This website will be unavailable from Friday, April 26, 2024 at 6:00 p.m. through Monday, April 29, 2024 at 7:00 a.m. due to data center maintenance.
Amend CSHB 300 by adding the new sections, appropriately
numbered to read as follows:
SUBCHAPTER E. COMPREHENSIVE DEVELOPMENT AGREEMENTS
Sec. [223.201]371.301. AUTHORITY. (a) Subject to Section
[223.202]371.302, [the department] a toll project entity may enter
into a comprehensive development agreement with a private entity to
design, develop, finance, construct, maintain, repair, operate,
extend, or expand a:
(1) toll project;
(2) facility or a combination of facilities on the
Trans-Texas Corridor;
(3) state highway improvement project that includes
both tolled and nontolled lanes and may include nontolled
appurtenant facilities;
(4) state highway improvement project in which the
private entity has an interest in the project; or
(5) state highway improvement project financed wholly
or partly with the proceeds of private activity bonds, as defined by
Section 141(a), Internal Revenue Code of 1986.
(b) In this subchapter, "comprehensive development
agreement" means an agreement that, at a minimum, provides for the
design and construction, rehabilitation, expansion, or improvement
of a project described in Subsection (a) and may also provide for
the financing, acquisition, maintenance, or operation of a project
described in Subsection (a).
(c) [The department] A toll project entity may negotiate
provisions relating to professional and consulting services
provided in connection with a comprehensive development agreement.
(d) Money disbursed by the department under a comprehensive
development agreement is not included in the amount:
(1) required to be spent in a state fiscal biennium for
engineering and design contracts under Section 223.041; or
(2) appropriated in Strategy A.1.1.
Plan/Design/Manage of the General Appropriations Act for that
biennium for the purpose of making the computation under Section
223.041.
(e) [The department] A toll project entity may authorize the
investment of public and private money, including debt and equity
participation, to finance a function described by this section.
(f) [Except as provided by Subsections (h) and (i), the] The
authority to enter into comprehensive development agreements
provided by this section expires on August 31, [2009]2015.
(g) The department may combine in a comprehensive
development agreement under this subchapter a toll project and a
rail facility as defined by Section 91.001.
[(h) Subsection (f) does not apply to a comprehensive
development agreement that does not grant a private entity a right
to finance a toll project or to a comprehensive development
agreement in connection with a project:
(1) that includes one or more managed lane facilities
to be added to an existing controlled-access highway;
(2) the major portion of which is located in a
nonattainment or near-nonattainment air quality area as designated
by the United States Environmental Protection Agency; and
(3) for which the department has issued a request for
qualifications before May 1, 2007.
(i) The authority to enter into a comprehensive development
agreement for a project exempted from Subsection (f) or Section
223.210(b) expires August 31, 2011.]
Sec. [223.202] 371.302. LIMITATION ON DEPARTMENT FINANCIAL
PARTICIPATION. The amount of money disbursed by the department
from the state highway fund and the Texas mobility fund during a
federal fiscal year to pay the costs under comprehensive
development agreements may not exceed 40 percent of the obligation
authority under the federal-aid highway program that is distributed
to this state for that fiscal year.
Sec. [223.203] 371.303. PROCESS FOR ENTERING INTO
COMPREHENSIVE DEVELOPMENT AGREEMENTS. (a) If [the department] a
toll project entity enters into a comprehensive development
agreement, [the department] a toll project entity shall use a
competitive procurement process that provides the best value for
[the department. The department] a toll project entity. A toll
project entity may accept unsolicited proposals for a proposed
project or solicit proposals in accordance with this section.
(b) [The department] A toll project entity shall establish
rules and procedures for accepting unsolicited proposals that
require the private entity to include in the proposal:
(1) information regarding the proposed project
location, scope, and limits;
(2) information regarding the private entity's
qualifications, experience, technical competence, and capability
to develop the project; and
(3) any other information [the department] a toll
project entity considers relevant or necessary.
(c) [The department] A toll project entity shall publish a
notice advertising a request for competing proposals and
qualifications in the Texas Register that includes the criteria to
be used to evaluate the proposals, the relative weight given to the
criteria, and a deadline by which proposals must be received if:
(1) [the department] a toll project entity decides to
issue a request for qualifications for a proposed project; or
(2) [the department] a toll project entity authorizes
the further evaluation of an unsolicited proposal.
(d) A proposal submitted in response to a request published
under Subsection (c) must contain, at a minimum, the information
required by Subsections (b)(2) and (3).
