Texas 2009 - 81st Regular

Texas Senate Bill SB17 Compare Versions

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1	1	81R33669 E
2	2	By: Nichols, Carona, Nelson, Patrick, Dan,Shapiro, et al. S.B. No. 17
3	3	Shapiro, et al.
4	4	Substitute the following for S.B. No. 17: No.
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to the design, development, financing, construction, and
10	10	operation of certain toll projects; granting the authority to issue
11	11	bonds.
12	12	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
13	13	SECTION 1. Subsections (b) and (h), Section 223.208,
14	14	Transportation Code, are amended to read as follows:
15	15	(b) A comprehensive development agreement entered into
16	16	under this subchapter or Section 227.023(c) must include a
17	17	provision [may include any provision that the department considers
18	18	appropriate, including provisions:
19	19	[(1)] providing for the purchase by the department[,
20	20	under terms and conditions agreed to by the parties,] of the
21	21	interest of a private participant in the comprehensive development
22	22	agreement and related property as required by Section 371.101 and
23	23	may include any other provision the department considers
24	24	appropriate, including a provision:
25	25	(1) [, including any interest in a highway or other
26	26	facility designed, developed, financed, constructed, operated, or
27	27	maintained under the comprehensive development agreement;
28	28	[(2) establishing the purchase price for the interest
29	29	of a private participant in the comprehensive development agreement
30	30	and related property, which price may be determined in accordance
31	31	with the methodology established by the parties in the
32	32	comprehensive development agreement;
33	33	[(3)] providing for the payment of obligations
34	34	incurred pursuant to the comprehensive development agreement,
35	35	including any obligation to pay the purchase price for the interest
36	36	of a private participant in the comprehensive development
37	37	agreement, from any lawfully available source, including securing
38	38	such obligations by a pledge of revenues of the commission or the
39	39	department derived from the applicable project, which pledge shall
40	40	have such priority as the department may establish;
41	41	(2) [(4)] permitting the private participant to
42	42	pledge its rights under the comprehensive development agreement;
43	43	(3) [(5)] concerning the private participant's right
44	44	to operate and collect revenue from the project; and
45	45	(4) [(6)] restricting the right of the commission or
46	46	the department to terminate the private participant's right to
47	47	operate and collect revenue from the project unless and until any
48	48	applicable termination payments have been made.
49	49	(h) A comprehensive development agreement with a private
50	50	participant that includes the collection by the private participant
51	51	of tolls for the use of a toll project may be for a term not longer
52	52	than 50 years from the later of the date of final acceptance of the
53	53	project or the start of revenue operations by the private
54	54	participant, not to exceed a total term of 52 years. [The
55	55	comprehensive development agreement must contain an explicit
56	56	mechanism for setting the price for the purchase by the department
57	57	of the interest of the private participant in the comprehensive
58	58	development agreement and related property, including any interest
59	59	in a highway or other facility designed, developed, financed,
60	60	constructed, operated, or maintained under the agreement.]
61	61	SECTION 2. Section 228.006, Transportation Code, is amended
62	62	by amending Subsection (a) and adding Subsection (a-1) to read as
63	63	follows:
64	64	(a) The commission shall authorize the use of surplus
65	65	revenue of a toll project or system to pay the costs of a
66	66	transportation project, highway project, or air quality project
67	67	within a region [department district] in which any part of the toll
68	68	project is located.
69	69	(a-1) The department shall allocate the distribution of the
70	70	surplus toll revenue to department districts in the region that are
71	71	located in the boundaries of the metropolitan planning organization
72	72	in which the toll project or system producing the surplus revenue is
73	73	located based on the percentage of toll revenue from users in each
74	74	department district of the project or system. To assist the
75	75	department in determining the allocation, each entity responsible
76	76	for collecting tolls for a project or system shall calculate on an
77	77	annual basis the percentage of toll revenue from users of the
78	78	project or system in each department district based on the number of
79	79	recorded electronic toll collections.
80	80	SECTION 3. Section 228.012, Transportation Code, is amended
81	81	to read as follows:
82	82	Sec. 228.012. PROJECT SUBACCOUNTS. (a) The department
83	83	shall create a separate account in the state highway fund to hold
84	84	payments received by the department under a comprehensive
85	85	development agreement and[,] the surplus revenue of a toll project
86	86	or system[, and payments received under Sections 228.0111(g)(2) and
87	87	(i)(2)]. The department shall create subaccounts in the account
88	88	for each project, system, or region. Interest earned on money in a
89	89	subaccount shall be deposited to the credit of that subaccount.
90	90	(b) The department shall hold money in a subaccount in trust
91	91	for the benefit of the region in which a project or system is
92	92	located and may assign the responsibility for allocating money in a
93	93	subaccount to a metropolitan planning organization in which the
94	94	region is located. Money [Except as provided by Subsection (c),
95	95	money] shall be allocated to projects authorized by Section
96	96	228.0055 or Section 228.006, as applicable.
97	97	(c) [Money in a subaccount received from a county or the
98	98	department under Section 228.0111 in connection with a project for
99	99	which a county acting under Chapter 284 has the first option shall
100	100	be allocated to transportation projects located in the county and
101	101	the counties contiguous to that county.
102	102	[(d)] Not later than January 1 of each odd-numbered year,
103	103	the department shall submit to the Legislative Budget Board, in the
104	104	format prescribed by the Legislative Budget Board, a report on cash
105	105	balances in the subaccounts created under this section and
106	106	expenditures made with money in those subaccounts.
