Law:Title 6. Roadways. Subtitle G. Turnpikes And Toll Projects from Chapter 371. Comprehensive Development Agreements For Highway Toll Projects (Texas)

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Subtitle G. Turnpikes And Toll Projects

Contents

Chapter 371. Comprehensive Development Agreements For Highway Toll Projects

Subchapter A. General Provisions

Section 371.001.  Definitions.

In this chapter:

(1)  "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.

(2)  "Toll project entity" means an entity authorized by law to acquire, design, construct, operate, and maintain a toll project, including:

(A)  the department, including under Chapter 227;

(B)  a regional tollway authority under Chapter 366;

(C)  a regional mobility authority under Chapter 370; or

(D)  a county under Chapter 284.

Added by Acts 2007, 80th Leg., R.S., Ch. 264, Sec. 11.01, eff. June 11, 2007.



Section 371.002.  Applicability.

This chapter does not apply to a project for which the commission selected an apparent best value proposer before May 1, 2007.

Added by Acts 2007, 80th Leg., R.S., Ch. 264, Sec. 11.01, eff. June 11, 2007.



Subchapter B. Oversight

Section 371.051.  Attorney General Review.

A toll project entity may not enter into a comprehensive development agreement unless the attorney general reviews the proposed agreement and determines that it is legally sufficient.

Added by Acts 2007, 80th Leg., R.S., Ch. 264, Sec. 11.01, eff. June 11, 2007.



Section 371.052.  Notification To Legislative Budget Board And State Auditor.

(a) Not later than the 10th day after the date of qualifying or shortlisting private entities to submit detailed proposals for a toll project, a toll project entity shall provide the Legislative Budget Board with the names of qualifying or shortlisted proposers and their team members.

(b)  At least 30 days before entering into a comprehensive development agreement, a toll project entity shall provide the Legislative Budget Board with:

(1)  a copy of the version of the proposed comprehensive development agreement to be executed;

(2)  a copy of the proposal submitted by the apparent best value proposer; and

(3)  a financial forecast prepared by the toll project entity that includes:

(A)  toll revenue the entity projects will be derived from the project during the planned term of the agreement;

(B)  estimated construction costs and operating expenses; and

(C)  the amount of income the entity projects the private participant in the agreement will realize during the planned term of the agreement.

(c)  Before entering into a comprehensive development agreement, a toll project entity shall provide the state auditor with the traffic and revenue report prepared by the toll project entity or its consultant for the project.  The entity may not enter into the comprehensive development agreement before the 30th day after the date that the state auditor receives the report so that the state auditor may review and comment on the report and the methodology used to develop the report.

(d)  Before the comprehensive development agreement is entered into, financial forecasts and traffic and revenue reports prepared by or for a toll project entity for the project are confidential and are not subject to disclosure, inspection, or copying under Chapter 552, Government Code.  On or after the date the comprehensive development agreement is entered into, the financial forecasts and traffic revenue reports are public information under Chapter 552, Government Code.

Added by Acts 2007, 80th Leg., R.S., Ch. 264, Sec. 11.01, eff. June 11, 2007.



Subchapter C. Contract Provisions

Section 371.101.  Termination For Convenience.

(a) 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).

Added by Acts 2007, 80th Leg., R.S., Ch. 264, Sec. 11.01, eff. June 11, 2007.



Section 371.102.  Termination Of Certain Comprehensive Development Agreements.

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 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.

Added by Acts 2007, 80th Leg., R.S., Ch. 264, Sec. 11.01, eff. June 11, 2007.



Section 371.103.  Prohibition Against Limiting Or Prohibiting Construction Of Transportation Projects.

(a) A comprehensive development agreement may not contain a provision that limits or prohibits the construction, reconstruction, expansion, rehabilitation, operation, or maintenance of a highway or other transportation project, as that term is defined by Section 370.003, by the toll project entity or other governmental entity, or by a private entity under a contract with the toll project entity or other governmental entity.

(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.

(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.

(d)  The private participant has the burden of proving any loss of toll revenue resulting from the construction of a highway project described by Subsection (b).

(e)  A comprehensive development agreement that contains a provision described by Subsection (b) must require the private participant to provide compensation to the toll project entity in the amount of any increase in toll revenues received by the private participant that is attributable to the construction of a highway project described by Subsection (b), less the private participant's increased operation and maintenance costs attributable to the highway project, if any.

Added by Acts 2007, 80th Leg., R.S., Ch. 264, Sec. 11.01, eff. June 11, 2007.



Subchapter D. Disclosure Of Information

Section 371.151.  Disclosure Of Financial Information.

(a) Before a toll project entity enters into a contract for the construction of a toll project, the entity shall publish in the manner provided by Section 371.152 information regarding:

(1)  project financing, including:

(A)  the total amount of debt that has been and will be assumed to acquire, design, construct, operate, and maintain the toll project;

(B)  a description of how the debt will be repaid, including a projected timeline for repaying the debt; and

(C)  the projected amount of interest that will be paid on the debt;

(2)  whether the toll project will continue to be tolled after the debt has been repaid;

(3)  a description of the method that will be used to set toll rates;

(4)  a description of any terms in the contract relating to competing facilities, including any penalties associated with the construction of a competing facility;

(5)  a description of any terms in the contract relating to a termination for convenience provision, including any information regarding how the value of the project will be calculated for the purposes of making termination payments;

(6)  the initial toll rates, the methodology for increasing toll rates, and the projected toll rates at the end of the term of the contract; and

(7)  the projected total amount of concession payments.

(b)  A toll project entity may not enter into a contract for the construction of a toll project before the 30th day after the date the information is first published under Section 371.152.

Added by Acts 2007, 80th Leg., R.S., Ch. 264, Sec. 11.01, eff. June 11, 2007.



Section 371.152.  Disclosure By Publication.

(a) Information under Section 371.151 must be published in a newspaper published in the county in which the toll project is to be constructed once a week for at least two weeks before the time set for entering into the contract and in two other newspapers that the toll project entity may designate.

(b)  Instead of the notice required by Subsection (a), if the toll project entity estimates that the contract involves an amount less than $300,000, the information may be published in two successive issues of a newspaper published in the county in which the project is to be constructed.

(c)  If a newspaper is not published in the county in which the toll project is to be constructed, notice shall be published in a newspaper published in the county:

(1)  nearest the county seat of the county in which the improvement is to be made; and

(2)  in which a newspaper is published.

Added by Acts 2007, 80th Leg., R.S., Ch. 264, Sec. 11.01, eff. June 11, 2007.



Section 371.153.  Hearing.

(a) A toll project entity shall hold a public hearing on the information published under Section 371.152 not later than the 10th day after the date the information is first published and not less than 10 days before the entity enters into the contract.

(b)  A hearing under this section must be held in the county seat of the county in which the toll project is located.

(c)  A hearing under this section must include a formal presentation and a mechanism for responding to comments and questions.

Added by Acts 2007, 80th Leg., R.S., Ch. 264, Sec. 11.01, eff. June 11, 2007.


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