Texas 2009 - 81st Regular

Texas House Bill HB2929 Compare Versions

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1	1	81R11311 JTS-D
2	2	By: Smith of Harris H.B. No. 2929
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the design, development, financing, construction, and
8	8	operation of certain toll projects.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Sections 223.208(b) and (h), Transportation
11	11	Code, are amended to read as follows:
12	12	(b) A comprehensive development agreement entered into
13	13	under this subchapter or Section 227.023(c) must include a
14	14	provision [may include any provision that the department considers
15	15	appropriate, including provisions:
16	16	[(1)] providing for the purchase by the department[,
17	17	under terms and conditions agreed to by the parties,] of the
18	18	interest of a private participant in the comprehensive development
19	19	agreement and related property as required by Section 371.101 and
20	20	may include any other provision the department considers
21	21	appropriate, including a provision:
22	22	(1)[, including any interest in a highway or other
23	23	facility designed, developed, financed, constructed, operated, or
24	24	maintained under the comprehensive development agreement;
25	25	[(2) establishing the purchase price for the interest
26	26	of a private participant in the comprehensive development agreement
27	27	and related property, which price may be determined in accordance
28	28	with the methodology established by the parties in the
29	29	comprehensive development agreement;
30	30	[(3)] providing for the payment of obligations
31	31	incurred pursuant to the comprehensive development agreement,
32	32	including any obligation to pay the purchase price for the interest
33	33	of a private participant in the comprehensive development
34	34	agreement, from any lawfully available source, including securing
35	35	such obligations by a pledge of revenues of the commission or the
36	36	department derived from the applicable project, which pledge shall
37	37	have such priority as the department may establish;
38	38	(2) [(4)] permitting the private participant to
39	39	pledge its rights under the comprehensive development agreement;
40	40	(3) [(5)] concerning the private participant's right
41	41	to operate and collect revenue from the project; and
42	42	(4) [(6)] restricting the right of the commission or
43	43	the department to terminate the private participant's right to
44	44	operate and collect revenue from the project unless and until any
45	45	applicable termination payments have been made.
46	46	(h) A comprehensive development agreement with a private
47	47	participant that includes the collection by the private participant
48	48	of tolls for the use of a toll project may be for a term not longer
49	49	than 50 years from the later of the date of final acceptance of the
50	50	project or the start of revenue operations by the private
51	51	participant, not to exceed a total term of 52 years. [The
52	52	comprehensive development agreement must contain an explicit
53	53	mechanism for setting the price for the purchase by the department
54	54	of the interest of the private participant in the comprehensive
55	55	development agreement and related property, including any interest
56	56	in a highway or other facility designed, developed, financed,
57	57	constructed, operated, or maintained under the agreement.]
58	58	SECTION 2. Section 228.0055(a), Transportation Code, is
59	59	amended to read as follows:
60	60	(a) Payments, project savings, refinancing dividends, and
61	61	any other revenue received by the commission or the department
62	62	under a comprehensive development agreement shall be deposited into
63	63	a separate subaccount for the project from which the commission or
64	64	the department receives those monies and be used by the commission
65	65	or the department to finance the construction, maintenance, or
66	66	operation of transportation projects or air quality projects in the
67	67	region.
68	68	SECTION 3. Section 228.006(a), Transportation Code, is
69	69	amended to read as follows:
70	70	(a) The commission shall authorize the use of surplus
71	71	revenue of a toll project or system to pay the costs of a
72	72	transportation project, highway project, or air quality project
73	73	within a region [department district] in which any part of the toll
74	74	project is located.
75	75	SECTION 4. Section 284.004(b), Transportation Code, is
76	76	amended to read as follows:
77	77	(b) In addition to authority granted by other law, a county
78	78	may use state highway right-of-way and may access state highway
79	79	right-of-way in accordance with Sections 228.011 and 373.102
80	80	[228.0111].
81	81	SECTION 5. Section 284.061(d), Transportation Code, is
82	82	amended to read as follows:
83	83	(d) Subject to the reimbursement requirements of Section
84	84	373.102, a [A] county has full easements and rights-of-way through,
85	85	across, under, and over any property owned by this state that are
86	86	necessary or convenient to construct, acquire, or efficiently
87	87	operate a project under this chapter.
