
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as required by Section 371.101. |
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SECTION 10. Section 371.002, Transportation Code, as added |
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by Chapter 264 (S.B. 792), Acts of the 80th Legislature, Regular |
|
Session, 2007, is amended to read as follows: |
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Sec. 371.002. APPLICABILITY. This chapter does not apply |
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to: |
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(1) a project for which the commission selected an |
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apparent best value proposer before May 1, 2007; or |
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(2) a publicly owned and operated toll project, as |
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defined by Section 373.001. |
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SECTION 11. The heading to Section 371.052, Transportation |
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Code, as added by Chapter 264 (S.B. 792), Acts of the 80th |
|
Legislature, Regular Session, 2007, is amended to read as follows: |
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Sec. 371.052. NOTIFICATION TO LEGISLATIVE BUDGET BOARD [AND
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STATE AUDITOR]. |
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SECTION 12. Section 371.101, Transportation Code, as added |
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by Chapter 264 (S.B. 792), Acts of the 80th Legislature, Regular |
|
Session, 2007, is amended to read as follows: |
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Sec. 371.101. TERMINATION BY PURCHASE [FOR CONVENIENCE]. |
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(a) A comprehensive development agreement must contain a |
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provision authorizing the toll project entity to purchase, under |
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terms agreed to by the parties: |
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(1) the interest of a private participant in the toll |
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project that is the subject of the agreement; and |
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(2) related property, including any interest in a |
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highway or other facility designed, developed, financed, |
|
constructed, operated, or maintained under the agreement. |
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(b) The provision must include a schedule stating a specific |
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price for the purchase of the toll project at certain intervals from |
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the date the project opens, not less than one year and not to exceed |
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five years, over the term of the agreement. |
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(c) The provision must authorize the toll project entity to |
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purchase the private entity's interest at a stated interval in an |
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amount not to exceed the lesser of: |
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(1) the price stated for that interval; or |
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(2) the greater of: |
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(A) the then fair market value of the private |
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entity's interest; or |
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(B) an amount equal to the amount of outstanding |
|
debt at that time, as specified in the comprehensive development |
|
agreement. |
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(d) A toll project entity may not, under any circumstance, |
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purchase the private entity's interest for an amount higher than |
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the stated interval amount. |
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(e) A contract to purchase the private entity's interest at |
|
the then fair market value as described by Subsection (c)(2)(A) |
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must contain a provision detailing the calculation used to |
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determine that value. |
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(f) The toll project entity shall request a proposed |
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termination-by-purchase schedule in each request for detailed |
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proposals and shall consider and score each schedule in each |
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evaluation of proposals. |
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(g) A private entity shall, not later than 12 months before |
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the date that a new price interval takes effect, notify the toll |
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project entity of the beginning of the price interval. The toll |
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project entity must notify the private entity as to whether it will |
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exercise the option to purchase under this section not later than |
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six months after the date it receives notice under this subsection. |
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(h) A toll project entity must notify the private entity of |
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the toll project entity's intention to purchase the private |
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entity's interest under this section not less than six months |
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before the date of the purchase [A toll project entity having
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rulemaking authority by rule and a toll project entity without
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rulemaking authority by official action shall develop a formula for
|
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making termination payments to terminate a comprehensive
|
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development agreement under which a private participant receives
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the right to operate and collect revenue from a toll project.
A
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formula must calculate an estimated amount of loss to the private
|
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participant as a result of the termination for convenience.
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[(b)
The formula shall be based on investments,
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expenditures, and the internal rate of return on equity under the
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agreed base case financial model as projected over the original
|
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term of the agreement, plus an agreed percentage markup on that
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amount.
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[(c)
A formula under Subsection (b) may not include any
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estimate of future revenue from the project, if not included in an
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agreed base case financial model under Subsection (b).
