Bill Text: TX SB1048 | 2011-2012 | 82nd Legislature | Enrolled

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Bill Title: Relating to the creation of public and private facilities and infrastructure.

Spectrum: Partisan Bill (Republican 2-0)

Status: (Passed) 2011-06-17 - Effective on 9/1/11 [SB1048 Detail]

Download: Texas-2011-SB1048-Enrolled.html

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S.B. No. 1048

AN ACT
relating to the creation of public and private facilities and
infrastructure.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle F, Title 10, Government Code, is
amended by adding Chapters 2267 and 2268 to read as follows:
CHAPTER 2267. PUBLIC AND PRIVATE FACILITIES AND INFRASTRUCTURE
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 2267.001. DEFINITIONS. In this chapter:
(1) "Affected jurisdiction" means any county or
municipality in which all or a portion of a qualifying project is
located.
(2) "Comprehensive agreement" means the comprehensive
agreement authorized by Section 2267.058 between the contracting
person and the responsible governmental entity.
(3) "Contracting person" means a person who enters
into a comprehensive or interim agreement with a responsible
governmental entity under this chapter.
(4) "Develop" means to plan, design, develop, finance,
lease, acquire, install, construct, or expand a qualifying project.
(5) "Governmental entity" means:
(A) a board, commission, department, or other
agency of this state, including an institution of higher education
as defined by Section 61.003, Education Code, that elects to
operate under this chapter through the adoption of a resolution by
the institution's board of regents; and
(B) a political subdivision of this state that
elects to operate under this chapter by the adoption of a resolution
by the governing body of the political subdivision.
(6) "Interim agreement" means an agreement authorized
by Section 2267.059 between a contracting person and a responsible
governmental entity that proposes the development or operation of
the qualifying project.
(7) "Lease payment" means any form of payment,
including a land lease, by a governmental entity to the contracting
person for the use of a qualifying project.
(8) "Material default" means any default by a
contracting person in the performance of duties imposed under
Section 2267.057(f) that jeopardizes adequate service to the public
from a qualifying project.
(9) "Operate" means to finance, maintain, improve,
equip, modify, repair, or operate a qualifying project.
(10) "Qualifying project" means:
(A) any ferry, mass transit facility, vehicle
parking facility, port facility, power generation facility, fuel
supply facility, oil or gas pipeline, water supply facility, public
work, waste treatment facility, hospital, school, medical or
nursing care facility, recreational facility, public building, or
other similar facility currently available or to be made available
to a governmental entity for public use, including any structure,
parking area, appurtenance, and other property required to operate
the structure or facility and any technology infrastructure
installed in the structure or facility that is essential to the
project's purpose; or
(B) any improvements necessary or desirable to
unimproved real estate owned by a governmental entity.
(11) "Responsible governmental entity" means a
governmental entity that has the power to develop or operate an
applicable qualifying project.
(12) "Revenue" means all revenue, income, earnings,
user fees, lease payments, or other service payments that support
the development or operation of a qualifying project, including
money received as a grant or otherwise from the federal government,
a governmental entity, or any agency or instrumentality of the
federal government or governmental entity in aid of the project.
(13) "Service contract" means a contract between a
governmental entity and a contracting person under Section
2267.054.
(14) "Service payment" means a payment to a
contracting person of a qualifying project under a service
contract.
(15) "User fee" means a rate, fee, or other charge
imposed by a contracting person for the use of all or part of a
qualifying project under a comprehensive agreement.
Sec. 2267.002. DECLARATION OF PUBLIC PURPOSE; CONSTRUCTION
OF CHAPTER. (a) The legislature finds that:
(1) there is a public need for timely acquisition,
design, construction, improvement, renovation, expansion,
equipping, maintenance, operation, implementation, and
installation of education facilities, technology and other public
infrastructure, and government facilities in this state that serve
a public need and purpose;
(2) the public need may not be wholly satisfied by
existing methods of procurement in which qualifying projects are
acquired, designed, constructed, improved, renovated, expanded,
equipped, maintained, operated, implemented, or installed;
(3) there are inadequate resources to develop new
education facilities, technology and other public infrastructure,
and government facilities for the benefit of the citizens of this
state, and there is demonstrated evidence that partnerships between
public entities and private entities or other persons can meet
these needs by improving the schedule for delivery, lowering the
cost, and providing other benefits to the public;
(4) financial incentives exist under state and federal
tax provisions that encourage public entities to enter into
partnerships with private entities or other persons to develop
qualifying projects; and
(5) authorizing private entities or other persons to
develop or operate one or more qualifying projects may serve the
public safety, benefit, and welfare by making the projects
available to the public in a more timely or less costly fashion.
(b) An action authorized under Section 2267.053 serves the
public purpose of this chapter if the action facilitates the timely
development or operation of a qualifying project.
(c) The purposes of this chapter include:
(1) encouraging investment in this state by private
entities and other persons;
(2) facilitating bond financing or other similar
financing mechanisms, private capital, and other funding sources
that support the development or operation of qualifying projects in