88	88	SECTION 6. Section 366.170(c), Transportation Code, is
89	89	amended to read as follows:
90	90	(c) An authority has full easements and rights-of-way
91	91	through, across, under, and over any property owned by the state or
92	92	any local governmental entity that are necessary or convenient to
93	93	construct, acquire, or efficiently operate a turnpike project or
94	94	system under this chapter. This subsection does not affect the
95	95	obligation of the authority under other state law, including
96	96	Section 373.102, to compensate or reimburse the state for the use or
97	97	acquisition of an easement or right-of-way on property owned by or
98	98	on behalf of the state. An authority's use of property owned by or
99	99	on behalf of the state is subject to any covenants, conditions,
100	100	restrictions, or limitations affecting that property.
101	101	SECTION 7. Sections 366.407(b) and (g), Transportation
102	102	Code, are amended to read as follows:
103	103	(b) A comprehensive development agreement entered into
104	104	under this subchapter must [may] include [any provision the
105	105	authority considers appropriate, including] a provision[:
106	106	[(1)] providing for the purchase by the authority[,
107	107	under terms and conditions agreed to by the parties,] of the
108	108	interest of a private participant in the comprehensive development
109	109	agreement as required by Section 371.101 and may include any other
110	110	provision the authority considers appropriate, including a
111	111	provision:
112	112	(1) [and related property, including any interest in a
113	113	turnpike project designed, developed, financed, constructed,
114	114	operated, or maintained under the comprehensive development
115	115	agreement;
116	116	[(2) establishing the purchase price, as determined in
117	117	accordance with the methodology established by the parties in the
118	118	comprehensive development agreement, for the interest of a private
119	119	participant in the comprehensive development agreement and related
120	120	property;
121	121	[(3)] providing for the payment of an obligation
122	122	incurred under the comprehensive development agreement, including
123	123	an obligation to pay the purchase price for the interest of a
124	124	private participant in the comprehensive development agreement,
125	125	from any available source, including securing the obligation by a
126	126	pledge of revenues of the authority derived from the applicable
127	127	project, which pledge shall have priority as established by the
128	128	authority;
129	129	(2) [(4)] permitting the private participant to
130	130	pledge its rights under the comprehensive development agreement;
131	131	(3) [(5)] concerning the private participant's right
132	132	to operate and collect revenue from the turnpike project; and
133	133	(4) [(6)] restricting the right of the authority to
134	134	terminate the private participant's right to operate and collect
135	135	revenue from the turnpike project unless and until any applicable
136	136	termination payments have been made.
137	137	(g) A [Except as provided by this subsection, a]
138	138	comprehensive development agreement with a private participant
139	139	that includes the collection by the private participant of tolls
140	140	for the use of a toll project may be for a term not longer than 50
141	141	years from the later of the date of final acceptance of the project
142	142	or the start of revenue operations by the private participant, not
143	143	to exceed a total term of 52 years. [The contract must contain an
144	144	explicit mechanism for setting the price for the purchase by the
145	145	department of the interest of the private participant in the
146	146	contract and related property, including any interest in a highway
147	147	or other facility designed, developed, financed, constructed,
148	148	operated, or maintained under the contract.]
149	149	SECTION 8. Section 370.169(c), Transportation Code, is
150	150	amended to read as follows:
151	151	(c) An authority has full easements and rights-of-way
152	152	through, across, under, and over any property owned by the state or
153	153	any local government that are necessary or convenient to construct,
154	154	acquire, or efficiently operate a transportation project or system
155	155	under this chapter. This subsection does not affect the obligation
156	156	of the authority under other law, including Section 373.102, to
157	157	compensate or reimburse this state for the use or acquisition of an
158	158	easement or right-of-way on property owned by or on behalf of this
159	159	state. An authority's use of property owned by or on behalf of this
160	160	state is subject to any covenants, conditions, restrictions, or
161	161	limitations affecting that property.
162	162	SECTION 9. Section 370.311(b), Transportation Code, is
163	163	amended to read as follows:
164	164	(b) A comprehensive development agreement entered into
165	165	under Section 370.305 must include a provision authorizing the
166	166	authority to purchase, under terms agreed to by the parties, the
167	167	interest of a private equity investor in a transportation project
168	168	as required by Section 371.101.