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Compensation to the private participant upon termination for
|
|
convenience may not exceed the amount determined using the formula
|
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under Subsection (b)]. |
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SECTION 13. Section 371.102, Transportation Code, as added |
|
by Chapter 264 (S.B. 792), Acts of the 80th Legislature, Regular |
|
Session, 2007, is amended to read as follows: |
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Sec. 371.102. TERMINATION OF CERTAIN COMPREHENSIVE |
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DEVELOPMENT AGREEMENTS. (a) If a toll project entity elects to |
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terminate a comprehensive development agreement under which a |
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private participant receives the right to operate and collect |
|
revenue from a project, the entity may: |
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(1) [if authorized to issue bonds for that purpose,] |
|
issue bonds or other obligations to: |
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(A) make any applicable termination payments to |
|
the private participant; or |
|
(B) purchase the interest of the private |
|
participant in the comprehensive development agreement or related |
|
property; or |
|
(2) provide for the payment of obligations of the |
|
private participant incurred pursuant to the comprehensive |
|
development agreement. |
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(b) A toll project entity has the same powers and duties |
|
relating to the financing of payments under Subsection (a)(1) as |
|
the toll project entity has under other applicable laws of this |
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state, including Chapters 228, 284, 366, and 370 of this code and |
|
Chapter 1371, Government Code, relating to the financing of a toll |
|
project of that entity, including the ability to deposit the |
|
proceeds of bonds or other obligations and to pledge, encumber, and |
|
expend the proceeds and revenues of a toll project as provided by |
|
law. |
|
(c) The powers held by the toll project entity include the |
|
power to authorize the issuance of bonds or other obligations and to |
|
pay all or part of the costs of a payment described in Subsection |
|
(a)(1), in the amount determined by the toll project entity under |
|
Section 371.101. Costs associated with a payment under Subsection |
|
(a)(1) are considered a cost of the project. |
|
(d) This section shall be liberally construed to effect its |
|
purposes. |
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SECTION 14. Subsections (b) and (c), Section 371.103, |
|
Transportation Code, as added by Chapter 264 (S.B. 792), Acts of the |
|
80th Legislature, Regular Session, 2007, are amended to read as |
|
follows: |
|
(b) Except as provided by Subsection (c), a comprehensive |
|
development agreement may contain a provision authorizing the toll |
|
project entity to compensate the private participant in the |
|
agreement for the loss of toll revenues attributable to the |
|
construction by the entity of a limited access highway project |
|
located within an area that extends up to four miles from either |
|
side of the centerline of the project developed under the |
|
agreement, less the private participant's decreased operating and |
|
maintenance costs attributable to the highway project, if any. A |
|
provision under this subsection may be effective only for a period |
|
of 30 years or less from the effective date of the agreement. |
|
(c) A comprehensive development agreement may not require |
|
the toll project entity to provide compensation for the |
|
construction of: |
|
(1) a highway project contained in the state |
|
transportation plan or a transportation plan of a metropolitan |
|
planning organization in effect on the effective date of the |
|
agreement; |
|
(2) work on or improvements to a highway project |
|
necessary for improved safety, or for maintenance or operational |
|
purposes; |
|
(3) a high occupancy vehicle exclusive lane addition |
|
or other work on any highway project that is required by an |
|
environmental regulatory agency; [or] |
|
(4) a transportation project that provides a mode of |
|
transportation that is not included in the project that is the |
|
subject of the comprehensive development agreement; or |
|
(5) a highway designated an interstate highway. |
|
SECTION 15. Subtitle G, Title 6, Transportation Code, is |
|
amended by adding Chapter 373 to read as follows: |
|
CHAPTER 373. TOLL PROJECTS LOCATED IN TERRITORY OF LOCAL TOLL |
|
PROJECT ENTITY |
|
SUBCHAPTER A. GENERAL PROVISIONS |
|
Sec. 373.001. DEFINITIONS. In this chapter: |
|
(1) "Local toll project entity" means an entity, other |
|
than the department, that is authorized by law to acquire, design, |
|
construct, finance, operate, and maintain a toll project, |
|
including: |
|
(A) a regional tollway authority under Chapter |
|
366; |
|
(B) a regional mobility authority under Chapter |
|
370; or |
|
(C) a county acting under Chapter 284. |
|
(2) "Privately operated or controlled toll project" |
|
means a toll project that is primarily commercial in nature and is |
|
designed and constructed by a private entity that holds a leasehold |
|
interest in or the right to operate and retain revenues from the |
|
toll project, regardless of whether the private entity operates the |
|
toll project or collects the revenue itself or engages a |
|
subcontractor or other entity to operate the toll project or |
|
collect the revenue. The term does not include a toll project for |
|
which the department or a toll project entity contracts with a |
|
private entity only for engineering, design, construction, |
|
finance, operation, maintenance, or other services. |
|
(3) "Publicly owned and operated toll project" means a |
|
toll project owned and operated by the department or a local toll |
|
project entity in which a private entity does not have a leasehold |
|
interest or right to operate or retain revenue from the toll |
|
project. The term does not include a privately operated or |
|
controlled toll project, but may include a toll project for which a |
|
private entity provides: |
|
(A) engineering, design, construction, finance, |
|
operation, maintenance, or other services; or |
|
(B) financial assistance for the toll project |
|
that does not entitle the private entity to any ownership interest |
|
in or the right to operate or retain revenue from the toll project. |
|
(4) "Toll project" means a toll project described by |
|
Section 201.001(b), regardless of whether the toll project is: |
|
(A) a part of the state highway system; or |
|
(B) subject to the jurisdiction of the |
|
department. |
|
Sec. 373.002. APPLICABILITY. (a) This chapter does not |