107	107	(d) [(e)] The commission or the department may not:
108	108	(1) revise the formula as provided in the department's
109	109	unified transportation program or a successor document in a manner
110	110	that results in a decrease of a department district's allocation
111	111	because of the deposit of a payment into a project subaccount [or a
112	112	commitment to undertake an additional transportation project under
113	113	Section 228.0111]; or
114	114	(2) take any other action that would reduce funding
115	115	allocated to a department district because of the deposit of a
116	116	payment [received from the department or local toll project entity]
117	117	into a project subaccount [or a commitment to undertake an
118	118	additional transportation project under Section 228.0111].
119	119	SECTION 4. Subsection (b), Section 284.004, Transportation
120	120	Code, is amended to read as follows:
121	121	(b) In addition to authority granted by other law, a county
122	122	may use state highway right-of-way and may access state highway
123	123	right-of-way in accordance with Sections 228.011 and 373.102
124	124	[228.0111].
125	125	SECTION 5. Subsection (d), Section 284.061, Transportation
126	126	Code, is amended to read as follows:
127	127	(d) Subject to the reimbursement requirements of Section
128	128	373.102, a [A] county has full easements and rights-of-way through,
129	129	across, under, and over any property owned by this state that are
130	130	necessary or convenient to construct, acquire, or efficiently
131	131	operate a project under this chapter.
132	132	SECTION 6. Subsection (c), Section 366.170, Transportation
133	133	Code, is amended to read as follows:
134	134	(c) An authority has full easements and rights-of-way
135	135	through, across, under, and over any property owned by the state or
136	136	any local governmental entity that are necessary or convenient to
137	137	construct, acquire, or efficiently operate a turnpike project or
138	138	system under this chapter. This subsection does not affect the
139	139	obligation of the authority under other state law, including
140	140	Section 373.102, to compensate or reimburse the state for the use or
141	141	acquisition of an easement or right-of-way on property owned by or
142	142	on behalf of the state. An authority's use of property owned by or
143	143	on behalf of the state is subject to any covenants, conditions,
144	144	restrictions, or limitations affecting that property.
145	145	SECTION 7. Subsections (b) and (g), Section 366.407,
146	146	Transportation Code, are amended to read as follows:
147	147	(b) A comprehensive development agreement entered into
148	148	under this subchapter must [may] include [any provision the
149	149	authority considers appropriate, including] a provision[:
150	150	[(1)] providing for the purchase by the authority[,
151	151	under terms and conditions agreed to by the parties,] of the
152	152	interest of a private participant in the comprehensive development
153	153	agreement as required by Section 371.101 and may include any other
154	154	provision the authority considers appropriate, including a
155	155	provision:
156	156	(1) [and related property, including any interest in a
157	157	turnpike project designed, developed, financed, constructed,
158	158	operated, or maintained under the comprehensive development
159	159	agreement;
160	160	[(2) establishing the purchase price, as determined in
161	161	accordance with the methodology established by the parties in the
162	162	comprehensive development agreement, for the interest of a private
163	163	participant in the comprehensive development agreement and related
164	164	property;
165	165	[(3)] providing for the payment of an obligation
166	166	incurred under the comprehensive development agreement, including
167	167	an obligation to pay the purchase price for the interest of a
168	168	private participant in the comprehensive development agreement,
169	169	from any available source, including securing the obligation by a
170	170	pledge of revenues of the authority derived from the applicable
171	171	project, which pledge shall have priority as established by the
172	172	authority;
173	173	(2) [(4)] permitting the private participant to
174	174	pledge its rights under the comprehensive development agreement;
175	175	(3) [(5)] concerning the private participant's right
176	176	to operate and collect revenue from the turnpike project; and
177	177	(4) [(6)] restricting the right of the authority to
178	178	terminate the private participant's right to operate and collect
179	179	revenue from the turnpike project unless and until any applicable
180	180	termination payments have been made.
181	181	(g) A [Except as provided by this subsection, a]
182	182	comprehensive development agreement with a private participant
183	183	that includes the collection by the private participant of tolls
184	184	for the use of a toll project may be for a term not longer than 50
185	185	years from the later of the date of final acceptance of the project
186	186	or the start of revenue operations by the private participant, not
187	187	to exceed a total term of 52 years. [The contract must contain an
188	188	explicit mechanism for setting the price for the purchase by the
189	189	department of the interest of the private participant in the
190	190	contract and related property, including any interest in a highway
191	191	or other facility designed, developed, financed, constructed,
192	192	operated, or maintained under the contract.]
193	193	SECTION 8. Subsection (c), Section 370.169, Transportation
194	194	Code, is amended to read as follows:
195	195	(c) An authority has full easements and rights-of-way
196	196	through, across, under, and over any property owned by the state or
197	197	any local government that are necessary or convenient to construct,
198	198	acquire, or efficiently operate a transportation project or system
199	199	under this chapter. This subsection does not affect the obligation
200	200	of the authority under other law, including Section 373.102, to
201	201	compensate or reimburse this state for the use or acquisition of an
202	202	easement or right-of-way on property owned by or on behalf of this
203	203	state. An authority's use of property owned by or on behalf of this
204	204	state is subject to any covenants, conditions, restrictions, or
205	205	limitations affecting that property.
206	206	SECTION 9. Subsection (b), Section 370.311, Transportation
207	207	Code, is amended to read as follows:
208	208	(b) A comprehensive development agreement entered into
209	209	under Section 370.305 must include a provision authorizing the
210	210	authority to purchase, under terms agreed to by the parties, the
211	211	interest of a private equity investor in a transportation project
212	212	as required by Section 371.101.
