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A BILL TO BE ENTITLED
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AN ACT
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relating to the development of toll projects through public-private |
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partnerships. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subtitle G, Title 6, Transportation Code, is |
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amended by adding Chapter 373 to read as follows: |
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CHAPTER 373. PUBLIC-PRIVATE PARTNERSHIPS FOR TOLL PROJECTS |
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SUBCHAPTER A. GENERAL PROVISIONS |
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Sec. 373.001. DEFINITIONS. In this chapter: |
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(1) "Public-private partnership" means a contractual |
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agreement between a toll project entity and a private entity that |
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provides for private sector participation in the design, |
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construction, financing, operation, and maintenance of a toll |
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project under this chapter. |
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(2) "Toll project" means one or more tolled lanes of a |
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highway or an entire toll highway and any improvement, extension, |
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or expansion to the highway, including: |
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(a) a facility to relieve traffic congestion and |
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promote safety; |
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(b) a bridge, tunnel, overpass, underpass, |
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interchange, entrance plaza, approach, toll booth, toll plaza, |
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service road, ramp, or service center; |
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(c) an administration, storage, or other building, |
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operations center, maintenance or other facility, equipment, or |
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system the toll project entity considers necessary to operate the |
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project; |
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(d) property rights, easements, and interests the toll |
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project entity acquires to construct, maintain, or operate the |
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project; |
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(e) a parking area or structure, rest stop, park, and |
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any other improvement or amenity the toll project entity considers |
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necessary, useful, or beneficial for the operation and maintenance |
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of the project; and |
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(f) a nontolled facility that is appurtenant to and |
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necessary for the efficient operation and maintenance of the |
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project, including a connector, service road, access road, ramp, |
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interchange, bridge, or tunnel. |
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(3) "Toll project entity" means an entity authorized by law |
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to acquire, design, construct, finance, operate, and maintain a |
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toll project, including: |
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(a) the department under Chapter 228; |
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(b) a regional tollway authority under Chapter 366; |
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(c) a regional mobility authority under Chapter 370; |
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or |
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(d) a county under Chapter 284. |
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(Sections 373.002-373.050 reserved for expansion) |
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SUBCHAPTER B. PUBLIC-PRIVATE PARTNERSHIPS |
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Sec. 373.051. PUBLIC-PRIVATE PARTNERSHIPS AUTHORIZED. (a) |
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A toll project entity may enter into a public-private partnership |
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that provides for the design, development, financing, |
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construction, maintenance, repair, operation, extension, or |
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expansion of a toll project. |
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(b) A regional tollway authority, a regional mobility |
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authority, or a county under Chapter 284 may not enter into a |
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public-private partnership pursuant to this chapter for a toll |
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project that extends beyond the boundaries of the toll project |
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entity and any counties adjacent to the toll project entity. |
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(c) The department may not enter into a public-private |
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partnership pursuant to this chapter for a toll project that |
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extends beyond the boundaries of a department district and any |
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counties adjacent to the district. |
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(d) A toll project entity may negotiate provisions relating |
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to professional and consulting services provided in connection with |
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a public-private partnership authorized by this section. |
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Sec. 373.052. PROCESS FOR ENTERING INTO PUBLIC-PRIVATE |
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PARTNERSHIPS. (a) If a toll project entity enters into a public- |
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private partnership, the toll project entity shall use a |
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competitive procurement process that provides the best value for |
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the toll project entity. |
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(b) A toll project entity shall publish a notice of |
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availability of a request for qualifications or proposals in |
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connection with the procurement of a public-private partnership |
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under this chapter in the Texas Register and shall publish the |
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request for qualifications or proposals on the toll project |
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entity's website. |
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(c) A toll project entity that intends to enter into a |
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public-private partnership under this chapter shall issue a request |
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for qualifications that includes: |
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(1) information regarding the project location, |
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scope, budget, and schedule; |
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(2) the criteria to be used to evaluate the responses |
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and the relative weight given to the criteria; |
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(3) a deadline by which responses must be received; |
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and |
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(4) any other information the toll project entity |
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considers relevant or necessary. |
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(d) The toll project entity shall evaluate each response to |