|
apply to a toll project described in Section 228.011. |
|
(b) Except for Sections 373.003, 373.004, and 373.005, this |
|
chapter does not apply to: |
|
(1) the State Highway 161 project from State Highway |
|
183 to IH 20 in Dallas County; |
|
(2) the U.S. 281 project in Bexar County from Loop 1604 |
|
to the Comal County line; |
|
(3) the Loop 49 project from IH 20 to State Highway 110 |
|
in Smith County; |
|
(4) the DFW Connector project in Tarrant and Dallas |
|
Counties (State Highway 114 from State Highway 114L Business to |
|
east of International Parkway and State Highway 121 from north of FM |
|
2499 to south of State Highway 360); |
|
(5) the North Tarrant Express project in Tarrant and |
|
Dallas Counties (IH 820 and State Highway 121/State Highway 183 |
|
from IH 35W to State Highway 161, IH 820 east from State Highway |
|
121/State Highway 183 to Randol Mill Road, and IH 35W from IH 30 to |
|
State Highway 170); |
|
(6) the U.S. 290 project from east of U.S. 183 to east |
|
of FM 973 in Travis County; |
|
(7) the State Highway 99 (Grand Parkway) project; |
|
(8) the IH 635 managed lanes project in Dallas County |
|
(IH 635 from east of Luna Road to Greenville Avenue and IH 35E from |
|
south of the Loop 12/IH 35E split to south of Valwood Parkway); |
|
(9) Phase 4 extension of the Dallas North Tollway in |
|
Collin and Denton Counties from U.S. 380 to the Grayson County line |
|
to be developed by North Texas Tollway Authority; or |
|
(10) the Southwest Parkway (State Highway 121) in |
|
Tarrant County from Dirks Road/Altamesa Boulevard to IH 30. |
|
Sec. 373.003. PROJECT OWNED IN PERPETUITY. Unless a toll |
|
project is sold or otherwise transferred to another toll project |
|
entity in accordance with applicable law, including Sections |
|
228.151, 284.011, 366.036, 366.172, and 370.171, a toll project |
|
procured by the department or a local toll project entity |
|
determined by the process under Subchapter B is owned by that entity |
|
in perpetuity. |
|
Sec. 373.004. GOVERNMENTAL AND NOT COMMERCIAL |
|
TRANSACTIONS. A transaction involving a local toll project entity |
|
under Section 228.011 or this chapter is not primarily commercial |
|
in nature but is an inherently governmental transaction whose |
|
purpose is to determine governmental jurisdiction, ownership, |
|
control, or other responsibilities with respect to a project. |
|
Sec. 373.005. VALUATION DETERMINATION. Any determination |
|
of value, including best value, under this chapter or other |
|
applicable federal or state law for a comprehensive development |
|
agreement or other public-private partnership arrangement |
|
involving a toll project for which a local toll project entity has |
|
exercised its option under this chapter and has complied with all |
|
other conditions in this chapter for the development of the project |
|
by the local toll project entity must take into consideration |
|
factors the entity determines appropriate, including factors |
|
related to: |
|
(1) oversight of the toll project; |
|
(2) maintenance and operations costs of the toll |
|
project; |
|
(3) the structure and rates of tolls; |
|
(4) economic development impacts of the toll project; |
|
and |
|
(5) social and environmental benefits and impacts of |
|
the toll project. |
|
Sec. 373.006. LEGAL CHALLENGES CONCLUDED. For the purposes |
|
of this chapter, all legal challenges to development of a toll |
|
project are considered concluded when a judgment or order of a court |
|
with jurisdiction over the challenge becomes final and |
|
unappealable. |
|
[Sections 373.007-373.050 reserved for expansion] |
|
SUBCHAPTER B. PROCESS TO DETERMINE ENTITY TO DEVELOP, FINANCE, |
|
CONSTRUCT, AND OPERATE TOLL PROJECT |
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Sec. 373.051. INITIATION OF PROCESS. (a) At any time |
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after a metropolitan planning organization approves the inclusion |
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of a toll project to be located in the territory of a local toll |
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project entity in the metropolitan transportation plan, the local |
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toll project entity may notify the department in writing of the |
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local toll project entity's intent to initiate the process |
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described in this subchapter. |
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(b) At any time after a metropolitan planning organization |
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approves the inclusion of a toll project to be located in the |
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territory of a local toll project entity in the metropolitan |
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transportation plan and all necessary environmental approvals for |
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the toll project have been secured, the department may notify the |
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local toll project entity in writing of the department's intent to |
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initiate the process described in this subchapter. |
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Sec. 373.052. PUBLIC PROJECT BY LOCAL TOLL PROJECT ENTITY. |
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(a) A local toll project entity has the first option to develop, |
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finance, construct, and operate a toll project as a publicly owned |
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and operated toll project. A local toll project entity has not more |
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than 180 days after the date on which notification under Section |
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373.051(a) is provided or notification under Section 373.051(b) is |
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received to decide whether to exercise the option. The option |
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period under this subsection may be extended an additional 90 days |
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by agreement of the department and the local toll project entity. |
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(b) If a local toll project entity exercises the option |
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under Subsection (a), the local toll project entity after |
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exercising the option must: |
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(1) within 180 days after the later of the date of |
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exercising its option or the date on which all environmental |