213	213	SECTION 10. Section 371.002, Transportation Code, as added
214	214	by Chapter 264 (S.B. 792), Acts of the 80th Legislature, Regular
215	215	Session, 2007, is amended to read as follows:
216	216	Sec. 371.002. APPLICABILITY. This chapter does not apply
217	217	to:
218	218	(1) a project for which the commission selected an
219	219	apparent best value proposer before May 1, 2007; or
220	220	(2) a publicly owned and operated toll project, as
221	221	defined by Section 373.001.
222	222	SECTION 11. The heading to Section 371.052, Transportation
223	223	Code, as added by Chapter 264 (S.B. 792), Acts of the 80th
224	224	Legislature, Regular Session, 2007, is amended to read as follows:
225	225	Sec. 371.052. NOTIFICATION TO LEGISLATIVE BUDGET BOARD [AND
226	226	STATE AUDITOR].
227	227	SECTION 12. Section 371.101, Transportation Code, as added
228	228	by Chapter 264 (S.B. 792), Acts of the 80th Legislature, Regular
229	229	Session, 2007, is amended to read as follows:
230	230	Sec. 371.101. TERMINATION BY PURCHASE [FOR CONVENIENCE].
231	231	(a) A comprehensive development agreement must contain a
232	232	provision authorizing the toll project entity to purchase, under
233	233	terms agreed to by the parties:
234	234	(1) the interest of a private participant in the toll
235	235	project that is the subject of the agreement; and
236	236	(2) related property, including any interest in a
237	237	highway or other facility designed, developed, financed,
238	238	constructed, operated, or maintained under the agreement.
239	239	(b) The provision must include a schedule stating a specific
240	240	price for the purchase of the toll project at certain intervals from
241	241	the date the project opens, not less than one year and not to exceed
242	242	five years, over the term of the agreement.
243	243	(c) The provision must authorize the toll project entity to
244	244	purchase the private entity's interest at a stated interval in an
245	245	amount not to exceed the lesser of:
246	246	(1) the price stated for that interval; or
247	247	(2) the greater of:
248	248	(A) the then fair market value of the private
249	249	entity's interest; or
250	250	(B) an amount equal to the amount of outstanding
251	251	debt at that time, as specified in the comprehensive development
252	252	agreement.
253	253	(d) A toll project entity may not, under any circumstance,
254	254	purchase the private entity's interest for an amount higher than
255	255	the stated interval amount.
256	256	(e) A contract to purchase the private entity's interest at
257	257	the then fair market value as described by Subsection (c)(2)(A)
258	258	must contain a provision, mutually agreed on by the toll project
259	259	entity and the private participant, detailing the calculation used
260	260	to determine that value.
261	261	(f) The toll project entity shall request a proposed
262	262	termination-by-purchase schedule in each request for detailed
263	263	proposals and shall consider and score each schedule in each
264	264	evaluation of proposals.
265	265	(g) A private entity shall, not later than 12 months before
266	266	the date that a new price interval takes effect, notify the toll
267	267	project entity of the beginning of the price interval. The toll
268	268	project entity must notify the private entity as to whether it will
269	269	exercise the option to purchase under this section not later than
270	270	six months after the date it receives notice under this subsection.
271	271	(h) A toll project entity must notify the private entity of
272	272	the toll project entity's intention to purchase the private
273	273	entity's interest under this section not less than six months
274	274	before the date of the purchase [A toll project entity having
275	275	rulemaking authority by rule and a toll project entity without
276	276	rulemaking authority by official action shall develop a formula for
277	277	making termination payments to terminate a comprehensive
278	278	development agreement under which a private participant receives
279	279	the right to operate and collect revenue from a toll project. A
280	280	formula must calculate an estimated amount of loss to the private
281	281	participant as a result of the termination for convenience.
282	282	[(b) The formula shall be based on investments,
283	283	expenditures, and the internal rate of return on equity under the
284	284	agreed base case financial model as projected over the original
285	285	term of the agreement, plus an agreed percentage markup on that
286	286	amount.
287	287	[(c) A formula under Subsection (b) may not include any
288	288	estimate of future revenue from the project, if not included in an
289	289	agreed base case financial model under Subsection (b).
290	290	Compensation to the private participant upon termination for
291	291	convenience may not exceed the amount determined using the formula
292	292	under Subsection (b)].
293	293	SECTION 13. Section 371.102, Transportation Code, as added
294	294	by Chapter 264 (S.B. 792), Acts of the 80th Legislature, Regular
295	295	Session, 2007, is amended to read as follows:
296	296	Sec. 371.102. TERMINATION OF CERTAIN COMPREHENSIVE
297	297	DEVELOPMENT AGREEMENTS. (a) If a toll project entity elects to
298	298	terminate a comprehensive development agreement under which a
299	299	private participant receives the right to operate and collect
300	300	revenue from a project, the entity may:
301	301	(1) [if authorized to issue bonds for that purpose,]
302	302	issue bonds or other obligations to:
303	303	(A) make any applicable termination payments to
304	304	the private participant; or
305	305	(B) purchase the interest of the private
306	306	participant in the comprehensive development agreement or related
307	307	property; or
308	308	(2) provide for the payment of obligations of the
309	309	private participant incurred pursuant to the comprehensive
310	310	development agreement.
311	311	(b) A toll project entity has the same powers and duties
312	312	relating to the financing of payments under Subsection (a)(1) as
313	313	the toll project entity has under other applicable laws of this
314	314	state, including Chapters 228, 284, 366, and 370 of this code and
315	315	Chapter 1371, Government Code, relating to the financing of a toll
316	316	project of that entity, including the ability to deposit the
317	317	proceeds of bonds or other obligations and to pledge, encumber, and
318	318	expend the proceeds and revenues of a toll project as provided by
319	319	law.
