Bill Text: TX HB3650 | 2013-2014 | 83rd Legislature | Introduced
Bill Title: Relating to the authority of the Texas Department of Transportation to enter into availability payment agreements for the design, development, financing, construction, maintenance, or operation of a highway project.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2013-05-08 - Placed on General State Calendar [HB3650 Detail]
Download: Texas-2013-HB3650-Introduced.html
83R12195 JAM-F | ||
By: Harper-Brown | H.B. No. 3650 |
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relating to the authority of the Texas Department of Transportation | ||
to enter into availability payment agreements for the design, | ||
development, financing, construction, maintenance, or operation of | ||
a highway project. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Chapter 223, Transportation Code, is amended by | ||
adding Subchapter G to read as follows: | ||
SUBCHAPTER G. AVAILABILITY PAYMENT AGREEMENTS | ||
Sec. 223.301. AUTHORITY. (a) The department may enter into | ||
an agreement with a private entity for the design, development, | ||
financing, construction, maintenance, or operation of a toll or | ||
nontoll facility on the state highway system under which the | ||
private entity is compensated through milestone or periodic | ||
payments based on the private entity's compliance with performance | ||
requirements defined in the agreement. | ||
(b) Performance requirements in an agreement entered into | ||
under this chapter may include requirements relating to the | ||
availability of lanes for use by the traveling public. | ||
(c) Subchapter A of this chapter and Chapter 2254, | ||
Government Code, do not apply to an agreement entered into under | ||
this subchapter. | ||
Sec. 223.302. SOURCE OF PAYMENT. (a) Subject to | ||
Subsections (b) and (c), the department may use any available funds | ||
for the purpose of making a payment under an agreement entered into | ||
under this subchapter, including money in the state highway fund | ||
that is required to be used for public roadways by the Texas | ||
Constitution or federal law. | ||
(b) The total amount of compensation paid out of the state | ||
highway fund may not exceed the amounts that are: | ||
(1) eligible to be paid from those funds under the | ||
Texas Constitution; and | ||
(2) incurred or are reasonably anticipated to be | ||
incurred by the private entity during the term of the agreement. | ||
(c) The department's obligation to make a payment is subject | ||
to the availability of funds appropriated by the legislature that | ||
may be used for that purpose or other funds that may be used for that | ||
purpose. | ||
(d) The department may hold money that is to be used to | ||
satisfy payment obligations of the department under an agreement | ||
entered into under this subchapter, including money from the state | ||
highway fund that is to be used for payments under this section, in | ||
a reserve fund or trust account created under an agreement with a | ||
commercial bank, depository trust company, or other entity. | ||
Sec. 223.303. STIPULATED AMOUNT FOR UNSUCCESSFUL | ||
PROPOSERS. (a) The department may pay an unsuccessful proposer | ||
that submits a responsive proposal to a request for proposals for an | ||
agreement under this subchapter a stipulated amount for the work | ||
product contained in the proposal. The stipulated amount must be | ||
specified in the request for proposals and may not exceed the value | ||
of any work product contained in the proposal that the department | ||
determines can be used by the department in the performance of the | ||
department's functions. | ||
(b) After payment of the stipulated amount, the department | ||
and the unsuccessful proposer jointly own the rights to the work | ||
product contained in the unsuccessful proposal, including the | ||
technologies, techniques, methods, processes, ideas, and | ||
information contained in the proposal, and the department may use | ||
that work product. | ||
(c) The use by the department or the unsuccessful proposer | ||
of any portion of the work product contained in an unsuccessful | ||
proposal is at the sole risk of that entity and does not confer on | ||
the other entity liability or a right to compensation. | ||
Sec. 223.304. PERFORMANCE OR PAYMENT BOND. (a) The | ||
department shall require a private entity entering into an | ||
agreement with the department under this subchapter to provide: | ||
(1) a performance and payment bond; or | ||
(2) an alternative form of security authorized by | ||
Section 223.205. | ||
(b) Except as provided by Subsection (c), a performance and | ||
payment bond or alternative form of security shall be in an amount | ||
equal to the cost of constructing the facility. | ||
(c) If the department determines that it is impracticable | ||
for a private entity to provide security in the amount described by | ||
Subsection (b), the department shall set the security in an amount | ||
sufficient to: | ||
(1) ensure the proper performance of the agreement; | ||
and | ||
(2) protect: | ||
(A) the department; and | ||
(B) persons who have a direct contractual | ||
relationship with the private entity or a subcontractor of the | ||
private entity to supply labor or material. | ||
Sec. 223.305. OTHER TERMS. An agreement entered into under | ||
this subchapter may include any provision that the department | ||
considers appropriate, including a provision: | ||
(1) for the purchase by the department, under terms | ||
agreed to by the parties, of the interest of the private entity in | ||
the agreement and related property, including any interest in a | ||
highway or other facility designed, developed, financed, | ||
constructed, maintained, or operated under the agreement; | ||
(2) that establishes the purchase price, or the | ||
methodology to be used to determine the purchase price, for the | ||
interest of the private entity in the agreement and related | ||
property; or | ||
(3) for the payment of obligations incurred under the | ||
agreement, including any obligation to pay the purchase price for | ||
the interest of the private entity in the agreement and related | ||
property, from any lawfully available source, including the | ||
securing of the obligation by a pledge of revenues of the commission | ||
or the department derived from the facility that is subject to the | ||
agreement, with the priority for the pledge set by the department. | ||
Sec. 223.306. 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 an agreement under this subchapter, except | ||
information regarding the location, scope, or limits of a proposed | ||
project and information regarding the private entity's | ||
qualifications, experience, technical competence, and capability | ||
to develop the project, 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 an agreement | ||
under this subchapter, 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 an agreement | ||
under this subchapter. | ||
(b) After the department completes its final ranking of | ||
proposals submitted under this subchapter, the final rankings of | ||
each proposal under each of the published criteria are not | ||
confidential. | ||
Sec. 223.307. OWNERSHIP OF FACILITIES. (a) A state highway | ||
or another facility that is the subject of an availability payment | ||
agreement under this subchapter is public property and shall be | ||
owned by the department. | ||
(b) Notwithstanding Subsection (a), the department 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 and shall be | ||
returned to the department in satisfactory condition at no further | ||
cost. | ||
Sec. 223.308. RULES. The commission may adopt rules | ||
necessary to implement this subchapter. Rules adopted by the | ||
commission may include criteria for determining the most qualified | ||
entities to submit proposals, and for the award of an agreement to | ||
the private entity determined to provide the best value for the | ||
department. | ||
SECTION 2. 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 | ||
Act takes effect September 1, 2013. |