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approvals necessary for the development of the toll project are |
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secured and all legal challenges to development are concluded, |
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advertise for the initial procurement of required services, |
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including, at a minimum, design services, for the project; and |
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(2) within two years after the date on which all |
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environmental approvals necessary for the development are secured |
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and all legal challenges to development are concluded, enter into a |
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contract for the construction of the toll project. |
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Sec. 373.053. PUBLIC PROJECT BY DEPARTMENT. (a) If a |
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local toll project entity fails or declines to exercise the option |
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to develop, finance, construct, and operate a toll project under |
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Section 373.052(a), or fails or declines to advertise for |
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procurement or enter into a construction contract as required by |
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Section 373.052(b), the department has the option to develop, |
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finance, construct, and operate the toll project as a publicly |
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owned and operated project. The department has not more than 60 |
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days after the date the local toll project entity fails or declines |
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to exercise its option under Section 373.052(a) or fails or |
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declines to advertise for procurement or enter into a construction |
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contract as required by Section 373.052(b) to decide whether to |
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exercise its option. |
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(b) If the department exercises its option under Subsection |
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(a), the department after exercising the option must: |
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(1) within 180 days after the later of the date of |
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exercising its option or the date on which all environmental |
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approvals necessary for the development of the toll project are |
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secured and all legal challenges to development are concluded, |
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advertise for the initial procurement of required services, |
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including, at a minimum, design services, for the project; and |
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(2) within two years after the date on which all |
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environmental approvals necessary for the development are secured |
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and all legal challenges to development are concluded, enter into a |
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contract for the construction of the toll project. |
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Sec. 373.054. PRIVATE PROJECT BY LOCAL TOLL PROJECT ENTITY. |
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(a) If the department fails or declines to exercise the option to |
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develop, finance, construct, and operate a toll project under |
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Section 373.053(a), or fails or declines to advertise for |
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procurement or enter into a construction contract as required by |
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Section 373.053(b), the local toll project entity has the option to |
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develop, finance, construct, and operate the toll project as a |
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privately operated or controlled toll project. The local toll |
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project entity has not more than 60 days after the date the |
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department fails or declines to exercise its option under Section |
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373.053(a) or fails or declines to advertise for procurement or |
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enter into a construction contract as required by Section |
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373.053(b) to decide whether to exercise its option. |
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(b) If the local toll project entity exercises its option |
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under Subsection (a), the local toll project entity after |
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exercising the option must: |
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(1) within 180 days after the later of the date of |
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exercising its option or the date on which all environmental |
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approvals necessary for the development of the toll project are |
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secured and all legal challenges to development are concluded, |
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advertise for the initial procurement of required services, |
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including, at a minimum, design services, for the project; and |
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(2) within two years after the date on which all |
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environmental approvals necessary for the development are secured |
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and all legal challenges to development are concluded, enter into a |
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contract for the construction of the toll project. |
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Sec. 373.055. PRIVATE PROJECT BY DEPARTMENT. (a) If a |
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local toll project entity fails or declines to exercise the option |