320	320	(c) The powers held by the toll project entity include the
321	321	power to authorize the issuance of bonds or other obligations and to
322	322	pay all or part of the costs of a payment described in Subsection
323	323	(a)(1), in the amount determined by the toll project entity under
324	324	Section 371.101. Costs associated with a payment under Subsection
325	325	(a)(1) are considered a cost of the project.
326	326	(d) This section shall be liberally construed to effect its
327	327	purposes.
328	328	SECTION 14. Subsections (b) and (c), Section 371.103,
329	329	Transportation Code, as added by Chapter 264 (S.B. 792), Acts of the
330	330	80th Legislature, Regular Session, 2007, are amended to read as
331	331	follows:
332	332	(b) Except as provided by Subsection (c), a comprehensive
333	333	development agreement may contain a provision authorizing the toll
334	334	project entity to compensate the private participant in the
335	335	agreement for the loss of toll revenues attributable to the
336	336	construction by the entity of a limited access highway project
337	337	located within an area that extends up to four miles from either
338	338	side of the centerline of the project developed under the
339	339	agreement, less the private participant's decreased operating and
340	340	maintenance costs attributable to the highway project, if any. A
341	341	provision under this subsection may be effective only for a period
342	342	of 30 years or less from the effective date of the agreement.
343	343	(c) A comprehensive development agreement may not require
344	344	the toll project entity to provide compensation for the
345	345	construction of:
346	346	(1) a highway project contained in the state
347	347	transportation plan or a transportation plan of a metropolitan
348	348	planning organization in effect on the effective date of the
349	349	agreement;
350	350	(2) work on or improvements to a highway project
351	351	necessary for improved safety, or for maintenance or operational
352	352	purposes;
353	353	(3) a high occupancy vehicle exclusive lane addition
354	354	or other work on any highway project that is required by an
355	355	environmental regulatory agency; [or]
356	356	(4) a transportation project that provides a mode of
357	357	transportation that is not included in the project that is the
358	358	subject of the comprehensive development agreement; or
359	359	(5) a highway designated an interstate highway.
360	360	SECTION 15. Subtitle G, Title 6, Transportation Code, is
361	361	amended by adding Chapter 373 to read as follows:
362	362	CHAPTER 373. TOLL PROJECTS LOCATED IN TERRITORY OF LOCAL TOLL
363	363	PROJECT ENTITY
364	364	SUBCHAPTER A. GENERAL PROVISIONS
365	365	Sec. 373.001. DEFINITIONS. In this chapter:
366	366	(1) "Local toll project entity" means an entity, other
367	367	than the department, that is authorized by law to acquire, design,
368	368	construct, finance, operate, and maintain a toll project,
369	369	including:
370	370	(A) a regional tollway authority under Chapter
371	371	366;
372	372	(B) a regional mobility authority under Chapter
373	373	370; or
374	374	(C) a county acting under Chapter 284.
375	375	(2) "Privately operated or controlled toll project"
376	376	means a toll project that is primarily commercial in nature and is
377	377	designed and constructed by a private entity that holds a leasehold
378	378	interest in or the right to operate and retain revenues from the
379	379	toll project, regardless of whether the private entity operates the
380	380	toll project or collects the revenue itself or engages a
381	381	subcontractor or other entity to operate the toll project or
382	382	collect the revenue. The term does not include a toll project for
383	383	which the department or a toll project entity contracts with a
384	384	private entity only for engineering, design, construction,
385	385	finance, operation, maintenance, or other services.
386	386	(3) "Publicly owned and operated toll project" means a
387	387	toll project owned and operated by the department or a local toll
388	388	project entity in which a private entity does not have a leasehold
389	389	interest or right to operate or retain revenue from the toll
390	390	project. The term does not include a privately operated or
391	391	controlled toll project, but may include a toll project for which a
392	392	private entity provides:
393	393	(A) engineering, design, construction, finance,
394	394	operation, maintenance, or other services; or
395	395	(B) financial assistance for the toll project
396	396	that does not entitle the private entity to any ownership interest
397	397	in or the right to operate or retain revenue from the toll project.
398	398	(4) "Toll project" means a toll project described by
399	399	Section 201.001(b), regardless of whether the toll project is:
400	400	(A) a part of the state highway system; or
401	401	(B) subject to the jurisdiction of the
402	402	department.
403	403	Sec. 373.002. APPLICABILITY. (a) This chapter does not
404	404	apply to a toll project described in Section 228.011.
405	405	(b) Except for Sections 373.003, 373.004, and 373.005, this
406	406	chapter does not apply to:
407	407	(1) the State Highway 161 project from State Highway
408	408	183 to IH 20 in Dallas County;
409	409	(2) the U.S. 281 project in Bexar County from Loop 1604
410	410	to the Comal County line;
411	411	(3) the Loop 49 project from IH 20 to State Highway 110
412	412	in Smith County;
413	413	(4) the DFW Connector project in Tarrant and Dallas
414	414	Counties (State Highway 114 from State Highway 114L Business to
415	415	east of International Parkway and State Highway 121 from north of FM
416	416	2499 to south of State Highway 360);
417	417	(5) the North Tarrant Express project in Tarrant and
418	418	Dallas Counties (IH 820 and State Highway 121/State Highway 183
419	419	from IH 35W to State Highway 161, IH 820 east from State Highway
420	420	121/State Highway 183 to Randol Mill Road, and IH 35W from IH 30 to
421	421	State Highway 170);
422	422	(6) the U.S. 290 project from east of U.S. 183 to east
423	423	of FM 973 in Travis County;
424	424	(7) the State Highway 99 (Grand Parkway) project;
425	425	(8) the IH 635 managed lanes project in Dallas County
426	426	(IH 635 from east of Luna Road to Greenville Avenue and IH 35E from
427	427	south of the Loop 12/IH 35E split to south of Valwood Parkway);
428	428	(9) Phase 4 extension of the Dallas North Tollway in
429	429	Collin and Denton Counties from U.S. 380 to the Grayson County line
430	430	to be developed by North Texas Tollway Authority;
431	431	(10) the Southwest Parkway (State Highway 121) in
432	432	Tarrant County from Dirks Road/Altamesa Boulevard to IH 30; or
433	433	(11) the Loop 9 project in Dallas County.
