81R33669 E
By: Nichols, Carona, Nelson, Patrick, Dan,Shapiro, et al. S.B. No. 17
Shapiro, et al.
Substitute the following for S.B. No. 17: No.
A BILL TO BE ENTITLED
AN ACT
relating to the design, development, financing, construction, and
operation of certain toll projects; granting the authority to issue
bonds.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subsections (b) and (h), Section 223.208,
Transportation Code, are amended to read as follows:
(b) A comprehensive development agreement entered into
under this subchapter or Section 227.023(c) must include a
provision [may include any provision that the department considers
appropriate, including provisions:
[(1)] providing for the purchase by the department[,
under terms and conditions agreed to by the parties,] of the
interest of a private participant in the comprehensive development
agreement and related property as required by Section 371.101 and
may include any other provision the department considers
appropriate, including a provision:
(1) [, including any interest in a highway or other
facility designed, developed, financed, constructed, operated, or
maintained under the comprehensive development agreement;
[(2) establishing the purchase price for the interest
of a private participant in the comprehensive development agreement
and related property, which price may be determined in accordance
with the methodology established by the parties in the
comprehensive development agreement;
[(3)] providing for the payment of obligations
incurred pursuant to the comprehensive development agreement,
including any obligation to pay the purchase price for the interest
of a private participant in the comprehensive development
agreement, from any lawfully available source, including securing
such obligations by a pledge of revenues of the commission or the
department derived from the applicable project, which pledge shall
have such priority as the department may establish;
(2) [(4)] permitting the private participant to
pledge its rights under the comprehensive development agreement;
(3) [(5)] concerning the private participant's right
to operate and collect revenue from the project; and
(4) [(6)] restricting the right of the commission or
the department to terminate the private participant's right to
operate and collect revenue from the project unless and until any
applicable termination payments have been made.
(h) A comprehensive development agreement with a private
participant that includes the collection by the private participant
of tolls for the use of a toll project may be for a term not longer
than 50 years from the later of the date of final acceptance of the
project or the start of revenue operations by the private
participant, not to exceed a total term of 52 years. [The
comprehensive development agreement must contain an explicit
mechanism for setting the price for the purchase by the department
of the interest of the private participant in the comprehensive
development agreement and related property, including any interest
in a highway or other facility designed, developed, financed,
constructed, operated, or maintained under the agreement.]
SECTION 2. Section 228.006, Transportation Code, is amended
by amending Subsection (a) and adding Subsection (a-1) to read as
follows:
(a) The commission shall authorize the use of surplus
revenue of a toll project or system to pay the costs of a
transportation project, highway project, or air quality project
within a region [department district] in which any part of the toll
project is located.
(a-1) The department shall allocate the distribution of the
surplus toll revenue to department districts in the region that are
located in the boundaries of the metropolitan planning organization
in which the toll project or system producing the surplus revenue is
located based on the percentage of toll revenue from users in each
department district of the project or system. To assist the
department in determining the allocation, each entity responsible
for collecting tolls for a project or system shall calculate on an
annual basis the percentage of toll revenue from users of the
project or system in each department district based on the number of
recorded electronic toll collections.
SECTION 3. Section 228.012, Transportation Code, is amended
to read as follows:
Sec. 228.012. PROJECT SUBACCOUNTS. (a) The department
shall create a separate account in the state highway fund to hold
payments received by the department under a comprehensive
development agreement and[,] the surplus revenue of a toll project
or system[, and payments received under Sections 228.0111(g)(2) and
(i)(2)]. The department shall create subaccounts in the account
for each project, system, or region. Interest earned on money in a
subaccount shall be deposited to the credit of that subaccount.
(b) The department shall hold money in a subaccount in trust
for the benefit of the region in which a project or system is
located and may assign the responsibility for allocating money in a
subaccount to a metropolitan planning organization in which the
region is located. Money [Except as provided by Subsection (c),
money] shall be allocated to projects authorized by Section
228.0055 or Section 228.006, as applicable.
(c) [Money in a subaccount received from a county or the
department under Section 228.0111 in connection with a project for
which a county acting under Chapter 284 has the first option shall
be allocated to transportation projects located in the county and
the counties contiguous to that county.
[(d)] Not later than January 1 of each odd-numbered year,
the department shall submit to the Legislative Budget Board, in the
format prescribed by the Legislative Budget Board, a report on cash
balances in the subaccounts created under this section and
expenditures made with money in those subaccounts.