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the request for qualifications based on the criteria described in |
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the request for qualifications and may qualify or shortlist private |
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entities to submit detailed proposals under Subsection (e). The |
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toll project entity must qualify or shortlist at least two private |
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entities to submit detailed proposals for a project under |
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Subsection (e) unless the toll project entity does not receive more |
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than one proposal or one response to a request under Subsection (c). |
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(e) The toll project entity shall issue a request for |
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detailed proposals from all private entities qualified or |
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shortlisted under Subsection (d) if the toll project entity |
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proceeds with the further evaluation of a proposed public-private |
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partnership. A request under this subsection may require |
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additional information relating to: |
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(1) the private entity's qualifications and |
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demonstrated technical competence; |
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(2) the feasibility of developing the project as |
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proposed; |
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(3) engineering or architectural designs; |
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(4) the private entity's ability to meet schedules; |
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(5) a financial plan, including costing methodology |
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and cost proposals; |
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(6) the information identified in Section 373.059 |
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concerning the rights of the toll project entity to purchase the |
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interest of the private entity in the toll project that is the |
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subject of the public-private partnership; and |
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(7) any other information the toll project entity |
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considers relevant or necessary. |
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(f) A private entity responding to a request for detailed |
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proposals issued under Subsection (e) may submit alternative |
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proposals based on public-private partnerships having different |
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terms, with the alternative terms in multiples of 10 years, ranging |
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from 10 years from the later of the date of final acceptance of the |
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project or the start of revenue operations by the private entity to |
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50 years from the later of the date of final acceptance of the |
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project or the start of revenue operations by the private entity, |
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not to exceed a total term of 52 years or any lesser term provided in |
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a public-private partnership agreement. |
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(g) In issuing a request for detailed proposals under |
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Subsection (e), the toll project entity may solicit input from |
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entities qualified under Subsection (d) or any other person. The |
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toll project entity may also solicit input regarding alternative |
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technical concepts after issuing a request under Subsection (e). |
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(h) The toll project entity shall evaluate each proposal |
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based on the criteria described in the request for detailed |
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proposals and select the private entity whose proposal offers the |
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apparent best value to the toll project entity. |
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(i) The toll project entity may enter into negotiations with |
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the private entity whose proposal offers the apparent best value. |
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(j) If at any point in negotiations under Subsection (i) it |
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appears to the toll project entity that the highest ranking |
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proposal will not provide the toll project entity with the overall |
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best value, the toll project entity may enter into negotiations |
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with the private entity submitting the next highest ranking |
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proposal. |
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(k) The toll project entity may withdraw a request for |
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qualifications or a request for detailed proposals at any time. The |
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toll project entity may then publish a new request for |
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qualifications. |
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(l) A toll project entity may accept unsolicited proposals |
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for a proposed public-private partnership. If a toll project |
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entity accepts an unsolicited proposal pursuant to this subsection, |
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the toll project entity shall issue a request for competing |
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proposals and qualifications that includes the information |
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required by Subsection (c) and shall evaluate those proposals and |
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qualify or shortlist private entities to submit detailed proposals |
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consistent with Subsection (d). The toll project entity may |
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require that an unsolicited proposal be accompanied by a |
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nonrefundable fee sufficient to cover all or part of its cost to |
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review the proposal. |
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(m) The toll project entity may prescribe the general form |
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of a public-private partnership agreement and may include any |
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matter the toll project entity considers advantageous to the toll |
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project entity. The toll project entity and the private entity |
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shall finalize the specific terms of a public-private partnership. |
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(n) Notwithstanding the requirements of this section, if a |
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toll project entity has entered or enters into a comprehensive |
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development agreement or a public-private partnership for one or |
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more segments or phases of a toll project, it may enter into a |
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public-private partnership, one or more facility implementation |
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agreements, or any other agreement which provides for the design, |
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construction, financing, acquisition, maintenance, or operation of |
