By: Nichols S.B. No. 1730
 
 
 
   
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to comprehensive development agreements of the Texas
  Department of Transportation or a regional mobility authority.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Sections 223.201(a), (b), (f), (g), (i), (j),
  (k), and (l), Transportation Code, are amended to read as follows:
         (a)  Subject to Section 223.202, the department may enter
  into a comprehensive development agreement with a private entity to
  design, develop, finance, construct, maintain, repair, operate,
  extend, or expand a:
               (1)  toll project;
               (2)  state highway improvement project that includes
  both tolled and nontolled lanes and may include nontolled
  appurtenant facilities;
               (3)  state highway improvement project in which the
  private entity has an interest in the project; [or]
               (4)  state highway improvement project financed wholly
  or partly with the proceeds of private activity bonds, as defined by
  Section 141(a), Internal Revenue Code of 1986; or
               (5)  nontolled state highway improvement project
  authorized by the legislature.
         (b)  In this subchapter, "comprehensive development
  agreement" means an agreement that, at a minimum, provides for the
  design and construction, reconstruction, rehabilitation,
  expansion, or improvement of a project described in Subsection (a)
  and may also provide for the financing, acquisition, maintenance,
  or operation of a project described in Subsection (a).
         (f)  The department may enter into a comprehensive
  development agreement only for all or part of:
               (1)  the State Highway 99 (Grand Parkway) project;
               (2)  the Interstate Highway 35E managed lanes project
  in Dallas and Denton Counties from Interstate Highway 635 to U.S.
  Highway 380;
               (3)  the Interstate Highway 35W project in Tarrant
  County from Interstate Highway 30 to State Highway 114 [North
  Tarrant Express project in Tarrant and Dallas Counties, including:
                     [(A)     on State Highway 183 from State Highway 121
  to State Highway 161 (Segment 2E);
                     [(B)     on Interstate Highway 35W from Interstate
  Highway 30 to State Highway 114 (Segments 3A, 3B, and 3C); and
                     [(C)     on Interstate Highway 820 from State Highway
  183 North to south of Randol Mill Road (Segment 4)];
               (4)  the State Highway 183 managed lanes project in
  Tarrant and Dallas Counties [County] from State Highway 121 [161]
  to Interstate Highway 35E;
               (5)  the Interstate Highway 35/U.S. Highway 67 Southern
  Gateway project in Dallas County, including:
                     (A)  Interstate Highway 35E from 8th Street to
  Interstate Highway 20; and
                     (B)  U.S. Highway 67 from Interstate Highway 35E
  to Farm-to-Market Road 1382 (Belt Line Road) [State Highway 249
  project in Harris and Montgomery Counties from Spring Cypress Road
  to Farm-to-Market Road 1774];
               (6)  the State Highway 288 project from U.S. Highway 59
  to south of State Highway 6 in Brazoria County and Harris County;
  [and]
               (7)  the U.S. Highway 290 [Hempstead] managed lanes
  project in Harris County from Interstate Highway 610 to State
  Highway 99;
               (8)  the Interstate Highway 820 project from State
  Highway 183 to Randol Mill Road;
               (9)  the State Highway 114 project in Dallas County
  from State Highway 121 to State Highway 183;
               (10)  the Loop 12 project in Dallas County from State
  Highway 183 to Interstate Highway 35E;
               (11)  the Interstate Highway 35E project in Dallas
  County from State Highway 183 to the Dallas North Tollway;
               (12)  the Loop 9 project in Dallas and Ellis Counties
  from Interstate Highway 20 to U.S. Highway 67; and
               (13)  the U.S. Highway 181 Harbor Bridge project in
  Nueces County between U.S. Highway 181 at Beach Avenue and
  Interstate Highway 37.
         (g)  The department may combine in a comprehensive
  development agreement under this subchapter:
               (1)  a toll project and a rail facility as defined by
  Section 91.001; or
               (2)  two or more projects described by Subsection (f).
         (i) The authority to enter into a comprehensive development
  agreement expires:
               (1)  August 31, 2017, for a project described by
  Subsection (f), other than the State Highway 99 (Grand Parkway)
  project and the State Highway 183 managed lanes project; and
               (2)  [expires] August 31, 2015, for the State Highway
  183 managed lanes project.
         (j)  Before the department may enter into a comprehensive
  development agreement under Subsection (f), the department must:
               (1)  for a project other than the State Highway 99
  (Grand Parkway) project, obtain, not later than August 31, 2017 
  [2013], the appropriate environmental clearance:
                     (A)  for the project; or
                     (B)  for the initial or base scope of the project
  if the project agreement provides for the phased construction of
  the project [for any project other than the State Highway 99 (Grand
  Parkway) project]; and
               (2)  present to the commission a full financial plan
  for the project, including costing methodology and cost proposals.
         (k)  Not later than December 1, 2014 [2012], the department
  shall provide [present] a report to the commission on the status of
  a project described by Subsection (f).  The report must include:
               (1)  the status of the project's environmental
  clearance;
               (2)  an explanation of any project delays; and
               (3)  if the procurement is not completed, the
  anticipated date for the completion of the procurement.