(d) [(e)] The commission or the department may not:
(1) revise the formula as provided in the department's
unified transportation program or a successor document in a manner
that results in a decrease of a department district's allocation
because of the deposit of a payment into a project subaccount [or a
commitment to undertake an additional transportation project under
Section 228.0111]; or
(2) take any other action that would reduce funding
allocated to a department district because of the deposit of a
payment [received from the department or local toll project entity]
into a project subaccount [or a commitment to undertake an
additional transportation project under Section 228.0111].
SECTION 4. Subsection (b), Section 284.004, Transportation
Code, is amended to read as follows:
(b) In addition to authority granted by other law, a county
may use state highway right-of-way and may access state highway
right-of-way in accordance with Sections 228.011 and 373.102
[228.0111].
SECTION 5. Subsection (d), Section 284.061, Transportation
Code, is amended to read as follows:
(d) Subject to the reimbursement requirements of Section
373.102, a [A] county has full easements and rights-of-way through,
across, under, and over any property owned by this state that are
necessary or convenient to construct, acquire, or efficiently
operate a project under this chapter.
SECTION 6. Subsection (c), Section 366.170, Transportation
Code, is amended to read as follows:
(c) An authority has full easements and rights-of-way
through, across, under, and over any property owned by the state or
any local governmental entity that are necessary or convenient to
construct, acquire, or efficiently operate a turnpike project or
system under this chapter. This subsection does not affect the
obligation of the authority under other state law, including
Section 373.102, to compensate or reimburse the state for the use or
acquisition of an easement or right-of-way on property owned by or
on behalf of the state. An authority's use of property owned by or
on behalf of the state is subject to any covenants, conditions,
restrictions, or limitations affecting that property.
SECTION 7. Subsections (b) and (g), Section 366.407,
Transportation Code, are amended to read as follows:
(b) A comprehensive development agreement entered into
under this subchapter must [may] include [any provision the
authority considers appropriate, including] a provision[:
[(1)] providing for the purchase by the authority[,
under terms and conditions agreed to by the parties,] of the
interest of a private participant in the comprehensive development
agreement as required by Section 371.101 and may include any other
provision the authority considers appropriate, including a
provision:
(1) [and related property, including any interest in a
turnpike project designed, developed, financed, constructed,
operated, or maintained under the comprehensive development
agreement;
[(2) establishing the purchase price, as determined in
accordance with the methodology established by the parties in the
comprehensive development agreement, for the interest of a private
participant in the comprehensive development agreement and related
property;
[(3)] providing for the payment of an obligation
incurred under the comprehensive development agreement, including
an obligation to pay the purchase price for the interest of a
private participant in the comprehensive development agreement,
from any available source, including securing the obligation by a
pledge of revenues of the authority derived from the applicable
project, which pledge shall have priority as established by the
authority;
(2) [(4)] permitting the private participant to
pledge its rights under the comprehensive development agreement;
(3) [(5)] concerning the private participant's right
to operate and collect revenue from the turnpike project; and
(4) [(6)] restricting the right of the authority to
terminate the private participant's right to operate and collect
revenue from the turnpike project unless and until any applicable
termination payments have been made.
(g) A [Except as provided by this subsection, a]
comprehensive development agreement with a private participant
that includes the collection by the private participant of tolls
for the use of a toll project may be for a term not longer than 50
years from the later of the date of final acceptance of the project
or the start of revenue operations by the private participant, not
to exceed a total term of 52 years. [The contract must contain an
explicit mechanism for setting the price for the purchase by the
department of the interest of the private participant in the
contract and related property, including any interest in a highway
or other facility designed, developed, financed, constructed,
operated, or maintained under the contract.]
SECTION 8. Subsection (c), Section 370.169, Transportation
Code, is amended to read as follows:
(c) An authority has full easements and rights-of-way
through, across, under, and over any property owned by the state or
any local government that are necessary or convenient to construct,
acquire, or efficiently operate a transportation project or system
under this chapter. This subsection does not affect the obligation
of the authority under other law, including Section 373.102, to
compensate or reimburse this state for the use or acquisition of an
easement or right-of-way on property owned by or on behalf of this
state. An authority's use of property owned by or on behalf of this
state is subject to any covenants, conditions, restrictions, or
limitations affecting that property.