434	434	Sec. 373.003. PROJECT OWNED IN PERPETUITY. Unless a toll
435	435	project is sold or otherwise transferred to another toll project
436	436	entity in accordance with applicable law, including Sections
437	437	228.151, 284.011, 366.036, 366.172, and 370.171, a toll project
438	438	procured by the department or a local toll project entity
439	439	determined by the process under Subchapter B is owned by that entity
440	440	in perpetuity.
441	441	Sec. 373.004. GOVERNMENTAL AND NOT COMMERCIAL
442	442	TRANSACTIONS. A transaction involving a local toll project entity
443	443	under Section 228.011 or this chapter is not primarily commercial
444	444	in nature but is an inherently governmental transaction whose
445	445	purpose is to determine governmental jurisdiction, ownership,
446	446	control, or other responsibilities with respect to a project.
447	447	Sec. 373.005. VALUATION DETERMINATION. Any determination
448	448	of value, including best value, under this chapter or other
449	449	applicable federal or state law for a comprehensive development
450	450	agreement or other public-private partnership arrangement
451	451	involving a toll project for which a local toll project entity has
452	452	exercised its option under this chapter and has complied with all
453	453	other conditions in this chapter for the development of the project
454	454	by the local toll project entity must take into consideration
455	455	factors the entity determines appropriate, including factors
456	456	related to:
457	457	(1) oversight of the toll project;
458	458	(2) maintenance and operations costs of the toll
459	459	project;
460	460	(3) the structure and rates of tolls;
461	461	(4) economic development impacts of the toll project;
462	462	and
463	463	(5) social and environmental benefits and impacts of
464	464	the toll project.
465	465	Sec. 373.006. LEGAL CHALLENGES CONCLUDED. For the purposes
466	466	of this chapter, all legal challenges to development of a toll
467	467	project are considered concluded when a judgment or order of a court
468	468	with jurisdiction over the challenge becomes final and
469	469	unappealable.
470	470	[Sections 373.007-373.050 reserved for expansion]
471	471	SUBCHAPTER B. PROCESS TO DETERMINE ENTITY TO DEVELOP, FINANCE,
472	472	CONSTRUCT, AND OPERATE TOLL PROJECT
473	473	Sec. 373.051. INITIATION OF PROCESS. (a) At any time
474	474	after a metropolitan planning organization approves the inclusion
475	475	of a toll project to be located in the territory of a local toll
476	476	project entity in the metropolitan transportation plan, the local
477	477	toll project entity may notify the department in writing of the
478	478	local toll project entity's intent to initiate the process
479	479	described in this subchapter.
480	480	(b) The department may notify the local toll project entity
481	481	in writing of the department's intent to initiate the process
482	482	described in this subchapter at any time after a metropolitan
483	483	planning organization has approved the inclusion of a toll project
484	484	to be located in the territory of a local toll project entity in the
485	485	metropolitan transportation plan and:
486	486	(1) the department has issued a finding of no
487	487	significant impact for the project, or for a project for which an
488	488	environmental impact statement is prepared, the department has
489	489	approved the final environmental impact statement for the project;
490	490	or
491	491	(2) for a project subject to environmental review
492	492	requirements under federal law, the United States Department of
493	493	Transportation Federal Highway Administration has issued a finding
494	494	of no significant impact, or for a project for which an
495	495	environmental impact statement is prepared, the department has
496	496	submitted a final environmental impact statement to the Federal
497	497	Highway Administration for approval.
498	498	Sec. 373.052. PUBLIC PROJECT BY LOCAL TOLL PROJECT ENTITY.
499	499	(a) A local toll project entity has the first option to develop,
500	500	finance, construct, and operate a toll project as a publicly owned
501	501	and operated toll project. A local toll project entity has not more
502	502	than 180 days after the date on which notification under Section
503	503	373.051(a) is provided or notification under Section 373.051(b) is
504	504	received to decide whether to exercise the option, unless the
505	505	United States Department of Transportation Federal Highway
506	506	Administration issues a record of decision for an environmental
507	507	impact statement submitted by the department under Section
508	508	373.051(b)(2) more than 60 days after the date the department
509	509	provides notice under Section 373.051(b), in which event the local
510	510	toll project entity has 120 days after the date the record of
511	511	decision is issued to exercise the option. The option period under
512	512	this subsection may be extended an additional 90 days by agreement
513	513	of the department and the local toll project entity.
514	514	(b) If a local toll project entity exercises the option
515	515	under Subsection (a), the local toll project entity after
516	516	exercising the option must:
517	517	(1) within 180 days after the later of the date of
518	518	exercising its option or the date on which all environmental
519	519	approvals necessary for the development of the toll project are
520	520	secured and all legal challenges to development are concluded,
521	521	advertise for the initial procurement of required services,
522	522	including, at a minimum, design services, for the project; and
523	523	(2) within two years after the date on which all
524	524	environmental approvals necessary for the development are secured
525	525	and all legal challenges to development are concluded, enter into a
526	526	contract for the construction of the toll project.