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any additional segments or phases of the toll project if such |
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agreement is with the same party that was a party to the previous |
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comprehensive development agreement or public-private partnership. |
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No additional process shall be required prior to execution of an |
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agreement under this subsection provided that the toll project |
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entity finds that the terms and conditions of such agreement are |
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fair and reasonable. |
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(o) Subchapter A of Chapter 223, Transportation Code, and |
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Chapter 2254, Government Code, do not apply to a public-private |
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partnership entered into under this chapter. |
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Sec. 373.053. CONFIDENTIALITY OF INFORMATION. (a) To |
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encourage private entities to submit proposals under this chapter, |
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the following information is confidential, is not subject to |
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disclosure, inspection, or copying under Chapter 552, Government |
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Code, and is not subject to disclosure, discovery, subpoena, or |
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other means of legal compulsion for its release until a final |
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contract for a proposed project is entered into: |
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(1) all or part of a proposal that is submitted by a |
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private entity for a public-private partnership, unless the private |
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entity consents to the disclosure of the information; |
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(2) supplemental information or material submitted by |
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a private entity in connection with a proposal for a public-private |
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partnership, unless the private entity consents to the disclosure |
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of the information or material; and |
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(3) information created or collected by the toll |
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project entity or its agent during consideration of a proposal for a |
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public-private partnership. |
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(b) After the toll project entity completes its final |
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ranking of proposals under Section 373.052(h), the final rankings |
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of each proposal under each of the published criteria are not |
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confidential. |
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Sec. 373.054. PERFORMANCE AND PAYMENT SECURITY. (a) |
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Notwithstanding Section 223.006, Transportation Code, and the |
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requirements of Subchapter B, Chapter 2253, Government Code, a toll |
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project entity shall require a private entity entering into a |
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public-private partnership under this chapter to provide a |
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performance and payment bond or an alternative form of security in |
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an amount sufficient to: |
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(1) ensure the proper performance of the agreement; |
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and |
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(2) protect: |
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(A) the toll project entity; and |
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(B) payment bond beneficiaries who have a direct |
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contractual relationship with the private entity or a subcontractor |
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of the private entity to supply labor or material. |
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(b) A performance and payment bond or alternative form of |
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security shall be in an amount equal to the cost of constructing or |
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maintaining the toll project. |
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(c) If the toll project entity determines that it is |
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impracticable for a private entity to provide security in the |
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amount described by Subsection (b), the toll project entity shall |
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set the amount of the bonds or the alternative forms of security. |
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(d) A payment or performance bond or alternative form of |
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security is not required for the portion of a public-private |
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partnership that includes only design or planning services, the |
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performance of preliminary studies, or the acquisition of real |
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property. |
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(e) The amount of the payment security must not be less than |
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the amount of the performance security. |
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(f) In addition to or instead of a performance and payment |
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bond, the toll project entity may require one or more of the |
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following alternative forms of security: |
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(1) a cashier's check drawn on a financial entity specified |
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by the toll project entity; |
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(2) a United States bond or note; |
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(3) an irrevocable bank letter of credit; or |
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(4) any other form of security determined suitable by |
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the toll project entity. |
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(g) The toll project entity by rule shall prescribe |
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requirements for an alternative form of security provided under |
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this section. |
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Sec. 373.055. OWNERSHIP OF TOLL PROJECTS. A toll project |
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that is the subject of a public-private partnership with a private |
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entity, including the facilities acquired or constructed on the |
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project, is public property and shall be owned by the toll project |
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entity or another public entity to which the toll project entity may |
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transfer the project. |
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Sec. 373.056. LIABILITY FOR PRIVATE OBLIGATIONS. The toll |
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project entity may not incur a financial obligation for a private |
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entity that designs, develops, finances, constructs, maintains, or |
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operates a toll project under this chapter. The state or a |
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political subdivision of the state is not liable for any financial |
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or other obligations of a project solely because a private entity |