SECTION 9. Subsection (b), Section 370.311, Transportation
Code, is amended to read as follows:
(b) A comprehensive development agreement entered into
under Section 370.305 must include a provision authorizing the
authority to purchase, under terms agreed to by the parties, the
interest of a private equity investor in a transportation project
as required by Section 371.101.
SECTION 10. Section 371.002, Transportation Code, as added
by Chapter 264 (S.B. 792), Acts of the 80th Legislature, Regular
Session, 2007, is amended to read as follows:
Sec. 371.002. APPLICABILITY. This chapter does not apply
to:
(1) a project for which the commission selected an
apparent best value proposer before May 1, 2007; or
(2) a publicly owned and operated toll project, as
defined by Section 373.001.
SECTION 11. The heading to Section 371.052, Transportation
Code, as added by Chapter 264 (S.B. 792), Acts of the 80th
Legislature, Regular Session, 2007, is amended to read as follows:
Sec. 371.052. NOTIFICATION TO LEGISLATIVE BUDGET BOARD [AND
STATE AUDITOR].
SECTION 12. Section 371.101, Transportation Code, as added
by Chapter 264 (S.B. 792), Acts of the 80th Legislature, Regular
Session, 2007, is amended to read as follows:
Sec. 371.101. TERMINATION BY PURCHASE [FOR CONVENIENCE].
(a) A comprehensive development agreement must contain a
provision authorizing the toll project entity to purchase, under
terms agreed to by the parties:
(1) the interest of a private participant in the toll
project that is the subject of the 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) The provision must include a schedule stating a specific
price for the purchase of the toll project at certain intervals from
the date the project opens, not less than one year and not to exceed
five years, over the term of the agreement.
(c) The provision must authorize the toll project entity to
purchase the private entity's interest at a stated interval in an
amount not to exceed the lesser of:
(1) the price stated for that interval; or
(2) the greater of:
(A) the then fair market value of the private
entity's interest; or
(B) an amount equal to the amount of outstanding
debt at that time, as specified in the comprehensive development
agreement.
(d) A toll project entity may not, under any circumstance,
purchase the private entity's interest for an amount higher than
the stated interval amount.
(e) A contract to purchase the private entity's interest at
the then fair market value as described by Subsection (c)(2)(A)
must contain a provision, mutually agreed on by the toll project
entity and the private participant, detailing the calculation used
to determine that value.
(f) The toll project entity shall request a proposed
termination-by-purchase schedule in each request for detailed
proposals and shall consider and score each schedule in each
evaluation of proposals.
(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 13. Section 371.102, Transportation Code, as added
by Chapter 264 (S.B. 792), Acts of the 80th Legislature, Regular
Session, 2007, is amended to read as follows:
Sec. 371.102. TERMINATION OF CERTAIN COMPREHENSIVE
DEVELOPMENT AGREEMENTS. (a) If a toll project entity elects to
terminate a comprehensive development agreement under which a
private participant receives the right to operate and collect
revenue from a project, the entity may:
(1) [if authorized to issue bonds for that purpose,]
issue bonds or other obligations to:
(A) make any applicable termination payments to
the private participant; or
(B) purchase the interest of the private
participant in the comprehensive development agreement or related
property; or
(2) provide for the payment of obligations of the
private participant incurred pursuant to the comprehensive
development agreement.
(b) A toll project entity has the same powers and duties
relating to the financing of payments under Subsection (a)(1) as
the toll project entity has under other applicable laws of this
state, including Chapters 228, 284, 366, and 370 of this code and
Chapter 1371, Government Code, relating to the financing of a toll
project of that entity, including the ability to deposit the
proceeds of bonds or other obligations and to pledge, encumber, and
expend the proceeds and revenues of a toll project as provided by
law.
(c) The powers held by the toll project entity include the
power to authorize the issuance of bonds or other obligations and to
pay all or part of the costs of a payment described in Subsection
(a)(1), in the amount determined by the toll project entity under
Section 371.101. Costs associated with a payment under Subsection
(a)(1) are considered a cost of the project.
(d) This section shall be liberally construed to effect its
purposes.
