CHAPTER 371. COMPREHENSIVE DEVELOPMENT AGREEMENTS FOR HIGHWAY TOLL PROJECTS

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Statutes > Texas > Transportation-code > Title-6-roadways > Chapter-371-comprehensive-development-agreements-for-highway-toll-projects

TRANSPORTATION CODE

TITLE 6. ROADWAYS

SUBTITLE G. TURNPIKES AND TOLL PROJECTS

CHAPTER 371. COMPREHENSIVE DEVELOPMENT AGREEMENTS FOR HIGHWAY

TOLL PROJECTS

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 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;

(D) a county under Chapter 284.

Added by Acts 2007, 80th Leg., R.S., Ch.

264, Sec. 11.01, eff. June 11, 2007.

Sec. 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

Sec. 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.

Sec. 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

participant in the agreement will realize during the planned term

of the 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

Sec. 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.

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.

Sec. 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.

Sec. 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.

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

Sec. 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

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.

Sec. 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.

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.

Sec. 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.

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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