169	169	SECTION 10. Section 371.002, Transportation Code, as added
170	170	by Section 11.01, Chapter 264 (S.B. 792), Acts of the 80th
171	171	Legislature, Regular Session, 2007, is amended to read as follows:
172	172	Sec. 371.002. APPLICABILITY. This chapter does not apply
173	173	to:
174	174	(1) a project for which the commission selected an
175	175	apparent best value proposer before May 1, 2007; or
176	176	(2) a publicly owned and operated toll project, as
177	177	defined by Section 373.001.
178	178	SECTION 11. The heading to Section 371.052, Transportation
179	179	Code, as added by Section 11.01, Chapter 264 (S.B. 792), Acts of the
180	180	80th Legislature, Regular Session, 2007, is amended to read as
181	181	follows:
182	182	Sec. 371.052. NOTIFICATION TO LEGISLATIVE BUDGET BOARD [AND
183	183	STATE AUDITOR].
184	184	SECTION 12. Section 371.101, Transportation Code, as added
185	185	by Section 11.01, Chapter 264 (S.B. 792), Acts of the 80th
186	186	Legislature, Regular Session, 2007, is amended to read as follows:
187	187	Sec. 371.101. TERMINATION BY PURCHASE [FOR CONVENIENCE].
188	188	(a) A comprehensive development agreement must contain a provision
189	189	authorizing the toll project entity to purchase, under terms agreed
190	190	to by the parties:
191	191	(1) the interest of a private participant in the toll
192	192	project that is the subject of the agreement; and
193	193	(2) related property, including any interest in a
194	194	highway or other facility designed, developed, financed,
195	195	constructed, operated, or maintained under the agreement.
196	196	(b) The provision must include a schedule stating a specific
197	197	price for the purchase of the toll project at certain intervals from
198	198	the date the project opens, not less than one year and not to exceed
199	199	five years, over the term of the agreement.
200	200	(c) The provision must authorize the toll project entity to
201	201	purchase the private entity's interest at a stated interval in an
202	202	amount not to exceed the lesser of:
203	203	(1) the price stated for that interval; or
204	204	(2) the then fair market value of the private entity's
205	205	interest, which may include the amount of outstanding debt at that
206	206	time, as authorized in the comprehensive development agreement.
207	207	(d) The toll project entity shall request a proposed
208	208	termination-by-purchase schedule in each request for detailed
209	209	proposals and shall consider and score each schedule in each
210	210	evaluation of proposals.
211	211	(e) A private entity shall, not later than 12 months before
212	212	the date that a new price interval takes effect, notify the toll
213	213	project entity of the beginning of the price interval. The toll
214	214	project entity must notify the private entity as to whether it will
215	215	exercise the option to purchase under this section not later than
216	216	six months after the date it receives notice under this
217	217	subsection.
218	218	(f) A toll project entity must notify the private entity of
219	219	the toll project entity's intention to purchase the private
220	220	entity's interest under this section not less than six months
221	221	before the date of the purchase. [A toll project entity having
222	222	rulemaking authority by rule and a toll project entity without
223	223	rulemaking authority by official action shall develop a formula for
224	224	making termination payments to terminate a comprehensive
225	225	development agreement under which a private participant receives
226	226	the right to operate and collect revenue from a toll project. A
227	227	formula must calculate an estimated amount of loss to the private
228	228	participant as a result of the termination for convenience.
229	229	[(b) The formula shall be based on investments,
230	230	expenditures, and the internal rate of return on equity under the
231	231	agreed base case financial model as projected over the original
232	232	term of the agreement, plus an agreed percentage markup on that
233	233	amount.
234	234	[(c) A formula under Subsection (b) may not include any
235	235	estimate of future revenue from the project, if not included in an
236	236	agreed base case financial model under Subsection (b).
237	237	Compensation to the private participant upon termination for
238	238	convenience may not exceed the amount determined using the formula
239	239	under Subsection (b).]