527	527	Sec. 373.053. PUBLIC PROJECT BY DEPARTMENT. (a) If a
528	528	local toll project entity fails or declines to exercise the option
529	529	to develop, finance, construct, and operate a toll project under
530	530	Section 373.052(a), or fails or declines to advertise for
531	531	procurement or enter into a construction contract as required by
532	532	Section 373.052(b), the department has the option to develop,
533	533	finance, construct, and operate the toll project as a publicly
534	534	owned and operated project. The department has not more than 60
535	535	days after the date the local toll project entity fails or declines
536	536	to exercise its option under Section 373.052(a) or fails or
537	537	declines to advertise for procurement or enter into a construction
538	538	contract as required by Section 373.052(b) to decide whether to
539	539	exercise its option.
540	540	(b) If the department exercises its option under Subsection
541	541	(a), the department after exercising the option must:
542	542	(1) within 180 days after the later of the date of
543	543	exercising its option or the date on which all environmental
544	544	approvals necessary for the development of the toll project are
545	545	secured and all legal challenges to development are concluded,
546	546	advertise for the initial procurement of required services,
547	547	including, at a minimum, design services, for the project; and
548	548	(2) within two years after the date on which all
549	549	environmental approvals necessary for the development are secured
550	550	and all legal challenges to development are concluded, enter into a
551	551	contract for the construction of the toll project.
552	552	Sec. 373.054. PRIVATE PROJECT BY LOCAL TOLL PROJECT ENTITY.
553	553	(a) If the department fails or declines to exercise the option to
554	554	develop, finance, construct, and operate a toll project under
555	555	Section 373.053(a), or fails or declines to advertise for
556	556	procurement or enter into a construction contract as required by
557	557	Section 373.053(b), the local toll project entity has the option to
558	558	develop, finance, construct, and operate the toll project as a
559	559	privately operated or controlled toll project. Except as provided
560	560	by Section 373.057(b), the local toll project entity has not more
561	561	than 60 days after the date the department fails or declines to
562	562	exercise its option under Section 373.053(a) or fails or declines
563	563	to advertise for procurement or enter into a construction contract
564	564	as required by Section 373.053(b) to decide whether to exercise its
565	565	option.
566	566	(b) If the local toll project entity exercises its option
567	567	under Subsection (a), the local toll project entity after
568	568	exercising the option must:
569	569	(1) within 180 days after the later of the date of
570	570	exercising its option or the date on which all environmental
571	571	approvals necessary for the development of the toll project are
572	572	secured and all legal challenges to development are concluded,
573	573	advertise for the initial procurement of required services,
574	574	including, at a minimum, design services, for the project; and
575	575	(2) within two years after the date on which all
576	576	environmental approvals necessary for the development are secured
577	577	and all legal challenges to development are concluded, enter into a
578	578	contract for the construction of the toll project.
579	579	Sec. 373.055. PRIVATE PROJECT BY DEPARTMENT. (a) If a
580	580	local toll project entity fails or declines to exercise the option
581	581	to develop, finance, construct, and operate a toll project under
582	582	Section 373.054(a), or fails or declines to advertise for
583	583	procurement or enter into a construction contract as required by
584	584	Section 373.054(b), the department has the option to develop,
585	585	finance, construct, and operate the toll project as a privately
586	586	operated or controlled toll project. The department has not more
587	587	than 60 days after the date the local toll project entity fails or
588	588	declines to exercise its option under Section 373.054(a) or fails
589	589	or declines to advertise for procurement or enter into a
590	590	construction contract as required by Section 373.054(b) to decide
591	591	whether to exercise its option.
592	592	(b) If the department exercises its option under Subsection
593	593	(a), the department after exercising the option must:
594	594	(1) within 180 days after the later of the date of
595	595	exercising its option or the date on which all environmental
596	596	approvals necessary for the development of the toll project are
597	597	secured and all legal challenges to development are concluded,
598	598	advertise for the initial procurement of required services,
599	599	including, at a minimum, design services, for the project; and
600	600	(2) within two years after the date on which all
601	601	environmental approvals necessary for the development are secured
602	602	and all legal challenges to development are concluded, enter into a
603	603	contract for the construction of the toll project.
604	604	Sec. 373.056. RE-INITIATION OF PROCESS. If the process
605	605	described by Sections 373.051, 373.052, 373.053, 373.054, and
606	606	373.055 concludes without the local toll project entity or the
607	607	department entering into a contract for the construction of the
608	608	toll project, either entity may re-initiate the process under this
609	609	subchapter by submitting notice to the other entity in the manner
610	610	provided by Section 373.051.
611	611	Sec. 373.057. WAIVER OF OPTION; ALTERATION OF TIMELINES.
612	612	(a) The department or local toll project entity may at any time
613	613	during the process established by this subchapter, including when
614	614	the process is initiated under Section 373.051, decline to exercise
615	615	an option of that entity under this subchapter.
616	616	(b) If the department declines to exercise its option under
617	617	Section 373.053 before the 120th day after the date on which
618	618	notification under Section 373.051(a) is provided to the local toll
619	619	project entity or notification under Section 373.051(b) is received
620	620	by the toll project entity, the local toll project entity must, in
621	621	addition to deciding whether to exercise its option under Section
622	622	373.052, decide whether to exercise its option under Section
623	623	373.054 not later than the later of:
624	624	(1) the 180th day after the date notice is provided or
625	625	received; or
626	626	(2) the end of the option period as extended under
627	627	Section 373.052.