(e) [The department] A toll project entity may interview a
private entity submitting an unsolicited proposal or responding to
a request under Subsection (c). [The department] A toll project
entity shall evaluate each proposal based on the criteria described
in the request for competing proposals and qualifications and may
qualify or shortlist private entities to submit detailed proposals
under Subsection (f). [The department] A toll project entity must
qualify or shortlist at least two private entities to submit
detailed proposals for a project under Subsection (f) unless [the
department] a toll project entity does not receive more than one
proposal or one response to a request under Subsection (c).
(e-1) Notwithstanding the requirements of this section,
[the department] a toll project entity may prequalify a private
entity to submit a detailed proposal to provide services under a
design-build contract. [The department] A toll project entity is
not required to publish a request under Subsection (c) for a
design-build contract, and may enter into a design-build contract
based solely on an evaluation of detailed proposals submitted in
response to a request under Subsection (f) by prequalified private
entities. The [commission]governing body of a toll project entity
shall adopt rules establishing criteria for the prequalification of
a private entity that include the precertification requirements
applicable to providers of engineering services and the
qualification requirements for bidders on highway construction
contracts. Rules for design-build projects adopted pursuant to
this subsection shall also provide for an expedited selection
process that includes design innovation as a selection criterion.
(e-2) In this section, "design-build contract" means a
comprehensive development agreement that includes the design and
construction of a turnpike project, does not include the financing
of a turnpike project, and may include the acquisition,
maintenance, or operation of a turnpike project.
(f) [The department] A toll project entity shall issue a
request for detailed proposals from all private entities qualified
or shortlisted under Subsection (e) or prequalified under
Subsection (e-1) if [the department] a toll project entity proceeds
with the further evaluation of a proposed project. A request under
this subsection may require additional information relating to:
(1) the private entity's qualifications and
demonstrated technical competence;
(2) the feasibility of developing the project as
proposed;
(3) engineering or architectural designs;
(4) the private entity's ability to meet schedules;
(5) a financial plan, including costing methodology
and cost proposals; or
(6) any other information the department considers
relevant or necessary.
(f-1) A private entity responding to a request for detailed
proposals issued under Subsection (f) may submit alternative
proposals based on comprehensive development agreements having
different terms, with the alternative terms in multiples of 10
years, ranging from 10 years from the later of the date of final
acceptance of the project or the start of revenue operations by the
private entity to 50 years from the later of the date of final
acceptance of the project or the start of revenue operations by the
private entity, not to exceed a total term of 52 years or any lesser
term provided in a comprehensive development agreement.
(g) In issuing a request for proposals under Subsection (f),
[the department] a toll project entity may solicit input from
entities qualified under Subsection (e) or any other person. [The
department] A toll project entity may also solicit input regarding
alternative technical concepts after issuing a request under
Subsection (f).
(h) [The department] A toll project entity shall evaluate
each proposal based on the criteria described in the request for
detailed proposals and select the private entity whose proposal
offers the apparent best value to [the department] a toll project
entity.
(i) [The department] A toll project entity may enter into
negotiations with the private entity whose proposal offers the
apparent best value.
(j) If at any point in negotiations under Subsection (i) it
appears to [the department] a toll project entity that the highest
ranking proposal will not provide [the department] a toll project
entity with the overall best value, [the department] a toll project
entity may enter into negotiations with the private entity
submitting the next highest ranking proposal.
(k) [The department] A toll project entity may withdraw a
request for competing proposals and qualifications or a request for
detailed proposals at any time. [The department] A toll project
entity may then publish a new request for competing proposals and
qualifications.
(l) [The department] A toll project entity may require that
an unsolicited proposal be accompanied by a nonrefundable fee
sufficient to cover all or part of its cost to review the proposal.
(m) [The department] A toll project entity may pay an
unsuccessful private entity that submits a responsive proposal in
response to a request for detailed proposals under Subsection (f) a
stipulated amount in exchange for the work product contained in
that proposal. A stipulated amount must be stated in the request
for proposals and may not exceed the value of any work product
contained in the proposal that can, as determined by [the
department] a toll project entity, be used by [the department] a
toll project entity in the performance of its functions. The use
by [the department] a toll project entity of any design element
contained in an unsuccessful proposal is at the sole risk and
discretion of [the department] a toll project entity and does not
confer liability on the recipient of the stipulated amount under
this section. After payment of the stipulated amount:
(1) [the department] a toll project entity owns with
the unsuccessful proposer jointly the rights to, and may make use of
any work product contained in, the proposal, including the
technologies, techniques, methods, processes, ideas, and
information contained in the project design; and
(2) the use by the unsuccessful proposer of any
portion of the work product contained in the proposal is at the sole
risk of the unsuccessful proposer and does not confer liability on
the department.
