82R9198 JTS-D
By: Shapiro, Harris S.B. No. 1145
A BILL TO BE ENTITLED
AN ACT
relating to comprehensive development agreements.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter E, Chapter 223, Transportation Code,
is amended by adding Section 223.2011 to read as follows:
Sec. 223.2011. LIMITED AUTHORITY FOR CERTAIN PROJECTS USING
COMPREHENSIVE DEVELOPMENT AGREEMENTS. (a) Notwithstanding
Sections 223.201(f) and (i), the department may enter into a
comprehensive development agreement relating to managed lane
improvements to State Highway 183 between State Highway 161 and
Interstate Highway 35E.
(b) This section expires August 31, 2013.
SECTION 2. Section 371.101, Transportation Code, 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 3. Sections 371.103(b) and (c), Transportation
Code, 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 4. Sections 371.101 and 371.103, Transportation
Code, as amended by this Act, apply only to a comprehensive
development agreement entered into on or after the effective date
of this Act. A comprehensive development agreement entered into
before the effective date of this Act is governed by the law in
effect on the date the agreement was entered into, and the former
law is continued in effect for that purpose.
SECTION 5. 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, 2011.