628	628	(c) The department and the applicable local toll project
629	629	entity may, by written agreement, extend any time limit under this
630	630	subchapter.
631	631	Sec. 373.058. SHARING OF PROJECT-RELATED INFORMATION.
632	632	(a) If a local toll project entity or the department fails or
633	633	declines to exercise an option or fails or declines to advertise for
634	634	procurement or enter into a construction contract under Section
635	635	373.052, 373.053, 373.054, or 373.055, the local toll project
636	636	entity or the department, as applicable, must make available its
637	637	traffic estimates, revenue estimates, plans, specifications,
638	638	surveys, appraisals, and other work product developed for the toll
639	639	project to the other entity.
640	640	(b) On entering into a contract for the construction of the
641	641	toll project, the department or the local toll project entity, as
642	642	applicable, shall reimburse the other entity for shared project
643	643	work product that it uses.
644	644	Sec. 373.059. QUARTERLY PROGRESS REPORTS. After the
645	645	department or a local toll project entity exercises an option under
646	646	this subchapter, the department or local toll project entity, as
647	647	applicable, shall issue a quarterly report on the progress of the
648	648	development of the toll project. The report shall be made available
649	649	to the public.
650	650	Sec. 373.060. ENVIRONMENTAL REVIEW. (a) The department
651	651	or the local toll project entity may begin any environmental review
652	652	process that may be required for a proposed toll project before
653	653	initiating the process under this subchapter.
654	654	(b) If a local toll project entity initiates the process for
655	655	development of a toll project under Section 373.051(a) and has not
656	656	begun the environmental review of the project, the local toll
657	657	project entity shall begin the environmental review within 180 days
658	658	of exercising the option.
659	659	Sec. 373.061. PROJECT LOCATED IN TERRITORY OF MORE THAN ONE
660	660	LOCAL TOLL PROJECT ENTITY. If a toll project is in the territory of
661	661	more than one local toll project entity, only the local toll project
662	662	entity that was first to be authorized by law to construct toll
663	663	projects in that territory may exercise the options and other
664	664	rights under this subchapter. A local toll project entity
665	665	exercising an option or other right under this section:
666	666	(1) may do so only with respect to the portion of the
667	667	project located in the territory of that local toll project entity;
668	668	and
669	669	(2) may do so on behalf of another toll project entity
670	670	in whose territory the project will be located.
671	671	[Sections 373.062-373.100 reserved for expansion]
672	672	SUBCHAPTER C. USE OF RIGHT-OF-WAY BY LOCAL TOLL PROJECT ENTITY
673	673	Sec. 373.101. USE OF STATE HIGHWAY RIGHT-OF-WAY.
674	674	(a) Consistent with federal law, the commission and the department
675	675	shall assist a local toll project entity in the development,
676	676	financing, construction, and operation of a toll project for which
677	677	the local toll project entity has exercised its option to develop,
678	678	finance, construct, and operate the project under Subchapter B by
679	679	allowing the local toll project entity to use state highway
680	680	right-of-way and to access the state highway system as necessary to
681	681	construct and operate the toll project.
682	682	(b) Notwithstanding any other law, the local toll project
683	683	entity and the commission may agree to remove the toll project from
684	684	the state highway system and transfer ownership to the local toll
685	685	project entity.
686	686	Sec. 373.102. REIMBURSEMENT FOR USE OF STATE HIGHWAY
687	687	RIGHT-OF-WAY. (a) The commission or the department may not
688	688	require a local toll project entity to pay for the use of state
689	689	highway right-of-way or access, except:
690	690	(1) to reimburse the department for actual costs
691	691	incurred by the department that are owed to a third party, including
692	692	the federal government, as a result of that use by the local toll
693	693	project entity; and
694	694	(2) as required under Subsection (b).
695	695	(b) A local toll project entity shall reimburse the
696	696	department for the department's actual costs to acquire the
697	697	right-of-way in the manner provided in the payment schedule agreed
698	698	to by the department and the local toll project entity. If the
699	699	department cannot determine that amount, the amount must be
700	700	determined based on the average historical right-of-way
701	701	acquisition values for comparable right-of-way located in
702	702	proximity to the project on the date of original acquisition of the
703	703	right-of-way.
704	704	(c) In lieu of reimbursement, the local toll project entity
705	705	may agree to pay to the department a portion of the revenues of the
706	706	project, in the amount and for the period of time agreed to by the
707	707	local toll project entity and the department.
708	708	(d) Money received by the department under this section
709	709	shall be deposited in the state highway fund and, except for
710	710	reimbursement for costs owed to a third party, used to fund
711	711	additional projects in the department district in which the toll
712	712	project is located.
713	713	(e) The commission or department may waive the requirement
714	714	of reimbursement under this section.
715	715	Sec. 373.103. AGREEMENT FOR USE OF RIGHT-OF-WAY. A local
716	716	toll project entity shall enter into an agreement with the
717	717	department for any project for which the entity has exercised its
718	718	option to develop, finance, construct, and operate the project
719	719	under Subchapter B and for which the entity intends to use state
720	720	highway right-of-way. The agreement must contain provisions
721	721	necessary to ensure that the local toll project entity's
722	722	construction, maintenance, and operation of the project complies
723	723	with the requirements of applicable state and federal law.
724	724	Sec. 373.104. LIABILITY FOR DAMAGES. (a) Notwithstanding
725	725	any other law, the commission and the department are not liable for
726	726	any damages that result from a local toll project entity's use of
727	727	state highway right-of-way or access to the state highway system
728	728	under this subchapter, regardless of the legal theory, statute, or
729	729	cause of action under which liability is asserted.