(n) [The department] A toll project entity may prescribe the
general form of a comprehensive development agreement and may
include any matter the department considers advantageous to the
department. [The department] A toll project entity and the private
entity shall finalize the specific terms of a comprehensive
development agreement.
(o) Subchapter A of this chapter and Chapter 2254,
Government Code, do not apply to a comprehensive development
agreement entered into under this subchapter.
Sec. [223.204] 371.304. CONFIDENTIALITY OF
INFORMATION. (a) To encourage private entities to submit
proposals under this subchapter, the following information is
confidential, is not subject to disclosure, inspection, or copying
under Chapter 552, Government Code, and is not subject to
disclosure, discovery, subpoena, or other means of legal compulsion
for its release until a final contract for a proposed project is
entered into:
(1) all or part of a proposal that is submitted by a
private entity for a comprehensive development agreement, except
information provided under Sections 223.203(b)(1) and (2), unless
the private entity consents to the disclosure of the information;
(2) supplemental information or material submitted by
a private entity in connection with a proposal for a comprehensive
development agreement, unless the private entity consents to the
disclosure of the information or material; and
(3) information created or collected by the department
or its agent during consideration of a proposal for a comprehensive
development agreement.
(b) After [the department] a toll project entity completes
its final ranking of proposals under Section [223.203] 371.303(h),
the final rankings of each proposal under each of the published
criteria are not confidential.
Sec. [223.205] 371.305. PERFORMANCE AND PAYMENT
SECURITY. (a) Notwithstanding Section 223.006 and the
requirements of Subchapter B, Chapter 2253, Government Code, [the
department] a toll project entity shall require a private entity
entering into a comprehensive development agreement under this
subchapter to provide a performance and payment bond or an
alternative form of security in an amount sufficient to:
(1) ensure the proper performance of the agreement;
and
(2) protect:
(A) [the department] a toll project entity; and
(B) payment bond beneficiaries who have a direct
contractual relationship with the private entity or a subcontractor
of the private entity to supply labor or material.
(b) A performance and payment bond or alternative form of
security shall be in an amount equal to the cost of constructing or
maintaining the project.
(c) If [the department] a toll project entity determines
that it is impracticable for a private entity to provide security in
the amount described by Subsection (b), [the department] a toll
project entity shall set the amount of the bonds or the alternative
forms of security.
(d) A payment or performance bond or alternative form of
security is not required for the portion of an agreement that
includes only design or planning services, the performance of
preliminary studies, or the acquisition of real property.
(e) The amount of the payment security must not be less than
the amount of the performance security.
(f) In addition to or instead of a performance and payment
bond, the department may require one or more of the following
alternative forms of security:
(1) a cashier's check drawn on a financial entity
specified by [the department] a toll project entity;
(2) a United States bond or note;
(3) an irrevocable bank letter of credit; or
(4) any other form of security determined suitable by
[the department] a toll project entity.
(g) [The department] A toll project entity by rule shall
prescribe requirements for an alternative form of security provided
under this section.
Sec. [223.206] 371.306. OWNERSHIP OF HIGHWAY. (a) A state
highway or another facility described by Section [223.201]
371.301(a) that is the subject of a comprehensive development
agreement with a private entity, including the facilities acquired
or constructed on the project, is public property and shall be owned
by [the department] a toll project entity.
(b) Notwithstanding Subsection (a), [the department] a toll
project entity may enter into an agreement that provides for the
lease of rights-of-way, the granting of easements, the issuance of
franchises, licenses, or permits, or any lawful uses to enable a
private entity to construct, operate, and maintain a project,
including supplemental facilities. At the termination of the
agreement, the highway or other facilities are to be in a state of
proper maintenance as determined by [the department] a toll project
entity and shall be returned to [the department] a toll project
entity in satisfactory condition at no further cost.
(c) A highway asset or toll project that is used or leased by
a private entity under Section 202.052 or 228.053 for a commercial
purpose is not exempt from ad valorem taxation and is subject to
local zoning regulations and building standards.
(d) [The department] A toll project entity may not enter
into a comprehensive development agreement with a private entity
under this subchapter or Section 227.023 that provides for the
lease, license, or other use of rights-of-way or related property
by the private entity for the purpose of constructing, operating,
or maintaining an ancillary facility that is used for commercial
purposes.