SECTION 14. Subsections (b) and (c), Section 371.103,
Transportation Code, as added by Chapter 264 (S.B. 792), Acts of the
80th Legislature, Regular Session, 2007, are amended to read as
follows:
(b) Except as provided by Subsection (c), a comprehensive
development agreement may contain a provision authorizing the toll
project entity to compensate the private participant in the
agreement for the loss of toll revenues attributable to the
construction by the entity of a limited access highway project
located within an area that extends up to four miles from either
side of the centerline of the project developed under the
agreement, less the private participant's decreased operating and
maintenance costs attributable to the highway project, if any. A
provision under this subsection may be effective only for a period
of 30 years or less from the effective date of the agreement.
(c) A comprehensive development agreement may not require
the toll project entity to provide compensation for the
construction of:
(1) a highway project contained in the state
transportation plan or a transportation plan of a metropolitan
planning organization in effect on the effective date of the
agreement;
(2) work on or improvements to a highway project
necessary for improved safety, or for maintenance or operational
purposes;
(3) a high occupancy vehicle exclusive lane addition
or other work on any highway project that is required by an
environmental regulatory agency; [or]
(4) a transportation project that provides a mode of
transportation that is not included in the project that is the
subject of the comprehensive development agreement; or
(5) a highway designated an interstate highway.
SECTION 15. Subtitle G, Title 6, Transportation Code, is
amended by adding Chapter 373 to read as follows:
CHAPTER 373. TOLL PROJECTS LOCATED IN TERRITORY OF LOCAL TOLL
PROJECT ENTITY
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 373.001. DEFINITIONS. In this chapter:
(1) "Local toll project entity" means an entity, other
than the department, that is authorized by law to acquire, design,
construct, finance, operate, and maintain a toll project,
including:
(A) a regional tollway authority under Chapter
366;
(B) a regional mobility authority under Chapter
370; or
(C) a county acting under Chapter 284.
(2) "Privately operated or controlled toll project"
means a toll project that is primarily commercial in nature and is
designed and constructed by a private entity that holds a leasehold
interest in or the right to operate and retain revenues from the
toll project, regardless of whether the private entity operates the
toll project or collects the revenue itself or engages a
subcontractor or other entity to operate the toll project or
collect the revenue. The term does not include a toll project for
which the department or a toll project entity contracts with a
private entity only for engineering, design, construction,
finance, operation, maintenance, or other services.
(3) "Publicly owned and operated toll project" means a
toll project owned and operated by the department or a local toll
project entity in which a private entity does not have a leasehold
interest or right to operate or retain revenue from the toll
project. The term does not include a privately operated or
controlled toll project, but may include a toll project for which a
private entity provides:
(A) engineering, design, construction, finance,
operation, maintenance, or other services; or
(B) financial assistance for the toll project
that does not entitle the private entity to any ownership interest
in or the right to operate or retain revenue from the toll project.
(4) "Toll project" means a toll project described by
Section 201.001(b), regardless of whether the toll project is:
(A) a part of the state highway system; or
(B) subject to the jurisdiction of the
department.
Sec. 373.002. APPLICABILITY. (a) This chapter does not
apply to a toll project described in Section 228.011.
(b) Except for Sections 373.003, 373.004, and 373.005, this
chapter does not apply to:
(1) the State Highway 161 project from State Highway
183 to IH 20 in Dallas County;
(2) the U.S. 281 project in Bexar County from Loop 1604
to the Comal County line;
(3) the Loop 49 project from IH 20 to State Highway 110
in Smith County;
(4) the DFW Connector project in Tarrant and Dallas
Counties (State Highway 114 from State Highway 114L Business to
east of International Parkway and State Highway 121 from north of FM
2499 to south of State Highway 360);
(5) the North Tarrant Express project in Tarrant and
Dallas Counties (IH 820 and State Highway 121/State Highway 183
from IH 35W to State Highway 161, IH 820 east from State Highway
121/State Highway 183 to Randol Mill Road, and IH 35W from IH 30 to
State Highway 170);
(6) the U.S. 290 project from east of U.S. 183 to east
of FM 973 in Travis County;
(7) the State Highway 99 (Grand Parkway) project;
(8) the IH 635 managed lanes project in Dallas County
(IH 635 from east of Luna Road to Greenville Avenue and IH 35E from
south of the Loop 12/IH 35E split to south of Valwood Parkway);
(9) Phase 4 extension of the Dallas North Tollway in
Collin and Denton Counties from U.S. 380 to the Grayson County line
to be developed by North Texas Tollway Authority;
(10) the Southwest Parkway (State Highway 121) in
Tarrant County from Dirks Road/Altamesa Boulevard to IH 30; or
(11) the Loop 9 project in Dallas County.