order to expand and accelerate financing for qualifying projects
that improve and add to the convenience of the public; and
(3) providing governmental entities with the greatest
possible flexibility in contracting with private entities or other
persons to provide public services through qualifying projects
subject to this chapter.
(d) This chapter shall be liberally construed in conformity
with the purposes of this section.
(e) The procedures in this chapter are not exclusive. This
chapter does not prohibit a responsible governmental entity from
entering into an agreement for or procuring public and private
facilities and infrastructure under other statutory authority.
Sec. 2267.003. APPLICABILITY. This chapter does not apply
to:
(1) the financing, design, construction, maintenance,
or operation of a highway in the state highway system;
(2) a transportation authority created under Chapter
451, 452, 453, or 460, Transportation Code; or
(3) any telecommunications, cable television, video
service, or broadband infrastructure other than technology
installed as part of a qualifying project that is essential to the
project.
Sec. 2267.004. APPLICABILITY OF EMINENT DOMAIN LAW. This
chapter does not alter the eminent domain laws of this state or
grant the power of eminent domain to any person who is not expressly
granted that power under other state law.
[Sections 2267.005-2267.050 reserved for expansion]
SUBCHAPTER B. QUALIFYING PROJECTS
Sec. 2267.051. APPROVAL REQUIRED; SUBMISSION OF PROPOSAL
FOR QUALIFYING PROJECT. (a) A person may not develop or operate a
qualifying project unless the person obtains the approval of and
contracts with the responsible governmental entity under this
chapter. The person may initiate the approval process by
submitting a proposal requesting approval under Section
2267.053(a), or the responsible governmental entity may request
proposals or invite bids under Section 2267.053(b).
(b) A person submitting a proposal requesting approval of a
qualifying project shall specifically and conceptually identify
any facility, building, infrastructure, or improvement included in
the proposal as a part of the qualifying project.
(c) On receipt of a proposal submitted by a person
initiating the approval process under Section 2267.053(a), the
responsible governmental entity shall determine whether to accept
the proposal for consideration in accordance with Sections 2267.052
and 2267.065 and the guidelines adopted under those sections. A
responsible governmental entity that determines not to accept the
proposal for consideration shall return the proposal, all fees, and
the accompanying documentation to the person submitting the
proposal.
(d) The responsible governmental entity may at any time
reject a proposal initiated by a person under Section 2267.053(a).
Sec. 2267.052. ADOPTION OF GUIDELINES BY RESPONSIBLE
GOVERNMENTAL ENTITIES. (a) Before requesting or considering a
proposal for a qualifying project, a responsible governmental
entity must adopt and make publicly available guidelines that
enable the governmental entity to comply with this chapter. The
guidelines must be reasonable, encourage competition, and guide the
selection of projects under the purview of the responsible
governmental entity.
(b) The guidelines for a responsible governmental entity
described by Section 2267.001(5)(A) must:
(1) require the responsible governmental entity to:
(A) make a representative of the entity available
to meet with persons who are considering submitting a proposal; and
(B) provide notice of the representative's
availability;
(2) provide reasonable criteria for choosing among
competing proposals;
(3) contain suggested timelines for selecting
proposals and negotiating an interim or comprehensive agreement;
(4) allow the responsible governmental entity to
accelerate the selection, review, and documentation timelines for
proposals involving a qualifying project considered a priority by
the entity;
(5) include financial review and analysis procedures
that at a minimum consist of:
(A) a cost-benefit analysis;
(B) an assessment of opportunity cost;
(C) consideration of the degree to which
functionality and services similar to the functionality and
services to be provided by the proposed project are already
available in the private market; and
(D) consideration of the results of all studies
and analyses related to the proposed qualifying project;
(6) allow the responsible governmental entity to
consider the nonfinancial benefits of a proposed qualifying
project;
(7) include criteria for:
(A) the qualifying project, including the scope,
costs, and duration of the project and the involvement or impact of
the project on multiple public entities;
(B) the creation of and the responsibilities of
an oversight committee, with members representing the responsible
governmental entity, that acts as an advisory committee to review
the terms of any proposed interim or comprehensive agreement; and
(C) compliance with the requirements of Chapter
2268;
(8) require the responsible governmental entity to
analyze the adequacy of the information to be released by the entity
when seeking competing proposals and require that the entity
provide more detailed information, if the entity determines
necessary, to encourage competition, subject to Section
2267.053(g);
(9) establish criteria, key decision points, and
approvals required to ensure that the responsible governmental
entity considers the extent of competition before selecting
proposals and negotiating an interim or comprehensive agreement;
and
(10) require the posting and publishing of public
notice of a proposal requesting approval of a qualifying project,
including:
(A) specific information and documentation
regarding the nature, timing, and scope of the qualifying project,
as required under Section 2267.053(a);
(B) a reasonable period of not less than 45 days,
as determined by the responsible governmental entity, to encourage
competition and partnerships with private entities and other
persons in accordance with the goals of this chapter, during which
the responsible governmental entity must accept submission of
competing proposals for the qualifying project; and