         (1)  In this section, "environmental clearance" means:
               (1)  a finding of no significant impact has been issued
  for the project or, as applicable, for the initial or base scope of
  the project; or
               (2)  for a project for which an environmental impact
  statement is prepared, a record of decision has been issued for that
  project or, as applicable, for the initial or base scope of the
  project.
         SECTION 2.  Sections 223.2011(a), (c), (e), and (f),
  Transportation Code, are amended to read as follows:
         (a)  Notwithstanding Sections 223.201(f) and 370.305(c), the
  department or an authority under Section 370.003 may enter into a
  comprehensive development agreement relating to improvements to,
  or construction of all or part of:
               (1)  the Loop 1 (MoPac Improvement) project from
  Farm-to-Market Road 734 to Cesar Chavez Street;
               (2)  the U.S. 183 (Bergstrom Expressway) project from
  Springdale Road to Patton Avenue; [or]
               (3)  a project consisting of the construction of:
                     (A)  the Outer Parkway Project in Cameron County 
  from U.S. Highway 77/83 to Farm-to-Market Road 1847; and
                     (B)  the South Padre Island Second Access Causeway
  Project from State Highway 100 to Park Road 100;
               (4)  the Loop 49 project from Interstate 20 to U.S.
  Highway 69 (Lindale Relief Route) and from State Highway 110 to U.S.
  Highway 259 (Segments 6 and 7).
         (c)  Not later than December 1, 2014 [2012], the department
  or the authority, as applicable, shall provide [present] a report
  to the commission on the status of a project described by Subsection
  (a).  The report must include:
               (1)  the status of the project's environmental
  clearance;
               (2)  an explanation of any project delays; and
               (3)  if the procurement is not completed, the
  anticipated date for the completion of the procurement.
         (e)  In this section, "environmental clearance" means:
               (1)  a finding of no significant impact has been issued
  for the project or, as applicable, for the initial or base scope of
  the project; or
               (2)  for a project for which an environmental impact
  statement is prepared, a record of decision has been issued for that
  project or, as applicable, for the initial or base scope of the
  project.
         (f)  The authority to enter into a comprehensive development
  agreement under this section expires August 31, 2017 [2015].
         SECTION 3.  Section 371.101, Transportation Code, is amended
  to read as follows:
         Sec. 371.101.  TERMINATION FOR CONVENIENCE.  (a)  A
  comprehensive development agreement under which a private
  participant receives the right to operate and collect revenue from
  a toll project must contain a provision authorizing the toll
  project entity to terminate the agreement for convenience and to
  purchase, under terms agreed to by the parties:
               (1)  the interest of the private participant in the
  comprehensive development agreement; and
               (2)  related property, including any interest in a
  highway or other facility designed, developed, financed,
  constructed, operated, or maintained under the agreement.
         (b)  A comprehensive development agreement described by
  Subsection (a) must include a price breakdown stating a specific
  price for the purchase of the private participant's interest at
  specified intervals from the date the toll project opens, of not
  less than two years and not more than five years, over the term of
  the agreement.
         (c)  The provision must authorize the toll project entity to
  terminate the comprehensive development agreement and to purchase
  the private participant's interest at any time during a specified
  interval at the lesser of:
               (1)  the price stated for that interval; or
               (2)  the greater of:
                     (A)  the then fair market value of the private
  participant's interest, plus or minus any other amounts specified
  in the comprehensive development agreement; or
                     (B)  an amount equal to the amount of outstanding
  debt specified in the comprehensive development agreement, plus or
  minus any other amounts specified in the comprehensive development
  agreement.
         (d)  A toll project entity shall include in a request for
  proposals for an agreement described by Subsection (a) a request
  for the proposed price breakdown described by Subsection (b) and
  shall assign points and score each proposer's price breakdown in
  the evaluation of proposals.
         (e)  If a project requires expansion or reconstruction in a
  manner that differs from the manner provided in the original
  project scope or schedule, the price for terminating the
  comprehensive development agreement may be adjusted to reflect the
  changes in the agreement.
         (f)  Subsections (b), (c), and (d) do not apply to a project
  for which a request for proposals was issued before January 1, 2013.
         (g)  A private entity shall, not later than 12 months before
  the date that a new price interval takes effect, notify the toll
  project entity of the beginning of the price interval.  The toll
  project entity must notify the private entity as to whether it will
  exercise the option to purchase under this section not later than
  six months after the date it receives notice under this subsection.
         (h)  A toll project entity must notify the private entity of
  the toll project entity's intention to purchase the private
  entity's interest under this section not less than six months
  before the date of the purchase.  [A toll project entity having
  rulemaking authority by rule and a toll project entity without
  rulemaking authority by official action shall develop a formula for
  making termination payments to terminate a comprehensive
  development agreement under which a private participant receives
  the right to operate and collect revenue from a toll project.   A
  formula must calculate an estimated amount of loss to the private
  participant as a result of the termination for convenience.
         [(b)     The formula shall be based on investments,
  expenditures, and the internal rate of return on equity under the
  agreed base case financial model as projected over the original
  term of the agreement, plus an agreed percentage markup on that
  amount.
         [(c)     A formula under Subsection (b) may not include any
  estimate of future revenue from the project, if not included in an
  agreed base case financial model under Subsection (b).  
  Compensation to the private participant upon termination for
  convenience may not exceed the amount determined using the formula
  under Subsection (b).]
         SECTION 4.  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, 2013.