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to develop, finance, construct, and operate a toll project under |
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Section 373.054(a), or fails or declines to advertise for |
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procurement or enter into a construction contract as required by |
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Section 373.054(b), the department has the option to develop, |
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finance, construct, and operate the toll project as a privately |
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operated or controlled toll project. The department has not more |
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than 60 days after the date the local toll project entity fails or |
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declines to exercise its option under Section 373.054(a) or fails |
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or declines to advertise for procurement or enter into a |
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construction contract as required by Section 373.054(b) to decide |
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whether to exercise its option. |
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(b) If the department exercises its option under Subsection |
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(a), the department after exercising the option must: |
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(1) within 180 days after the later of the date of |
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exercising its option or the date on which all environmental |
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approvals necessary for the development of the toll project are |
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secured and all legal challenges to development are concluded, |
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advertise for the initial procurement of required services, |
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including, at a minimum, design services, for the project; and |
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(2) within two years after the date on which all |
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environmental approvals necessary for the development are secured |
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and all legal challenges to development are concluded, enter into a |
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contract for the construction of the toll project. |
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Sec. 373.056. RE-INITIATION OF PROCESS. If the process |
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described by Sections 373.051, 373.052, 373.053, 373.054, and |
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373.055 concludes without the local toll project entity or the |
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department entering into a contract for the construction of the |
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toll project, either entity may re-initiate the process under this |
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subchapter by submitting notice to the other entity in the manner |
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provided by Section 373.051. |
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Sec. 373.057. ALTERATION OF PROCESS. (a) The department |
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or the applicable local toll project entity may waive any step or |
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steps of the process under this subchapter. |
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(b) The department and the applicable local toll project |
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entity may, by written agreement, extend any time limit under this |
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subchapter. |
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Sec. 373.058. SHARING OF PROJECT-RELATED INFORMATION. |
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(a) If a local toll project entity or the department fails or |
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declines to exercise an option or fails or declines to advertise for |
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procurement or enter into a construction contract under Section |
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373.052, 373.053, 373.054, or 373.055, the local toll project |
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entity or the department, as applicable, must make available its |
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traffic estimates, revenue estimates, plans, specifications, |
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surveys, appraisals, and other work product developed for the toll |
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project to the other entity. |
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(b) On entering into a contract for the construction of the |
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toll project, the department or the local toll project entity, as |
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applicable, shall reimburse the other entity for shared project |
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work product that it uses. |
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Sec. 373.059. QUARTERLY PROGRESS REPORTS. After the |
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department or a local toll project entity exercises an option under |
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this subchapter, the department or local toll project entity, as |
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applicable, shall issue a quarterly report on the progress of the |
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development of the toll project. The report shall be made available |
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to the public. |
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Sec. 373.060. ENVIRONMENTAL REVIEW. (a) The department |
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or the local toll project entity may begin any environmental review |
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process that may be required for a proposed toll project before |
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initiating the process under this subchapter. |
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(b) If a local toll project entity initiates the process for |
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development of a toll project under Section 373.051(a) and has not |