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constructs, finances, or operates any part of the project. |
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Sec. 373.057. TERMS OF PRIVATE PARTICIPATION. (a) The toll |
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project entity shall negotiate the terms of private participation |
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under this chapter, including: |
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(1) methods to determine the applicable cost, profit, |
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and project distribution among the private entity and the toll |
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project entity; |
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(2) reasonable methods to determine and classify toll |
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rates and responsibility for the setting of tolls; |
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(3) acceptable safety and policing standards; and |
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(4) other applicable professional, consulting, |
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construction, operation, and maintenance standards, expenses, and |
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costs. |
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(b) A public-private partnership entered into under this |
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chapter must include a provision providing for the purchase by the |
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toll project entity of the interest of a private entity in the |
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public-private partnership and related property as required by |
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Section 373.059 and may include any other provision the toll |
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project entity considers appropriate. |
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(c) The toll project entity may enter into a public-private |
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partnership under this chapter with a private entity only if the |
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project is identified in the department's unified transportation |
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program or is located on a transportation corridor identified in |
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the statewide transportation plan. |
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(d) Section 373.056 does not apply to the obligations of the |
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toll project entity under a public-private partnership. |
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(e) Notwithstanding anything in Section 201.112, |
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Transportation Code, or other law to the contrary, and subject to |
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compliance with the dispute resolution procedures set out in the |
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public-private partnership agreement, an obligation of the toll |
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project entity under a public-private partnership entered into |
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under this chapter to make or secure payments to a person because |
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of the termination of the agreement, including the purchase of the |
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interest of a private participant or other investor in a project, |
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may be enforced by mandamus against the toll project entity in a |
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district court located in a county where all or part of the toll |
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project entity is located, and the sovereign immunity of the toll |
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project entity is waived for that purpose. Notwithstanding the |
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foregoing, the district courts of Travis County shall have |
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exclusive jurisdiction and venue over and to determine and |
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adjudicate all issues necessary to adjudicate any action brought |
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against the commission or the department under this subsection. The |
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remedy provided by this subsection is in addition to any legal and |
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equitable remedies that may be available to a party to a |
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public-private partnership. |
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(f) If the toll project entity enters into a public-private |
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partnership with a private entity that includes the collection by |
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the private entity of tolls for the use of a toll project, the |
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private entity shall submit to the toll project entity for |
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approval: |
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(1) the methodology for: |
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(A) the setting of tolls; and |
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(B) increasing the amount of the tolls; |
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(2) a plan outlining methods the private entity will |
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use to collect the tolls, including: |
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(A) any charge to be imposed as a penalty for late |
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payment of a toll; and |
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(B) any charge to be imposed to recover the cost |
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of collecting a delinquent toll; and |
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(3) any proposed change in an approved methodology for |
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the setting of a toll or a plan for collecting the toll. |
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(g) A public-private partnership with a private entity that |
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includes the collection by the private entity of tolls for the use |
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of a toll project may be for a term not longer than 50 years from the |
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later of the date of final acceptance of the project or the start of |
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revenue operations by the private entity, not to exceed a total |
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term of 52 years. |
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Sec. 373.058. PROHIBITION AGAINST LIMITING OR PROHIBITING |
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CONSTRUCTION OF TRANSPORTATION PROJECTS. (a) A public-private |
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partnership may not contain a provision that limits or prohibits |
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the construction, reconstruction, expansion, rehabilitation, |
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operation, or maintenance of a highway or other transportation |
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project, as that term is defined by Section 370.003, by the toll |
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project entity or other governmental entity, or by a private entity |
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under a contract with the toll project entity or other governmental |
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entity. |
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(b) Except as provided by Subsection (c), a public-private |
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agreement may contain a provision authorizing the toll project |
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entity to negotiate with the private entity for the loss of toll |
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revenues attributable to the construction by the toll project |
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entity of a limited access highway project located within an area |
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that extends up to four miles from either side of the centerline of |
