Texan pols finally cook up Swiss cheese freeze - SB792

May 28, 2007
By Peter Samuel

On about their 57th shot this year at writing a new law for toll concessions Texas' politicians have contrived to produce a Swiss cheese freeze - a freeze on concessions shot through with a load of loopholes and exemptions. No one much likes it, not the moratorium crowd, not the road builders, but all think it could have been worse, so in the spirit of democratic compromise - sheer exhaustion more likely - SB792 is being hailed as something most can live with. They'll have to.

Until they amend it again, which they certainly will.


In the last days of this bizarre legislative session in Austin the seemingly endless back and forth over tollroads was overshadowed by frenzied scenes of jeering, chants, walkouts, and scuffles over control of microphones as the House Speaker Thomas Craddick played banana republic autocrat, repeatedly refusing to acknowledge motions of no confidence in his management of the house. Advisers who told him he was in breach of legislative rules and precedent were simply fired - caudillo style.

Governor Perry will sign the tollroad bill even though it stops many of the tollroad projects his administration sponsored and said were essential for the future of Texas. And even though the date for a veto override had passed.

The bill SB792 is headed up "A BILL TO BE ENTITLED AN ACT relating to the authority of certain counties and other entities with respect to certain transportation projects and to comprehensive development agreements with regard to such projects..." and continues in this mode of never using a single precise word where a dozen vagaries can be cobbled together.

It's an illogical bill - a dog's breakfast. First it asserts a moratorium on concessions to Sept 1 2009, then most of the bill is devoted to exemptions and to laying out the terms under which concessions can be written:

- concession terms may be 10, 20, 30, 40, 50 or 52 years from start of toll collection (the actual bill takes nearly a page to say that)

- concession contracts must provide a mechanism for early termination by the state or other concessionee (all do anyway)

- payments to unsuccessful concession proposers will be limited to their value to the concessionee

The moratorium is enacted on toll concessions (defined as "comprehensive development agreements permitting the private participant to operate the toll project and collect toll revenues") from May 1, 2007. This in a bill not yet law when we write May 28! (Invitation to challenge in the courts?)

Here is the moratorium as stated early in the bill before exemptions are listed:

" ARTICLE 3. MORATORIUM ON CERTAIN TERMS IN COMPREHENSIVE
DEVELOPMENT AGREEMENTS OR SALE OF TOLL PROJECTS
SECTION 3.01. Subchapter E, Chapter 223, Transportation
Code, is amended by adding Section 223.210 to read as follows:
Sec. 223.210. MORATORIUM ON CERTAIN TERMS IN COMPREHENSIVE
DEVELOPMENT AGREEMENTS OR SALE OF TOLL PROJECTS. (a) In this
section:
(1) "Toll project" means a toll project described by
Section 201.001(b), regardless of whether the toll project:
(A) is a part of the state highway system; or
(B) is subject to the jurisdiction of the
department.
(2) "Toll project entity" means a public entity
authorized by law to acquire, design, construct, finance, operate,
or maintain a toll project, including:
(A) the department;
(B) a regional tollway authority;
(C) a regional mobility authority; or
(D) a county.
(b) A comprehensive development agreement entered into with
a private participant by a toll project entity on or after May 1,
2007, for the acquisition, design, construction, financing,
operation, or maintenance of a toll project may not contain a
provision permitting the private participant to operate the toll
project or collect revenue from the toll project, regardless of
whether the private participant operates the toll project or
collects the revenue itself or engages a subcontractor or other
entity to operate the toll project or collect the revenue."

Exemptions

Specifically exempted are these projects:

- Trinity parkway Dallas City
- managed (toll) lane projects in poor air quality areas for which requests for proposals were issued before May 1 2007
- Loop 9 south of Dallas area
- SH99 or Grand Parkway Houston
- parts of Trans Texas Corridor 69 near Corpus Christi
- SH121 north of Dallas exempt but project must go to NTTA if its offer is assessed as of greater value than the selected concessionaire
- US281 north of San Antonio
- El Paso projects

(Here is the obfuscatory way the bill says El Paso: "(r) Subsection (b) does not apply to a project that is located in a county with a population of 300,000 or more and adjacent to an international border, except that Subsection (b) does not apply to a project that is located in a county that has a population of 600,000 or more and is adjacent to an international border only if before May 1, 2007, the project has been adopted by the metropolitan planning organization for the county in the transportation improvement plan or metropolitan transportation plan.")

Public toll projects may not be privatized, says another clause.


For managed lane concessions TxDOT must get local government acknowledgment of penalties for new competing capacity.

A legislative study committee is created to hold hearings and study the implications of toll concessions and privatization of public tollroads and report by Dec 2008.

More public information is mandated for the Trans Texas Corridor projects.

Harris County primacy

Harris County in the Houston area is given primacy in doing the following tollroads:
(1) Beltway 8 Tollway East, between US 59 North and US90 East
(2) Hardy Downtown Connector, consisting of the proposed direct connection from the Hardy Toll Road southern terminus at Loop 610 to downtown Houston
(3) State Highway 288, between US59 and Grand Parkway South (State Highway 99);
(4) US290 Toll Lanes, between I-610 West and the Grand Parkway Northwest (State Highway 99);
(5) Fairmont Parkway East, between Beltway 8 East and Grand Parkway East (State Highway 99);
(6) South Post Oak Road Extension, between I-610 South and near the intersection of Beltway 8 and Hillcroft in the vicinity of the Fort Bend Parkway Tollway;
(7) Westpark Toll Road Phase II, between Grand Parkway (State Highway 99) and FM 1463;
(8) Fort Bend Parkway, between State Highway 6 and the Brazos River; and
(9) Montgomery County Parkway, between State Highway 242 and the Grand Parkway (State Highway 99), and if the Grand Parkway project has not begun construction, a nontolled extension of the Montgomery County Parkway to allow a connection to I-45.