Sec. 373.003. PROJECT OWNED IN PERPETUITY. Unless a toll
project is sold or otherwise transferred to another toll project
entity in accordance with applicable law, including Sections
228.151, 284.011, 366.036, 366.172, and 370.171, a toll project
procured by the department or a local toll project entity
determined by the process under Subchapter B is owned by that entity
in perpetuity.
Sec. 373.004. GOVERNMENTAL AND NOT COMMERCIAL
TRANSACTIONS. A transaction involving a local toll project entity
under Section 228.011 or this chapter is not primarily commercial
in nature but is an inherently governmental transaction whose
purpose is to determine governmental jurisdiction, ownership,
control, or other responsibilities with respect to a project.
Sec. 373.005. VALUATION DETERMINATION. Any determination
of value, including best value, under this chapter or other
applicable federal or state law for a comprehensive development
agreement or other public-private partnership arrangement
involving a toll project for which a local toll project entity has
exercised its option under this chapter and has complied with all
other conditions in this chapter for the development of the project
by the local toll project entity must take into consideration
factors the entity determines appropriate, including factors
related to:
(1) oversight of the toll project;
(2) maintenance and operations costs of the toll
project;
(3) the structure and rates of tolls;
(4) economic development impacts of the toll project;
and
(5) social and environmental benefits and impacts of
the toll project.
Sec. 373.006. LEGAL CHALLENGES CONCLUDED. For the purposes
of this chapter, all legal challenges to development of a toll
project are considered concluded when a judgment or order of a court
with jurisdiction over the challenge becomes final and
unappealable.
[Sections 373.007-373.050 reserved for expansion]
SUBCHAPTER B. PROCESS TO DETERMINE ENTITY TO DEVELOP, FINANCE,
CONSTRUCT, AND OPERATE TOLL PROJECT
Sec. 373.051. INITIATION OF PROCESS. (a) At any time
after a metropolitan planning organization approves the inclusion
of a toll project to be located in the territory of a local toll
project entity in the metropolitan transportation plan, the local
toll project entity may notify the department in writing of the
local toll project entity's intent to initiate the process
described in this subchapter.
(b) The department may notify the local toll project entity
in writing of the department's intent to initiate the process
described in this subchapter at any time after a metropolitan
planning organization has approved the inclusion of a toll project
to be located in the territory of a local toll project entity in the
metropolitan transportation plan and:
(1) the department has issued a finding of no
significant impact for the project, or for a project for which an
environmental impact statement is prepared, the department has
approved the final environmental impact statement for the project;
or
(2) for a project subject to environmental review
requirements under federal law, the United States Department of
Transportation Federal Highway Administration has issued a finding
of no significant impact, or for a project for which an
environmental impact statement is prepared, the department has
submitted a final environmental impact statement to the Federal
Highway Administration for approval.
Sec. 373.052. PUBLIC PROJECT BY LOCAL TOLL PROJECT ENTITY.
(a) A local toll project entity has the first option to develop,
finance, construct, and operate a toll project as a publicly owned
and operated toll project. A local toll project entity has not more
than 180 days after the date on which notification under Section
373.051(a) is provided or notification under Section 373.051(b) is
received to decide whether to exercise the option, unless the
United States Department of Transportation Federal Highway
Administration issues a record of decision for an environmental
impact statement submitted by the department under Section
373.051(b)(2) more than 60 days after the date the department
provides notice under Section 373.051(b), in which event the local
toll project entity has 120 days after the date the record of
decision is issued to exercise the option. The option period under
this subsection may be extended an additional 90 days by agreement
of the department and the local toll project entity.
(b) If a local toll project entity exercises the option
under Subsection (a), the local toll project entity after
exercising the option must:
(1) within 180 days after the later of the date of
exercising its option or the date on which all environmental
approvals necessary for the development of the toll project are
secured and all legal challenges to development are concluded,
advertise for the initial procurement of required services,
including, at a minimum, design services, for the project; and
(2) within two years after the date on which all
environmental approvals necessary for the development are secured
and all legal challenges to development are concluded, enter into a
contract for the construction of the toll project.