240	240	SECTION 13. Section 371.102, Transportation Code, as added
241	241	by Section 11.01, Chapter 264 (S.B. 792), Acts of the 80th
242	242	Legislature, Regular Session, 2007, is amended to read as follows:
243	243	Sec. 371.102. TERMINATION OF CERTAIN COMPREHENSIVE
244	244	DEVELOPMENT AGREEMENTS. (a) If a toll project entity elects to
245	245	terminate a comprehensive development agreement under which a
246	246	private participant receives the right to operate and collect
247	247	revenue from a project, the entity may:
248	248	(1) [if authorized to issue bonds for that purpose,]
249	249	issue bonds or other obligations to:
250	250	(A) make any applicable termination payments to
251	251	the private participant; or
252	252	(B) purchase the interest of the private
253	253	participant in the comprehensive development agreement or related
254	254	property; or
255	255	(2) provide for the payment of obligations of the
256	256	private participant incurred pursuant to the comprehensive
257	257	development agreement.
258	258	(b) A toll project entity has the same powers and duties
259	259	relating to the financing of payments under Subsection (a)(1) as
260	260	the toll project entity has under other applicable laws of this
261	261	state, including Chapters 228, 284, 366, and 370 of this code and
262	262	Chapter 1371, Government Code, relating to the financing of a toll
263	263	project of that entity, including the ability to deposit the
264	264	proceeds of bonds or other obligations and to pledge, encumber, and
265	265	expend the proceeds and revenues of a toll project as provided by
266	266	law.
267	267	(c) The powers held by the toll project entity include the
268	268	power to authorize the issuance of bonds or other obligations and to
269	269	pay all or part of the costs of a payment described in Subsection
270	270	(a)(1), in the amount determined by the toll project entity under
271	271	Section 371.101. Costs associated with a payment under Subsection
272	272	(a)(1) are considered a cost of the project.
273	273	(d) This section shall be liberally construed to effect its
274	274	purposes.
275	275	SECTION 14. Sections 371.103(b) and (c), Transportation
276	276	Code, as added by Section 11.01, Chapter 264 (S.B. 792), Acts of the
277	277	80th Legislature, Regular Session, 2007, are amended to read as
278	278	follows:
279	279	(b) Except as provided by Subsection (c), a comprehensive
280	280	development agreement may contain a provision authorizing the toll
281	281	project entity to compensate the private participant in the
282	282	agreement for the loss of toll revenues attributable to the
283	283	construction by the entity of a limited access highway project
284	284	located within an area that extends up to four miles from either
285	285	side of the centerline of the project developed under the
286	286	agreement, less the private participant's decreased operating and
287	287	maintenance costs attributable to the highway project, if any. A
288	288	provision under this subsection may be effective only for a period
289	289	of 30 years or less from the effective date of the agreement.
290	290	(c) A comprehensive development agreement may not require
291	291	the toll project entity to provide compensation for the
292	292	construction of:
293	293	(1) a highway project contained in the state
294	294	transportation plan or a transportation plan of a metropolitan
295	295	planning organization in effect on the effective date of the
296	296	agreement;
297	297	(2) work on or improvements to a highway project
298	298	necessary for improved safety, or for maintenance or operational
299	299	purposes;
300	300	(3) a high occupancy vehicle exclusive lane addition
301	301	or other work on any highway project that is required by an
302	302	environmental regulatory agency; [or]
303	303	(4) a transportation project that provides a mode of
304	304	transportation that is not included in the project that is the
305	305	subject of the comprehensive development agreement; or
306	306	(5) a highway designated an interstate highway.
307	307	SECTION 15. Subtitle G, Title 6, Transportation Code, is
308	308	amended by adding Chapter 373 to read as follows:
309	309	CHAPTER 373. TOLL PROJECTS LOCATED IN TERRITORY OF LOCAL TOLL
310	310	PROJECT ENTITY
311	311	SUBCHAPTER A. GENERAL PROVISIONS
312	312	Sec. 373.001. DEFINITIONS. In this chapter:
313	313	(1) "Local toll project entity" means an entity, other
314	314	than the department, that is authorized by law to acquire, design,
315	315	construct, finance, operate, and maintain a toll project,
316	316	including:
317	317	(A) a regional tollway authority under Chapter
318	318	366;
319	319	(B) a regional mobility authority under Chapter
320	320	370; or
321	321	(C) a county acting under Chapter 284.