Unlike earlier legislation (HB1892) vetoed by the Governor SB 792 seems to give TxDOT reserve powers to keep the state in compliance with federal law so local governments cannot encumber state assets.

"Notwithstanding an action of a county taken under this section, the commission or department may take any action that is necessary in its reasonable judgment to comply with any federal requirement to enable this state to receive federal-aid highway funds."

Local authorities are to always have first option to develop toll projects, TxDOT only being able to move in if they decline. TxDOT must gain local approval for the terms of a toll project from counties in which they are located. If they can't agree the project won't go ahead. There are pages of mindnumbingly repetitive verbiage on this, with 'Notwithstanding' the favorite first word for sentences.

Exemption is given to a requirement for MPO approval for a bunch of NTTA projects:
(1) any project for which the department has issued a request for qualifications or request for competing proposals and qualifications before May 1, 2007, except for the State Highway 161 project in Dallas County;
(2) the eastern extension of the President George Bush Turnpike from State Highway 78 to I-30 in Dallas County;
(3) the Phase 3 and 4 extensions of the Dallas North Tollway in Collin and Denton Counties from State Highway 121 to the Grayson County line, and the planned future extension into Grayson County, regardless of which local toll project entity develops the
extension into Grayson County;
(4) the Lewisville Lake Bridge (and portions of FM 720 widening projects) in Denton County;
(5) the Southwest Parkway (State Highway 121) in Tarrant County from Dirks Road/Altamesa Boulevard to I-30.

Subject to requirements of federal law counties are given new power to initiate and approve new toll projects. The bill still gives counties the right to use state highway right of way.

On comprehensive development agreements the bill at one point redefines them to to design-build and availability payment contracts by the state or local government: "Sec. 366.401. COMPREHENSIVE DEVELOPMENT AGREEMENTS. (a) An authority may use a comprehensive development agreement with a private entity to design, develop, finance, construct, maintain, repair, operate, extend, or expand a turnpike project." (Note omission of the right to toll revenues)

Later however it recognizes concessions, here: "Sec. 366.407. TERMS OF PRIVATE PARTICIPATION...(5) concerning the private participant's right to operate and collect revenue from the turnpike project..."

Here there is the normal boilerplate of toll concessions. Gone is the flat "killer clause" of earlier legislation giving the concessionee the right to terminate the concession for convenience at cost, depriving the concessionaire completely of market value based on prospective toll revenues. In one place the bill simply says there will be a mechanism established for termination but doesn't rule out basing it on prospective revenues forgone.

However shades of the killer clause reappear later in the bill in somewhat diluted form:

"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)." 

This ambiguity is typical of SB792. Think you've got an issue spelled out one place, and darn it, a few pages later the same issue is raised again adn dealt with somewhat differently. The thing's a mishmash.

The end of the moratorium is apparently provided for in this little vaguery: "(q)  This section expires September 1, 2009."

On a first reading we thought the section referred to was the immediately preceding section about the legislative study and that it cancelled the authority to study, but talking to others we've been persuaded it refers to the whole moratorium so-called.

Guess the bill writers are incapable of a straightforward: "This moratorium expires September 1, 2009." (REVISED HERE 2007-05-29 10:00)

TxDOT/NTTA agreement the basis for SH121 procurement "is invalidated" - the Hugo Chavez clause

One section late in the bill is uncharacteristically terse. It simply declares "invalidated" the TxDOT/NTTA regional protocol agreement of Aug 10 2006 in which the public toll authority NTTA agreed not to bid for SH121. The absense of a bid from NTTA was the basis on which private groups were invited to bid for a toll concession, a competition held and a concessionaire selected.

First TxDOT, now the legislature, treat the terms of this procurement in cavalier fashion, arbitrarily changing the terms of that 90%-done procurement - a nasty precedent if the state cares about its credibility as a partner.

Attorney general and state auditor to have hand in concessions

Then it's back to dictating the terms of future or exempt concessions. The bill provides for the state attorney general to pass on the legalities of concessions and the state auditor to verify the traffic and revenue estimates of concessions before they can be finalized.

Non-compete clauses

The bill maintains the "non compete" formula put in SH130 5&6 and SH121 in which there is no bar to additional free capacity but a right of the concessionaire to seek compensation. New is a limit to compensation for extra capacity within 6.5km (4 miles) of the concession tollroad:

"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.

The bill passed 29/1 in the Senate and 127/19 in the House May 26.

U-turn from four years ago

The "moratorium" or freeze in SB792 is almost a total reversal of - a U-turn from - HB3588 passed just over four years ago encouraging toll concessions. HB3588 passed 31/0 in the Senate and 137/2 in the House May 10 2003. An interesting point: none of the toll concessions envisaged in the Austin capital region got exemptions. That means the pols will soon see the results of their shenanigans up close.


TOLLROADSnews 2007-05-28



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