Sec. 373.053. PUBLIC PROJECT BY DEPARTMENT. (a) If a
local toll project entity fails or declines to exercise the option
to develop, finance, construct, and operate a toll project under
Section 373.052(a), or fails or declines to advertise for
procurement or enter into a construction contract as required by
Section 373.052(b), the department has the option to develop,
finance, construct, and operate the toll project as a publicly
owned and operated project. The department has not more than 60
days after the date the local toll project entity fails or declines
to exercise its option under Section 373.052(a) or fails or
declines to advertise for procurement or enter into a construction
contract as required by Section 373.052(b) to decide whether to
exercise its option.
(b) If the department exercises its option under Subsection
(a), the department after exercising the option must:
(1) within 180 days after the later of the date of
exercising its option or the date on which all environmental
approvals necessary for the development of the toll project are
secured and all legal challenges to development are concluded,
advertise for the initial procurement of required services,
including, at a minimum, design services, for the project; and
(2) within two years after the date on which all
environmental approvals necessary for the development are secured
and all legal challenges to development are concluded, enter into a
contract for the construction of the toll project.
Sec. 373.054. PRIVATE PROJECT BY LOCAL TOLL PROJECT ENTITY.
(a) If the department fails or declines to exercise the option to
develop, finance, construct, and operate a toll project under
Section 373.053(a), or fails or declines to advertise for
procurement or enter into a construction contract as required by
Section 373.053(b), the local toll project entity has the option to
develop, finance, construct, and operate the toll project as a
privately operated or controlled toll project. Except as provided
by Section 373.057(b), the local toll project entity has not more
than 60 days after the date the department fails or declines to
exercise its option under Section 373.053(a) or fails or declines
to advertise for procurement or enter into a construction contract
as required by Section 373.053(b) to decide whether to exercise its
option.
(b) If the local toll project entity exercises its option
under Subsection (a), the local toll project entity after
exercising the option must:
(1) within 180 days after the later of the date of
exercising its option or the date on which all environmental
approvals necessary for the development of the toll project are
secured and all legal challenges to development are concluded,
advertise for the initial procurement of required services,
including, at a minimum, design services, for the project; and
(2) within two years after the date on which all
environmental approvals necessary for the development are secured
and all legal challenges to development are concluded, enter into a
contract for the construction of the toll project.
Sec. 373.055. PRIVATE PROJECT BY DEPARTMENT. (a) If a
local toll project entity fails or declines to exercise the option
to develop, finance, construct, and operate a toll project under
Section 373.054(a), or fails or declines to advertise for
procurement or enter into a construction contract as required by
Section 373.054(b), the department has the option to develop,
finance, construct, and operate the toll project as a privately
operated or controlled toll project. The department has not more
than 60 days after the date the local toll project entity fails or
declines to exercise its option under Section 373.054(a) or fails
or declines to advertise for procurement or enter into a
construction contract as required by Section 373.054(b) to decide
whether to exercise its option.
(b) If the department exercises its option under Subsection
(a), the department after exercising the option must:
(1) within 180 days after the later of the date of
exercising its option or the date on which all environmental
approvals necessary for the development of the toll project are
secured and all legal challenges to development are concluded,
advertise for the initial procurement of required services,
including, at a minimum, design services, for the project; and
(2) within two years after the date on which all
environmental approvals necessary for the development are secured
and all legal challenges to development are concluded, enter into a
contract for the construction of the toll project.
Sec. 373.056. RE-INITIATION OF PROCESS. If the process
described by Sections 373.051, 373.052, 373.053, 373.054, and
373.055 concludes without the local toll project entity or the
department entering into a contract for the construction of the
toll project, either entity may re-initiate the process under this
subchapter by submitting notice to the other entity in the manner
provided by Section 373.051.
Sec. 373.057. WAIVER OF OPTION; ALTERATION OF TIMELINES.
(a) The department or local toll project entity may at any time
during the process established by this subchapter, including when
the process is initiated under Section 373.051, decline to exercise
an option of that entity under this subchapter.
(b) If the department declines to exercise its option under
Section 373.053 before the 120th day after the date on which
notification under Section 373.051(a) is provided to the local toll
project entity or notification under Section 373.051(b) is received
by the toll project entity, the local toll project entity must, in
addition to deciding whether to exercise its option under Section
373.052, decide whether to exercise its option under Section
373.054 not later than the later of:
(1) the 180th day after the date notice is provided or
received; or
(2) the end of the option period as extended under
Section 373.052.
(c) The department and the applicable local toll project
entity may, by written agreement, extend any time limit under this
subchapter.
Sec. 373.058. SHARING OF PROJECT-RELATED INFORMATION.