322	322	(2) "Privately operated or controlled toll project"
323	323	means a toll project that is primarily commercial in nature and is
324	324	designed and constructed by a private entity that holds a leasehold
325	325	interest in or the right to operate and retain revenues from the
326	326	toll project, regardless of whether the private entity operates the
327	327	toll project or collects the revenue itself or engages a
328	328	subcontractor or other entity to operate the toll project or
329	329	collect the revenue. The term does not include a toll project for
330	330	which the department or a toll project entity contracts with a
331	331	private entity only for engineering, design, construction,
332	332	finance, operation, maintenance, or other services.
333	333	(3) "Publicly owned and operated toll project" means a
334	334	toll project owned and operated by the department or a local toll
335	335	project entity in which a private entity does not have a leasehold
336	336	interest or right to operate or retain revenue from the toll
337	337	project. The term does not include a privately operated or
338	338	controlled toll project, but may include a toll project for which a
339	339	private entity provides:
340	340	(A) engineering, design, construction, finance,
341	341	operation, maintenance, or other services; or
342	342	(B) financial assistance for the toll project
343	343	that does not entitle the private entity to any ownership interest
344	344	in or the right to operate or retain revenue from the toll project.
345	345	(4) "Toll project" means a toll project described by
346	346	Section 201.001(b), regardless of whether the toll project is:
347	347	(A) a part of the state highway system; or
348	348	(B) subject to the jurisdiction of the
349	349	department.
350	350	Sec. 373.002. APPLICABILITY. (a) This chapter does not
351	351	apply to a toll project described in Section 228.011.
352	352	(b) This chapter does not apply to:
353	353	(1) any project for which the department has issued a
354	354	request for qualifications or request for competing proposals and
355	355	qualifications before May 1, 2007, except for the State Highway 161
356	356	project in Dallas County;
357	357	(2) the eastern extension of the President George Bush
358	358	Turnpike from State Highway 78 to IH 30 in Dallas County;
359	359	(3) the Phase 3 and 4 extensions of the Dallas North
360	360	Tollway in Collin and Denton Counties from State Highway 121 to the
361	361	Grayson County line, and the planned future extension into Grayson
362	362	County, regardless of which local toll project entity develops the
363	363	extension into Grayson County;
364	364	(4) the Lewisville Lake Bridge and portions of FM 720
365	365	widening projects in Denton County; or
366	366	(5) the Southwest Parkway (State Highway 121) in
367	367	Tarrant County from Dirks Road/Altamesa Boulevard to IH 30.
368	368	Sec. 373.003. PROJECT OWNED IN PERPETUITY. Unless a toll
369	369	project is sold or otherwise transferred to another toll project
370	370	entity in accordance with applicable law, including Sections
371	371	228.151, 284.011, 366.036, 366.172, and 370.171, a toll project
372	372	procured by the department or a local toll project entity
373	373	determined by the process under Subchapter B is owned by that entity
374	374	in perpetuity.
375	375	Sec. 373.004. GOVERNMENTAL AND NOT COMMERCIAL
376	376	TRANSACTIONS. A transaction involving a local toll project entity
377	377	under Section 228.011 or this chapter is not primarily commercial
378	378	in nature but is an inherently governmental transaction whose
379	379	purpose is to determine governmental jurisdiction, ownership,
380	380	control, or other responsibilities with respect to a project.
381	381	Sec. 373.005. VALUATION DETERMINATION. Any determination
382	382	of value, including best value, under this chapter or other
383	383	applicable federal or state law for a comprehensive development
384	384	agreement or other public-private partnership arrangement
385	385	involving a toll project located in the jurisdiction of a local toll
386	386	project entity must take into consideration factors the entity
387	387	determines appropriate, including factors that are significant,
388	388	but not quantifiable, such as factors related to:
389	389	(1) oversight of the toll project;
390	390	(2) maintenance and operations costs of the toll
391	391	project;
392	392	(3) the structure and rates of tolls;
393	393	(4) economic development impacts of the toll project;
394	394	and
395	395	(5) social and environmental benefits and impacts of
396	396	the toll project.
397	397	Sec. 373.006. LEGAL CHALLENGES CONCLUDED. For the purposes
398	398	of this chapter, all legal challenges to development of a toll
399	399	project are considered concluded when a judgment or order of a court
400	400	with jurisdiction over the challenge becomes final and
401	401	unappealable.
