| (a) Purpose. Transportation Code, §371.101 requires
a comprehensive development agreement under which a private participant
receives the right to operate and collect revenue from a toll project
to contain a provision authorizing the department to terminate the
agreement for convenience and purchase the interest of the private
participant in the comprehensive development agreement and related
property, and to include a price breakdown stating a specific price
for the purchase of the private participant's interest at specified
intervals from the date the toll project opens. This section describes
the methodology for determining the compensation amount owed to the
private participant as a result of the termination for convenience
of a comprehensive development agreement in which the private participant
has an ownership right to the toll revenues and is subject to Transportation
Code, §371.101.
(b) Definitions. The following words and terms, when
used in this section, shall have the following meanings, unless the
context clearly indicates otherwise.
(1) Fair market value--The amount that a willing and
able buyer would offer, and a willing and able seller would accept,
for the purchase and sale of the private participant's interest, in
an arm's length transaction, under the conditions specified in the
comprehensive development agreement.
(2) Specified interval--A period of not less than two
years and not more than five years that is specified by the department
within the term of the comprehensive development agreement from the
date the toll project opens, as defined in the comprehensive development
agreement.
(c) Price breakdown. A proposer shall include a proposed
price breakdown in its proposal, using the specified intervals required
by the department. The department will evaluate the proposed price
breakdowns as provided in §27.4 of this subchapter.
(d) Compensation amount. A comprehensive development
agreement under which a private participant has an ownership right
to revenue from a toll project shall include provisions regarding
compensation to the private participant if the department chooses
to exercise its option to terminate for convenience the comprehensive
development agreement at any time before the toll project opens. A
comprehensive development agreement under which a private participant
has an ownership right to revenue from a toll project shall provide
that, if the department chooses to exercise its option to terminate
for convenience the comprehensive development agreement and lease
at any time during a specified interval, the compensation to the private
participant respecting the termination may not exceed the lesser of:
(1) the price stated for the interval in the price
breakdown included in the comprehensive development agreement that
is in effect on the date of purchase, as defined in the comprehensive
development agreement; or
(2) the greater of:
(A) the fair market value of the private participant's
interest on the valuation date, as defined in the comprehensive development
agreement, plus or minus any other applicable amounts specified in
the comprehensive development agreement; or
(B) an amount equal to the amount of outstanding debt
specified in the comprehensive development agreement, plus or minus
any other applicable amounts specified in the comprehensive development
agreement.
(e) Notification of price interval and exercise of
option to terminate. A comprehensive development agreement subject
to this section shall include a provision requiring the private participant
to notify the department of the beginning of a price interval not
later than 12 months before the price interval takes effect. The department
shall notify the private participant if it will exercise the option
to terminate for convenience the comprehensive development agreement
during the price interval not later than 6 months after receiving
the private participant's notice. The comprehensive development agreement
shall provide that the department may rescind a notice of the exercise
of an option to terminate without liability.
(f) Adjustments to compensation amount. If a project
requires expansion or reconstruction in a manner that differs from
the manner provided in the original project scope or schedule, the
price for terminating the comprehensive development agreement may
be adjusted to reflect the changes in the agreement.
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