(a) If a local toll project entity or the department fails or
declines to exercise an option or fails or declines to advertise for
procurement or enter into a construction contract under Section
373.052, 373.053, 373.054, or 373.055, the local toll project
entity or the department, as applicable, must make available its
traffic estimates, revenue estimates, plans, specifications,
surveys, appraisals, and other work product developed for the toll
project to the other entity.
(b) On entering into a contract for the construction of the
toll project, the department or the local toll project entity, as
applicable, shall reimburse the other entity for shared project
work product that it uses.
Sec. 373.059. QUARTERLY PROGRESS REPORTS. After the
department or a local toll project entity exercises an option under
this subchapter, the department or local toll project entity, as
applicable, shall issue a quarterly report on the progress of the
development of the toll project. The report shall be made available
to the public.
Sec. 373.060. ENVIRONMENTAL REVIEW. (a) The department
or the local toll project entity may begin any environmental review
process that may be required for a proposed toll project before
initiating the process under this subchapter.
(b) If a local toll project entity initiates the process for
development of a toll project under Section 373.051(a) and has not
begun the environmental review of the project, the local toll
project entity shall begin the environmental review within 180 days
of exercising the option.
Sec. 373.061. PROJECT LOCATED IN TERRITORY OF MORE THAN ONE
LOCAL TOLL PROJECT ENTITY. If a toll project is in the territory of
more than one local toll project entity, only the local toll project
entity that was first to be authorized by law to construct toll
projects in that territory may exercise the options and other
rights under this subchapter. A local toll project entity
exercising an option or other right under this section:
(1) may do so only with respect to the portion of the
project located in the territory of that local toll project entity;
and
(2) may do so on behalf of another toll project entity
in whose territory the project will be located.
[Sections 373.062-373.100 reserved for expansion]
SUBCHAPTER C. USE OF RIGHT-OF-WAY BY LOCAL TOLL PROJECT ENTITY
Sec. 373.101. USE OF STATE HIGHWAY RIGHT-OF-WAY.
(a) Consistent with federal law, the commission and the department
shall assist a local toll project entity in the development,
financing, construction, and operation of a toll project for which
the local toll project entity has exercised its option to develop,
finance, construct, and operate the project under Subchapter B by
allowing the local toll project entity to use state highway
right-of-way and to access the state highway system as necessary to
construct and operate the toll project.
(b) Notwithstanding any other law, the local toll project
entity and the commission may agree to remove the toll project from
the state highway system and transfer ownership to the local toll
project entity.
Sec. 373.102. REIMBURSEMENT FOR USE OF STATE HIGHWAY
RIGHT-OF-WAY. (a) The commission or the department may not
require a local toll project entity to pay for the use of state
highway right-of-way or access, except:
(1) to reimburse the department for actual costs
incurred by the department that are owed to a third party, including
the federal government, as a result of that use by the local toll
project entity; and
(2) as required under Subsection (b).
(b) A local toll project entity shall reimburse the
department for the department's actual costs to acquire the
right-of-way in the manner provided in the payment schedule agreed
to by the department and the local toll project entity. If the
department cannot determine that amount, the amount must be
determined based on the average historical right-of-way
acquisition values for comparable right-of-way located in
proximity to the project on the date of original acquisition of the
right-of-way.
(c) In lieu of reimbursement, the local toll project entity
may agree to pay to the department a portion of the revenues of the
project, in the amount and for the period of time agreed to by the
local toll project entity and the department.
(d) Money received by the department under this section
shall be deposited in the state highway fund and, except for
reimbursement for costs owed to a third party, used to fund
additional projects in the department district in which the toll
project is located.
(e) The commission or department may waive the requirement
of reimbursement under this section.
Sec. 373.103. AGREEMENT FOR USE OF RIGHT-OF-WAY. A local
toll project entity shall enter into an agreement with the
department for any project for which the entity has exercised its
option to develop, finance, construct, and operate the project
under Subchapter B and for which the entity intends to use state
highway right-of-way. The agreement must contain provisions
necessary to ensure that the local toll project entity's
construction, maintenance, and operation of the project complies
with the requirements of applicable state and federal law.
Sec. 373.104. LIABILITY FOR DAMAGES. (a) Notwithstanding
any other law, the commission and the department are not liable for
any damages that result from a local toll project entity's use of
state highway right-of-way or access to the state highway system
under this subchapter, regardless of the legal theory, statute, or
cause of action under which liability is asserted.