402	402	[Sections 373.007-373.050 reserved for expansion]
403	403	SUBCHAPTER B. PROCESS TO DETERMINE ENTITY TO DEVELOP, FINANCE,
404	404	CONSTRUCT, AND OPERATE TOLL PROJECT
405	405	Sec. 373.051. INITIATION OF PROCESS. (a) At any time after
406	406	a metropolitan planning organization approves the inclusion of a
407	407	toll project to be located in the territory of a local toll project
408	408	entity in the metropolitan transportation plan, the local toll
409	409	project entity may notify the department in writing of the local
410	410	toll project entity's intent to initiate the process described in
411	411	this subchapter.
412	412	(b) At any time after a metropolitan planning organization
413	413	approves the inclusion of a toll project to be located in the
414	414	territory of a local toll project entity in the metropolitan
415	415	transportation plan and all necessary environmental approvals for
416	416	the toll project have been secured, the department may notify the
417	417	local toll project entity in writing of the department's intent to
418	418	initiate the process described in this subchapter.
419	419	Sec. 373.052. PUBLIC PROJECT BY LOCAL TOLL PROJECT ENTITY.
420	420	(a) A local toll project entity has the first option to develop,
421	421	finance, construct, and operate a toll project as a publicly owned
422	422	and operated toll project. A local toll project entity has not more
423	423	than 180 days after the date on which notification under Section
424	424	373.051(a) is provided or notification under Section 373.051(b) is
425	425	received to decide whether to exercise the option. The option
426	426	period under this subsection may be extended an additional 90 days
427	427	by agreement of the department and the local toll project entity.
428	428	(b) If a local toll project entity exercises the option
429	429	under Subsection (a), the local toll project entity after
430	430	exercising the option must:
431	431	(1) within 180 days after the later of the date of
432	432	exercising its option or the date on which all environmental
433	433	approvals necessary for the development of the toll project are
434	434	secured and all legal challenges to development are concluded,
435	435	advertise for the initial procurement of required services,
436	436	including, at a minimum, design services, for the project; and
437	437	(2) within two years after the date on which all
438	438	environmental approvals necessary for the development are secured
439	439	and all legal challenges to development are concluded, enter into a
440	440	contract for the construction of the toll project.
441	441	Sec. 373.053. PUBLIC PROJECT BY DEPARTMENT. (a) If a local
442	442	toll project entity fails or declines to exercise the option to
443	443	develop, finance, construct, and operate a toll project under
444	444	Section 373.052(a), or fails or declines to advertise for
445	445	procurement or enter into a construction contract as required by
446	446	Section 373.052(b), the department has the option to develop,
447	447	finance, construct, and operate the toll project as a publicly
448	448	owned and operated project. The department has not more than 60
449	449	days after the date the local toll project entity fails or declines
450	450	to exercise its option under Section 373.052(a) or fails or
451	451	declines to advertise for procurement or enter into a construction
452	452	contract as required by Section 373.052(b) to decide whether to
453	453	exercise its option.
454	454	(b) If the department exercises its option under Subsection
455	455	(a), the department after exercising the option must:
456	456	(1) within 180 days after the later of the date of
457	457	exercising its option or the date on which all environmental
458	458	approvals necessary for the development of the toll project are
459	459	secured and all legal challenges to development are concluded,
460	460	advertise for the initial procurement of required services,
461	461	including, at a minimum, design services, for the project; and
462	462	(2) within two years after the date on which all
463	463	environmental approvals necessary for the development are secured
464	464	and all legal challenges to development are concluded, enter into a
465	465	contract for the construction of the toll project.
466	466	Sec. 373.054. PRIVATE PROJECT BY LOCAL TOLL PROJECT ENTITY.
467	467	(a) If the department fails or declines to exercise the option to
468	468	develop, finance, construct, and operate a toll project under
469	469	Section 373.053(a), or fails or declines to advertise for
470	470	procurement or enter into a construction contract as required by
471	471	Section 373.053(b), the local toll project entity has the option to
472	472	develop, finance, construct, and operate the toll project as a
473	473	privately operated or controlled toll project. The local toll
474	474	project entity has not more than 60 days after the date the
475	475	department fails or declines to exercise its option under Section
476	476	373.053(a) or fails or declines to advertise for procurement or
477	477	enter into a construction contract as required by Section
478	478	373.053(b) to decide whether to exercise its option.