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the project developed under the agreement, less the private |
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entity's decreased operating and maintenance costs attributable to |
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the highway project, if any. A provision under this section may be |
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effective only for a period of 30 years or less from the effective |
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date of the agreement. |
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(c) A public-private partnership may not require the toll |
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project entity to provide compensation for the construction of: |
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(1) a project contained in the state transportation |
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plan or a transportation plan of a metropolitan planning |
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organization in effect on the effective date of the public-private |
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partnership agreement; |
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(2) work on or improvements to a highway project |
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necessary for improved safety, or for maintenance or operational |
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purposes; |
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(3) a high occupancy vehicle exclusive lane addition |
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or other work on any highway project that is required by an |
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environmental regulatory agency; |
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(4) a transportation project that provides a mode of |
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transportation that is not included in the project that is the |
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subject of the public-private partnership; or |
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(5) a highway designated an interstate highway. |
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(d) The private entity has the burden of proving any loss of |
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toll revenue resulting from the construction of a highway project |
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described by Subsection (b). |
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(e) A public-private partnership that contains a provision |
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described by Subsection (b) must require the private entity to |
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provide compensation to the toll project entity in the amount of |
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any increase in toll revenues received by the private entity that |
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is attributable to the construction of a highway project described |
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by Subsection (b), less the private entity's increased operation |
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and maintenance costs attributable to the highway project, if any. |
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Sec. 373.059. TERMINATION BY PURCHASE. (a) A |
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public-private partnership agreement must contain a provision |
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authorizing the toll project entity to purchase, under terms |
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agreed to by the parties: |
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(1) the interest of a private entity in the toll |
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project that is the subject of the agreement; and |
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(2) related property, including any interest in a |
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highway or other facility designed, developed, financed, |
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constructed, operated, or maintained under the public-private |
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partnership agreement. |
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(b) The provision must include a schedule stating a specific |
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price for the purchase of the toll project at certain intervals |
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from the date the project opens, not less than one year and not to |
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exceed five years, over the term of the public-private partnership |
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agreement. |
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(c) The provision must authorize the toll project entity to |
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purchase the private entity's interest at a stated interval in an |
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amount not to exceed the lesser of: |
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(1) the price stated for that interval; or |
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(2) the then fair market value of the private entity's |
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interest, provided that the fair market value is not less than the |
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private entity's outstanding debt at that time, plus reasonable |
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costs associated with the purchase as defined in the public-private |
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partnership agreement. |
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(d) A toll project entity may not, under any circumstance, |
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purchase the private entity's interest for an amount higher than |
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the stated interval amount. |
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(e) A contract provision to purchase the private entity's |
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interest at the then fair market value as described by Subsection |
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(c)(2) must contain a provision, mutually agreed on by the toll |
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project entity and the private entity, detailing the calculation |
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used to determine that value. |
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(f) The toll project entity shall request a proposed |
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termination-by-purchase schedule in each request for detailed |
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proposals and shall consider and score each schedule in each |
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evaluation of proposals. |
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(g) A private entity shall, not later than 12 months before |
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the date that a new price interval takes effect, notify the toll |
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project entity of the beginning of the price interval. The toll |
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project entity must notify the private entity as to whether it will |
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exercise the option to purchase under this section not later than |
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six months after the date it receives notice under this subsection. |
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(h) A toll project entity must notify the private entity of |
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the toll project entity's intention to purchase the private |
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entity's interest under this section not less than six months |
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before the date of the purchase. |
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Sec. 373.060. TERMINATION OF CERTAIN PUBLIC-PRIVATE |
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PARTNERSHIPS. (a) If a toll project entity elects to terminate a |
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public-private partnership under which a private entity receives |
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the right to operate and collect revenue from a toll project, the |
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toll project entity may: |
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(1) issue bonds or other obligations to: |