(b) An agreement entered into by a local toll project entity
and the department in connection with a toll project that is
financed, constructed, or operated by the local toll project entity
and that is on or directly connected to a highway in the state
highway system does not create a joint enterprise for liability
purposes.
Sec. 373.105. COMPLIANCE WITH FEDERAL LAW. Notwithstanding
an action taken by a local toll project entity under this
subchapter, the commission or department may take any action that
in its reasonable judgment is necessary to comply with any federal
requirement to enable this state to receive federal-aid highway
funds.
SECTION 16. Section 228.012, Transportation Code, as
amended by this Act, applies only to payments received by the Texas
Department of Transportation under that section on or after the
effective date of this Act. Payments received by the department
under Section 228.012, Transportation Code, before the effective
date of this Act are governed by the law in effect immediately
before the effective date of this Act, and that law is continued in
effect for that purpose.
SECTION 17. The changes in law made by this Act to Sections
371.101 and 371.103, Transportation Code, do not apply to a project
described in Subdivision (1), (4), (5), (7), (8), or (11),
Subsection (b), Section 373.002, Transportation Code, as added by
this Act. A project described in those subdivisions is governed by
Sections 371.101 and 371.103, Transportation Code, as those
sections existed immediately before the effective date of this Act,
and those laws are continued in effect for that purpose.
SECTION 18. (a) Section 371.101, Transportation Code, as
amended by this Act, does not apply to a comprehensive development
agreement for:
(1) a project located south of Refugio County on the
ISTEA High Priority Corridor identified in Sections 1105(c)(18) and
(20) of the Intermodal Surface Transportation Efficiency Act of
1991 (Pub. L. No. 102-240), as amended by Section 1211 of the
Transportation Equity Act for the 21st Century (Pub. L. No.
105-178, as amended by Title IX, Pub. L. No. 105-206), if the
project is part of the highway corridor designated by those laws;
(2) the following projects to be developed in
connection with the projects described under Subdivision (1):
(A) the Corpus Christi Southside Mobility
Corridor;
(B) the State Highway 358 managed lanes project
and the State Highway 286 managed lanes project in Nueces County;
and
(C) the State Highway 550 spur project and the
West Loop project in Cameron County; or
(3) a project on the IH 69 corridor in Bowie County.
(b) A project described by this section is governed by
Section 371.101, Transportation Code, as it existed immediately
before the effective date of this Act, and the former law is
continued in effect for that purpose.
SECTION 19. The change in law made by this Act to Section
223.208, Transportation Code, does not apply to a project described
in Subdivision (1), (4), (5), (7), (8), or (11), Subsection (b),
Section 373.002, Transportation Code, as added by this Act. A
project described in those subdivisions is governed by Section
223.208, Transportation Code, as it existed immediately before the
effective date of this Act, and that law is continued in effect for
that purpose.
SECTION 20. (a) The repeal of Section 228.0111,
Transportation Code, by this Act does not affect any project
described in Subsection (b), Section 373.002, Transportation Code,
as added by this Act. A project described in that subsection is
governed by Section 228.0111, Transportation Code, as it existed
immediately before the effective date of this Act, and that law is
continued in effect for that purpose.
(b) For the purposes of the application of Subdivision (1),
Subsection (g), Section 228.0111, Transportation Code, or
Subdivision (1), Subsection (i), Section 228.0111, Transportation
Code, under Subsection (a) of this section to the State Highway 99
(Grand Parkway) project, the local toll project entity or the
department, as applicable, must enter into a contract for the
construction of at least one segment of the project in the two-year
period described by Subdivision (1), Subsection (g), Section
228.0111, Transportation Code, or Subdivision (1), Subsection (i),
Section 228.0111, Transportation Code. For each of the remaining
segments, if the department and a local toll project entity have
entered into an agreement for the advance funding of the initial
segment, a local toll project entity or the department, as
applicable, is not required to enter into a construction contract
for any remaining segment before the second anniversary of the date
a construction contract for a segment contiguous to that remaining
segment has been entered into.
SECTION 21. The following sections are repealed:
(1) Section 228.0111, Transportation Code; and
(2) Subsection (c), Section 371.052, Transportation
Code, as added by Chapter 264 (S.B. 792), Acts of the 80th
Legislature, Regular Session, 2007.
SECTION 22. 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, 2009.