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;
(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.
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
(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
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.
(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.
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.
(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
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
(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.
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.
(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.
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.
(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.