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begun the environmental review of the project, the local toll |
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project entity shall begin the environmental review within 180 days |
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of exercising the option. |
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[Sections 373.061-373.100 reserved for expansion] |
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SUBCHAPTER C. USE OF RIGHT-OF-WAY BY LOCAL TOLL PROJECT ENTITY |
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Sec. 373.101. USE OF STATE HIGHWAY RIGHT-OF-WAY. |
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(a) Consistent with federal law, the commission and the department |
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shall assist a local toll project entity in the development, |
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financing, construction, and operation of a toll project for which |
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the local toll project entity has exercised its option to develop, |
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finance, construct, and operate the project under Subchapter B by |
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allowing the local toll project entity to use state highway |
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right-of-way and to access the state highway system as necessary to |
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construct and operate the toll project. |
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(b) Notwithstanding any other law, the local toll project |
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entity and the commission may agree to remove the toll project from |
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the state highway system and transfer ownership to the local toll |
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project entity. |
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Sec. 373.102. REIMBURSEMENT FOR USE OF STATE HIGHWAY |
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RIGHT-OF-WAY. (a) The commission or the department may not |
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require a local toll project entity to pay for the use of state |
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highway right-of-way or access, except: |
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(1) to reimburse the department for actual costs |
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incurred by the department that are owed to a third party, including |
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the federal government, as a result of that use by the local toll |
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project entity; and |
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(2) as required under Subsection (b). |
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(b) A local toll project entity shall reimburse the |
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department for the department's actual costs to acquire the |
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right-of-way in the manner provided in the payment schedule agreed |
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to by the department and the local toll project entity. If the |
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department cannot determine that amount, the amount must be |
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determined based on the average historical right-of-way |
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acquisition values for comparable right-of-way located in |
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proximity to the project on the date of original acquisition of the |
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right-of-way. |
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(c) In lieu of reimbursement, the local toll project entity |
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may agree to pay to the department a portion of the revenues of the |
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project, in the amount and for the period of time agreed to by the |
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local toll project entity and the department. |
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(d) Money received by the department under this section |
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shall be deposited in the state highway fund and, except for |
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reimbursement for costs owed to a third party, used to fund |
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additional projects in the department district in which the toll |
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project is located. |
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(e) The commission or department may waive the requirement |
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of reimbursement under this section. |
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Sec. 373.103. AGREEMENT FOR USE OF RIGHT-OF-WAY. A local |
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toll project entity shall enter into an agreement with the |
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department for any project for which the entity has exercised its |
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option to develop, finance, construct, and operate the project |
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under Subchapter B and for which the entity intends to use state |
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highway right-of-way. The agreement must contain provisions |
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necessary to ensure that the local toll project entity's |
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construction, maintenance, and operation of the project complies |
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with the requirements of applicable state and federal law. |
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Sec. 373.104. LIABILITY FOR DAMAGES. (a) Notwithstanding |
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any other law, the commission and the department are not liable for |
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any damages that result from a local toll project entity's use of |
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state highway right-of-way or access to the state highway system |
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under this subchapter, regardless of the legal theory, statute, or |
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cause of action under which liability is asserted. |
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(b) An agreement entered into by a local toll project entity |