479	479	(b) If the local toll project entity exercises its option
480	480	under Subsection (a), the local toll project entity after
481	481	exercising the option must:
482	482	(1) within 180 days after the later of the date of
483	483	exercising its option or the date on which all environmental
484	484	approvals necessary for the development of the toll project are
485	485	secured and all legal challenges to development are concluded,
486	486	advertise for the initial procurement of required services,
487	487	including, at a minimum, design services, for the project; and
488	488	(2) within two years after the date on which all
489	489	environmental approvals necessary for the development are secured
490	490	and all legal challenges to development are concluded, enter into a
491	491	contract for the construction of the toll project.
492	492	Sec. 373.055. PRIVATE PROJECT BY DEPARTMENT. (a) If a
493	493	local toll project entity fails or declines to exercise the option
494	494	to develop, finance, construct, and operate a toll project under
495	495	Section 373.054(a), or fails or declines to advertise for
496	496	procurement or enter into a construction contract as required by
497	497	Section 373.054(b), the department has the option to develop,
498	498	finance, construct, and operate the toll project as a privately
499	499	operated or controlled toll project. The department has not more
500	500	than 60 days after the date the local toll project entity fails or
501	501	declines to exercise its option under Section 373.054(a) or fails
502	502	or declines to advertise for procurement or enter into a
503	503	construction contract as required by Section 373.054(b) to decide
504	504	whether to exercise its option.
505	505	(b) If the department exercises its option under Subsection
506	506	(a), the department after exercising the option must:
507	507	(1) within 180 days after the later of the date of
508	508	exercising its option or the date on which all environmental
509	509	approvals necessary for the development of the toll project are
510	510	secured and all legal challenges to development are concluded,
511	511	advertise for the initial procurement of required services,
512	512	including, at a minimum, design services, for the project; and
513	513	(2) within two years after the date on which all
514	514	environmental approvals necessary for the development are secured
515	515	and all legal challenges to development are concluded, enter into a
516	516	contract for the construction of the toll project.
517	517	Sec. 373.056. RE-INITIATION OF PROCESS. If the process
518	518	described by Sections 373.051, 373.052, 373.053, 373.054, and
519	519	373.055 concludes without the local toll project entity or the
520	520	department entering into a contract for the construction of the
521	521	toll project, either entity may re-initiate the process under this
522	522	subchapter by submitting notice to the other entity in the manner
523	523	provided by Section 373.051.
524	524	Sec. 373.057. ALTERATION OF PROCESS. (a) The department or
525	525	the applicable local toll project entity may waive any step or steps
526	526	of the process under this subchapter.
527	527	(b) The department and the applicable toll project entity
528	528	may, by written agreement, extend any time limit under this
529	529	subchapter.
530	530	Sec. 373.058. SHARING OF PROJECT-RELATED INFORMATION. (a)
531	531	If a local toll project entity or the department fails or declines
532	532	to exercise an option or fails or declines to advertise for
533	533	procurement or enter into a construction contract under Section
534	534	373.052, 373.053, 373.054, or 373.055, the local toll project
535	535	entity or the department, as applicable, must make available its
536	536	traffic estimates, revenue estimates, plans, specifications,
537	537	surveys, appraisals, and other work product developed for the toll
538	538	project to the other entity.
539	539	(b) On entering into a contract for the construction of the
540	540	toll project, the department or the local toll project entity, as
541	541	applicable, shall reimburse the other entity for shared project
542	542	work product that it uses.
543	543	Sec. 373.059. QUARTERLY PROGRESS REPORTS. After the
544	544	department or a local toll project entity exercises an option under
545	545	this subchapter, the department or local toll project entity, as
546	546	applicable, shall issue a quarterly report on the progress of the
547	547	development of the toll project. The report shall be made available
548	548	to the public.
549	549	Sec. 373.060. ENVIRONMENTAL REVIEW. (a) The department or
550	550	the local toll project entity may begin any environmental review
551	551	process that may be required for a proposed toll project before
552	552	initiating the process under this subchapter.
553	553	(b) If a local toll project entity initiates the process for
554	554	development of a toll project under Section 373.051(a) and has not
555	555	begun the environmental review of the project, the local toll
556	556	project entity shall begin the environmental review within 180 days
557	557	of exercising the option.