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(A) make any applicable termination payments to |
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the private entity; or |
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(B) purchase the interest of the private entity |
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in the toll project or related property; or |
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(2) provide for the payment of obligations of the |
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private entity incurred pursuant to the public-private partnership |
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agreement. |
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(b) A toll project entity has the same powers and duties |
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relating to the financing of payments under Subsection (a)(1) as |
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the toll project entity has under other applicable laws of this |
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state, including Chapters 228, 284, 366, and 370 of this code and |
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Chapter 1371, Government Code, relating to the financing of a toll |
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project of that entity, including the ability to deposit the |
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proceeds of bonds or other obligations and to pledge, encumber, and |
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expend the proceeds and revenues of a toll project as provided by |
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law. |
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(c) The powers held by the toll project entity include the |
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power to authorize the issuance of bonds or other obligations and to |
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pay all or part of the costs of a payment described in Subsection |
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(a)(1), in the amount determined by the toll project entity. Costs |
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associated with a payment under Subsection (a)(1) are considered a |
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cost of the project. |
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(d) This section shall be liberally construed to effect its |
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purposes. |
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Sec. 373.061. ACQUISITION OF PROPERTY. The acquisition of |
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property for a toll project subject to a public-private partnership |
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under this chapter shall be subject to all other laws regarding the |
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acquisition and condemnation of property by the toll project |
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entity, including Chapter 21, Property Code. |
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Sec. 373.062. RULES, PROCEDURES, AND GUIDELINES GOVERNING |
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SELECTION AND NEGOTIATING PROCESS. (a) A toll project entity shall |
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adopt rules, procedures, and guidelines governing selection of a |
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private entity for a public-private partnership and negotiations to |
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promote fairness, obtain private participation in projects, and |
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promote confidence among private entities. The rules must contain |
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criteria relating to the qualifications of the participants and |
|
the award of the contracts. |
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(b) The toll project entity shall have up-to-date |
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procedures for participation in negotiations under this chapter. |
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(c) The toll project entity has exclusive judgment to |
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determine the terms of a public-private partnership. |
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SECTION 2. Sections 223.201(a) and (b), Transportation |
|
Code, are amended to read as follows: |
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(a) Subject to Section 223.202, the department may enter |
|
into a comprehensive development agreement with a private entity to |
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design, develop, finance, construct, maintain, repair, operate,
|
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extend, or expand a: |
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(1) toll project; or |
|
(2) facility or a combination of facilities on the |
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Trans-Texas Corridor; |
|
(3) state highway improvement project that includes
|
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both tolled and nontolled lanes and may include nontolled |
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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.
|
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(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
|
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described in Subsection (a). |
|
SECTION 3. Section 284.003(a), Transportation Code, is |
|
amended to read as follows: |
|
(a) A county, acting through the commissioners court of the |
|
county, or a local government corporation, without state approval, |
|
supervision, or regulation, may: |
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(1) construct, acquire, improve, operate, maintain, |
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or pool a project located: |
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(A) exclusively in the county; |
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(B) in the county and outside the county; or |
|
(C) in one or more counties adjacent to the |
|
county; |
|
(2) issue tax bonds, revenue bonds, or combination tax |
|
and revenue bonds to pay the cost of the construction, acquisition, |
|
or improvement of a project; |
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(3) impose tolls or charges as otherwise authorized by |
|
this chapter; |
|
(4) construct a bridge over a deepwater navigation |
|
channel, if the bridge does not hinder maritime transportation; |
|
(5) construct, acquire, or operate a ferry across a |
|
deepwater navigation channel; |
|
(6) in connection with a project, on adoption of an |
|
order exercise the powers of a regional mobility authority |
|
operating under Chapter 370; or |
|
(7) enter into a comprehensive development agreement |
|
with a private entity to design, develop, finance, construct, |
|
maintain, repair, operate, extend, or expand a proposed or existing |
|
project in the county to the extent and in the manner applicable to |
|
the department under Chapter 223 or to a regional tollway authority |
|
under Chapter 366, provided that a comprehensive development |
|
agreement that provides for the design, construction, and financing |
|
of a toll project and also provides for the acquisition, |
|
maintenance, or operation of the project must comply with the |
|
requirements of Chapter 373, Transportation Code.
|
|
SECTION 4. Sections 366.401, Transportation Code, is |
|
amended by adding Subsection (e) to read as follows: |
|
(e) A comprehensive development agreement entered into |
|
pursuant to this subchapter that provides for the design, |
|
construction, and financing of a toll project and also provides for |
|
the acquisition, maintenance, or operation of the project must |
|
comply with the requirements of Chapter 373, Transportation Code. |
|
SECTION 5. Sections 370.305(a) and (b), Transportation |
|
Code, are amended to read as follows: |
|
(a) An authority may use a comprehensive development |
|
agreement with a private entity to construct, maintain, repair, |
|
operate, extend, or expand a transportation project.
|
|
(b) A comprehensive development agreement is an agreement |
|
with a private entity that, at a minimum, provides for the design |
|
and construction of a transportation project and may also provide |
|
for the financing, acquisition, maintenance, or operation of a
|
|
transportation project. |
|
SECTION 6. Sections 223.201(f), (h) and (i), Transportation |
|
Code, and Sections 370.305(d), (e) and (f), Transportation Code, |
|
are repealed. |
|
SECTION 7. 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 |
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Act takes effect September 1, 2011. |