Sec. [223.207] 371.307. LIABILITY FOR PRIVATE
OBLIGATIONS. [The department] A toll project entity may not incur
a financial obligation for a private entity that designs, develops,
finances, constructs, maintains, or operates a state highway or
other facility under this subchapter. The state or a political
subdivision of the state is not liable for any financial or other
obligations of a project solely because a private entity
constructs, finances, or operates any part of the project.
Sec. [223.208] 371.308. TERMS OF PRIVATE
PARTICIPATION. (a) [The department] A toll project entity shall
negotiate the terms of private participation under this subchapter,
including:
(1) methods to determine the applicable cost, profit,
and project distribution among the private participants and the
department;
(2) reasonable methods to determine and classify toll
rates and responsibility for the setting of tolls;
(3) acceptable safety and policing standards; and
(4) other applicable professional, consulting,
construction, operation, and maintenance standards, expenses, and
costs.
(b) A comprehensive development agreement entered into
under this subchapter or Section 227.023(c) may include any
provision that [the department] a toll project entity considers
appropriate, including provisions:
(1) providing for the purchase by [the department] a
toll project entity, under terms and conditions agreed to by the
parties, of the interest of a 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 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] governing body of the toll
project entity or the department] a toll project entity derived
from the applicable project, which pledge shall have such priority
as [the department] a toll project entity may establish;
(4) permitting the private participant to pledge its
rights under the comprehensive development agreement;
(5) concerning the private participant's right to
operate and collect revenue from the project; and
(6) restricting the right of the [commission]
governing body of the toll project entity or [the department] a toll
project entity 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.
(c) The department may enter into a comprehensive
development agreement under this subchapter or under Section
227.023(c) with a private participant only if the project is
identified in the department's unified transportation program or is
located on a transportation corridor identified in the statewide
transportation plan.
(d) Section [223.207] 371.307 does not apply to the
obligations of the department under a comprehensive development
agreement.
(e) Notwithstanding anything in Section 201.112 or other
law to the contrary, and subject to compliance with the dispute
resolution procedures set out in the comprehensive development
agreement, an obligation of the [commission] governing body of the
toll project entity or [the department] a toll project entity under
a comprehensive development agreement entered into under this
subchapter or Section 227.023(c) to make or secure payments to a
person because of the termination of the agreement, including the
purchase of the interest of a private participant or other investor
in a project, may be enforced by mandamus against [the commission ,
the department] the governing body of a toll project entity, a toll
project entity, and the comptroller in a district court of Travis
County, and the sovereign immunity of the state is waived for that
purpose. The district courts of Travis County shall have exclusive
jurisdiction and venue over and to determine and adjudicate all
issues necessary to adjudicate any action brought under this
subsection. The remedy provided by this subsection is in addition
to any legal and equitable remedies that may be available to a party
to a comprehensive development agreement.
(f) A comprehensive development agreement entered into
under this subchapter or Section 227.023(c) and any obligations
incurred, issued, or owed under the agreement does not constitute a
state security under Chapter 1231, Government Code.
(g) If [the department] a toll project entity enters into 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, the private participant shall submit
to [the department] a toll project entity for approval:
(1) the methodology for:
(A) the setting of tolls; and
(B) increasing the amount of the tolls;
(2) a plan outlining methods the private participant
will use to collect the tolls, including:
(A) any charge to be imposed as a penalty for late
payment of a toll; and
(B) any charge to be imposed to recover the cost
of collecting a delinquent toll; and
(3) any proposed change in an approved methodology for
the setting of a toll or a plan for collecting the toll.
(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] a toll project entity 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.
Sec. [223.209] 371.309. RULES, PROCEDURES, AND GUIDELINES
GOVERNING SELECTION AND NEGOTIATING PROCESS. (a) The
[commission] governing body of a toll project entity shall adopt
rules, procedures, and guidelines governing selection of a
developer for a comprehensive development agreement and
negotiations to promote fairness, obtain private participants in
projects, and promote confidence among those participants. The
rules must contain criteria relating to the qualifications of the
participants and the award of the contracts.
(b) [The department] A toll project entity shall have
up-to-date procedures for participation in negotiations under this
subchapter.
(c) [The department] A toll project entity has exclusive
judgment to determine the terms of an agreement.
SECTION____. The following provisions of the Transportation
Code are repealed:
(1) Sections 366.401-366.408;
(2) Sections 370.305-370.312; and
(3) Sections 284.003(a)(7).
(2) Renumber SECTIONS of the bill appropriately.