730	730	(b) An agreement entered into by a local toll project entity
731	731	and the department in connection with a toll project that is
732	732	financed, constructed, or operated by the local toll project entity
733	733	and that is on or directly connected to a highway in the state
734	734	highway system does not create a joint enterprise for liability
735	735	purposes.
736	736	Sec. 373.105. COMPLIANCE WITH FEDERAL LAW. Notwithstanding
737	737	an action taken by a local toll project entity under this
738	738	subchapter, the commission or department may take any action that
739	739	in its reasonable judgment is necessary to comply with any federal
740	740	requirement to enable this state to receive federal-aid highway
741	741	funds.
742	742	SECTION 16. Section 228.012, Transportation Code, as
743	743	amended by this Act, applies only to payments received by the Texas
744	744	Department of Transportation under that section on or after the
745	745	effective date of this Act. Payments received by the department
746	746	under Section 228.012, Transportation Code, before the effective
747	747	date of this Act are governed by the law in effect immediately
748	748	before the effective date of this Act, and that law is continued in
749	749	effect for that purpose.
750	750	SECTION 17. The changes in law made by this Act to Sections
751	751	371.101 and 371.103, Transportation Code, do not apply to a project
752	752	described in Subdivision (1), (4), (5), (7), (8), or (11),
753	753	Subsection (b), Section 373.002, Transportation Code, as added by
754	754	this Act. A project described in those subdivisions is governed by
755	755	Sections 371.101 and 371.103, Transportation Code, as those
756	756	sections existed immediately before the effective date of this Act,
757	757	and those laws are continued in effect for that purpose.
758	758	SECTION 18. (a) Section 371.101, Transportation Code, as
759	759	amended by this Act, does not apply to a comprehensive development
760	760	agreement for:
761	761	(1) a project located south of Refugio County on the
762	762	ISTEA High Priority Corridor identified in Sections 1105(c)(18) and
763	763	(20) of the Intermodal Surface Transportation Efficiency Act of
764	764	1991 (Pub. L. No. 102-240), as amended by Section 1211 of the
765	765	Transportation Equity Act for the 21st Century (Pub. L. No.
766	766	105-178, as amended by Title IX, Pub. L. No. 105-206), if the
767	767	project is part of the highway corridor designated by those laws;
768	768	(2) the following projects to be developed in
769	769	connection with the projects described under Subdivision (1):
770	770	(A) the Corpus Christi Southside Mobility
771	771	Corridor;
772	772	(B) the State Highway 358 managed lanes project
773	773	and the State Highway 286 managed lanes project in Nueces County;
774	774	and
775	775	(C) the State Highway 550 spur project and the
776	776	West Loop project in Cameron County; or
777	777	(3) a project on the IH 69 corridor in Bowie County.
778	778	(b) A project described by this section is governed by
779	779	Section 371.101, Transportation Code, as it existed immediately
780	780	before the effective date of this Act, and the former law is
781	781	continued in effect for that purpose.
782	782	SECTION 19. The change in law made by this Act to Section
783	783	223.208, Transportation Code, does not apply to a project described
784	784	in Subdivision (1), (4), (5), (7), (8), or (11), Subsection (b),
785	785	Section 373.002, Transportation Code, as added by this Act. A
786	786	project described in those subdivisions is governed by Section
787	787	223.208, Transportation Code, as it existed immediately before the
788	788	effective date of this Act, and that law is continued in effect for
789	789	that purpose.
790	790	SECTION 20. (a) The repeal of Section 228.0111,
791	791	Transportation Code, by this Act does not affect any project
792	792	described in Subsection (b), Section 373.002, Transportation Code,
793	793	as added by this Act. A project described in that subsection is
794	794	governed by Section 228.0111, Transportation Code, as it existed
795	795	immediately before the effective date of this Act, and that law is
796	796	continued in effect for that purpose.
797	797	(b) For the purposes of the application of Subdivision (1),
798	798	Subsection (g), Section 228.0111, Transportation Code, or
799	799	Subdivision (1), Subsection (i), Section 228.0111, Transportation
800	800	Code, under Subsection (a) of this section to the State Highway 99
801	801	(Grand Parkway) project, the local toll project entity or the
802	802	department, as applicable, must enter into a contract for the
803	803	construction of at least one segment of the project in the two-year
804	804	period described by Subdivision (1), Subsection (g), Section
805	805	228.0111, Transportation Code, or Subdivision (1), Subsection (i),
806	806	Section 228.0111, Transportation Code. For each of the remaining
807	807	segments, if the department and a local toll project entity have
808	808	entered into an agreement for the advance funding of the initial
809	809	segment, a local toll project entity or the department, as
810	810	applicable, is not required to enter into a construction contract
811	811	for any remaining segment before the second anniversary of the date
812	812	a construction contract for a segment contiguous to that remaining
813	813	segment has been entered into.
814	814	SECTION 21. The following sections are repealed:
815	815	(1) Section 228.0111, Transportation Code; and
816	816	(2) Subsection (c), Section 371.052, Transportation
817	817	Code, as added by Chapter 264 (S.B. 792), Acts of the 80th
818	818	Legislature, Regular Session, 2007.
819	819	SECTION 22. This Act takes effect immediately if it
820	820	receives a vote of two-thirds of all the members elected to each
821	821	house, as provided by Section 39, Article III, Texas Constitution.
822	822	If this Act does not receive the vote necessary for immediate
823	823	effect, this Act takes effect September 1, 2009.