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and the department in connection with a toll project that is |
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financed, constructed, or operated by the local toll project entity |
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and that is on or directly connected to a highway in the state |
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highway system does not create a joint enterprise for liability |
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purposes. |
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Sec. 373.105. COMPLIANCE WITH FEDERAL LAW. Notwithstanding |
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an action taken by a local toll project entity under this |
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subchapter, the commission or department may take any action that |
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in its reasonable judgment is necessary to comply with any federal |
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requirement to enable this state to receive federal-aid highway |
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funds. |
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SECTION 16. Section 228.012, Transportation Code, as |
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amended by this Act, applies only to payments received by the Texas |
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Department of Transportation under that section on or after |
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September 1, 2009. Payments received by the department under |
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Section 228.012, Transportation Code, before that date are governed |
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by the law in effect immediately before the effective date of this |
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Act, and that law is continued in effect for that purpose. |
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SECTION 17. The change in law made by this Act to Section |
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371.102, Transportation Code, shall apply to the projects described |
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in Subdivisions (1), (4), (5), and (8), Subsection (b), Section |
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373.002, Transportation Code, as amended by this Act. Such |
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projects are governed by the remaining provisions of Chapter 371, |
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Transportation Code, as it existed immediately before the effective |
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date of this Act. |
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SECTION 18. The change in law made by this Act to Section |
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223.208, Transportation Code, does not apply to any project |
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described in Subdivisions (1), (4), (5), and (8), Subsection (b), |
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Section 373.002, Transportation Code, as amended by this Act. Such |
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a project is governed by Section 223.208, Transportation Code, as |
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it existed immediately before the effective date of this Act, and |
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that law is continued in effect for that purpose. |
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SECTION 19. (a) The repeal of Section 228.0111, |
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Transportation Code, by this Act does not apply to any project |
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described in Subsection (b), Section 373.002, Transportation Code, |
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as added by this Act. Such a project is governed by Section |
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228.0111, Transportation Code, as it existed immediately before the |
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effective date of this Act, and that law is continued in effect for |
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that purpose. |
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(b) For the purposes of the application of Subdivision (1), |
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Subsection (g), Section 228.0111, Transportation Code, or |
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Subdivision (1), Subsection (i), Section 228.0111, Transportation |
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Code, under Subsection (a) of this section to the State Highway 99 |
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(Grand Parkway) project, the local toll project entity or the |
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department, as applicable, must enter into a contract for the |
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construction of at least one segment of the project in the two-year |
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period described by Subdivision (1), Subsection (g), Section |
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228.0111, or Subdivision (1), Subsection (i), Section 228.0111. |
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For each of the remaining segments, if the department and a local |
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toll project entity have entered into an agreement for the advance |
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funding of the initial segment, a local toll project entity or the |
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department, as applicable, is not required to enter into a |
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construction contract for any remaining segment before the second |
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anniversary of the date a construction contract for a segment |
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contiguous to that remaining segment has been entered into. |
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SECTION 20. The following sections are repealed: |
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(1) Section 228.0111, Transportation Code; and |
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(2) Subsection (c), Section 371.052, Transportation |
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Code, as added by Chapter 264 (S.B. 792), Acts of the 80th |
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Legislature, Regular Session, 2007. |
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SECTION 21. This Act takes effect September 1, 2009. |