558	558	[Sections 373.061-373.100 reserved for expansion]
559	559	SUBCHAPTER C. USE OF RIGHT-OF-WAY BY LOCAL TOLL PROJECT ENTITY
560	560	Sec. 373.101. USE OF STATE HIGHWAY RIGHT-OF-WAY. (a)
561	561	Consistent with federal law, the commission and the department
562	562	shall assist a local toll project entity in the development,
563	563	financing, construction, and operation of a toll project for which
564	564	the local toll project entity has exercised its option to develop,
565	565	finance, construct, and operate the project under Subchapter B by
566	566	allowing the local toll project entity to use state highway
567	567	right-of-way and to access the state highway system as necessary to
568	568	construct and operate the toll project.
569	569	(b) Notwithstanding any other law, the toll project entity
570	570	and the commission may agree to remove the toll project from the
571	571	state highway system and transfer ownership to the local toll
572	572	project entity.
573	573	Sec. 373.102. REIMBURSEMENT FOR USE OF STATE HIGHWAY
574	574	RIGHT-OF-WAY. (a) The commission or the department may not require
575	575	a local toll project entity to pay for the use of state highway
576	576	right-of-way or access, except:
577	577	(1) to reimburse the department for actual costs
578	578	incurred by the department that are owed to a third party, including
579	579	the federal government, as a result of that use by the local toll
580	580	project entity; and
581	581	(2) as required under Subsection (b).
582	582	(b) A local toll project entity shall reimburse the
583	583	department for the department's actual costs to acquire the
584	584	right-of-way in the manner provided in the payment schedule agreed
585	585	to by the department and the local toll project entity. If the
586	586	department cannot determine that amount, the amount must be
587	587	determined based on the average historical right-of-way
588	588	acquisition values for comparable right-of-way located in
589	589	proximity to the project on the date of original acquisition of the
590	590	right-of-way.
591	591	(c) In lieu of reimbursement, the local toll project entity
592	592	may agree to pay to the department, for an agreed period of time, a
593	593	portion of the net revenues of the project.
594	594	(d) Money received by the department under this section
595	595	shall be deposited in the state highway fund and, except for
596	596	reimbursement for costs owed to a third party, used to fund
597	597	additional projects in the department district in which the toll
598	598	project is located.
599	599	(e) The commission or department may waive the requirement
600	600	of reimbursement under this section.
601	601	Sec. 373.103. AGREEMENT FOR USE OF RIGHT-OF-WAY. A local
602	602	toll project entity shall enter into an agreement with the
603	603	department for any project for which the entity has exercised its
604	604	option to develop, finance, construct, and operate the project
605	605	under Subchapter B and for which the entity intends to use state
606	606	highway right-of-way. The agreement must contain provisions
607	607	necessary to ensure that the local toll project entity's
608	608	construction, maintenance, and operation of the project complies
609	609	with the requirements of applicable state and federal law.
610	610	Sec. 373.104. LIABILITY FOR DAMAGES. (a) Notwithstanding
611	611	any other law, the commission and the department are not liable for
612	612	any damages that result from a local toll project entity's use of
613	613	state highway right-of-way or access to the state highway system
614	614	under this subchapter, regardless of the legal theory, statute, or
615	615	cause of action under which liability is asserted.
616	616	(b) An agreement entered into by a local toll project entity
617	617	and the department in connection with a toll project that is
618	618	financed, constructed, or operated by the local toll project entity
619	619	and that is on or directly connected to a highway in the state
620	620	highway system does not create a joint enterprise for liability
621	621	purposes.
622	622	Sec. 373.105. COMPLIANCE WITH FEDERAL LAW. Notwithstanding
623	623	an action taken by a local toll project entity under this
624	624	subchapter, the commission or department may take any action that
625	625	in its reasonable judgment is necessary to comply with any federal
626	626	requirement to enable this state to receive federal-aid highway
627	627	funds.
628	628	SECTION 16. The following sections are repealed:
629	629	(1) Sections 228.0111 and 228.012, Transportation
630	630	Code; and
631	631	(2) Section 371.052(c), Transportation Code, as added
632	632	by Section 11.01, Chapter 264 (S.B. 792), Acts of the 80th
633	633	Legislature, Regular Session, 2007.
634	634	SECTION 17. This Act takes effect September 1, 2009.