(C) a requirement for advertising the notice on
the governmental entity's Internet website and on TexasOnline or
the state's official Internet website.
(c) The guidelines of a responsible governmental entity
described by Section 2267.001(5)(B):
(1) may include the provisions required under
Subsection (b); and
(2) must include a requirement that the governmental
entity engage the services of qualified professionals, including an
architect, professional engineer, or certified public accountant,
not otherwise employed by the governmental entity, to provide
independent analyses regarding the specifics, advantages,
disadvantages, and long-term and short-term costs of any proposal
requesting approval of a qualifying project unless the governing
body of the governmental entity determines that the analysis of the
proposal is to be performed by employees of the governmental
entity.
Sec. 2267.053. APPROVAL OF QUALIFYING PROJECTS BY
RESPONSIBLE GOVERNMENTAL ENTITY. (a) A private entity or other
person may submit a proposal requesting approval of a qualifying
project by the responsible governmental entity. The proposal must
be accompanied by the following, unless waived by the responsible
governmental entity:
(1) a topographic map, with a 1:2,000 or other
appropriate scale, indicating the location of the qualifying
project;
(2) a description of the qualifying project,
including:
(A) the conceptual design of any facility or a
conceptual plan for the provision of services or technology
infrastructure; and
(B) a schedule for the initiation of and
completion of the qualifying project that includes the proposed
major responsibilities and timeline for activities to be performed
by the governmental entity and the person;
(3) a statement of the method the person proposes for
securing necessary property interests required for the qualifying
project;
(4) information relating to any current plans for the
development of facilities or technology infrastructure to be used
by a governmental entity that are similar to the qualifying project
being proposed by the person for each affected jurisdiction;
(5) a list of all permits and approvals required for
the development and completion of the qualifying project from
local, state, or federal agencies and a projected schedule for
obtaining the permits and approvals;
(6) a list of any facilities that will be affected by
the qualifying project and a statement of the person's plans to
accommodate the affected facilities;
(7) a statement on the person's general plans for
financing the qualifying project, including the sources of the
person's funds and identification of any dedicated revenue source
or proposed debt or equity investment for the person;
(8) the name and address of each individual who may be
contacted for further information concerning the request;
(9) user fees, lease payments, and other service
payments over the term of any applicable interim or comprehensive
agreement and the methodology and circumstances for changes to the
user fees, lease payments, and other service payments over time;
and
(10) any additional material and information the
responsible governmental entity reasonably requests.
(b) A responsible governmental entity may request proposals
or invite bids from persons for the development or operation of a
qualifying project. A responsible governmental entity shall
consider the total project cost as one factor in evaluating the
proposals received, but is not required to select the proposal that
offers the lowest total project cost. The responsible governmental
entity may consider the following factors:
(1) the proposed cost of the qualifying project;
(2) the general reputation, industry experience, and
financial capacity of the person submitting a proposal;
(3) the proposed design of the qualifying project;
(4) the eligibility of the project for accelerated
selection, review, and documentation timelines under the
responsible governmental entity's guidelines;
(5) comments from local citizens and affected
jurisdictions;
(6) benefits to the public;
(7) the person's good faith effort to comply with the
goals of a historically underutilized business plan;
(8) the person's plans to employ local contractors and
residents;
(9) for a qualifying project that involves a
continuing role beyond design and construction, the person's
proposed rate of return and opportunities for revenue sharing; and
(10) other criteria that the responsible governmental
entity considers appropriate.
(c) The responsible governmental entity may approve as a
qualifying project the development or operation of a facility
needed by the governmental entity, or the design or equipping of a
qualifying project, if the responsible governmental entity
determines that the project serves the public purpose of this
chapter. The responsible governmental entity may determine that
the development or operation of the project as a qualifying project
serves the public purpose if:
(1) there is a public need for or benefit derived from
the project of the type the person proposes as a qualifying project;
(2) the estimated cost of the project is reasonable in
relation to similar facilities; and
(3) the person's plans will result in the timely
development or operation of the qualifying project.
(d) The responsible governmental entity may charge a
reasonable fee to cover the costs of processing, reviewing, and
evaluating the proposal, including reasonable legal fees and fees
for financial, technical, and other necessary advisors or
consultants.
(e) The approval of a responsible governmental entity
described by Section 2267.001(5)(A) is subject to the private
entity or other person entering into an interim or comprehensive
agreement with the responsible governmental entity.
(f) On approval of the qualifying project, the responsible
governmental entity shall establish a date by which activities
related to the qualifying project must begin. The responsible
governmental entity may extend the date.
(g) The responsible governmental entity shall take action
appropriate under Section 552.153 to protect confidential and
proprietary information provided by the contracting person under an
agreement.
(h) Before entering into the negotiation of an interim or
comprehensive agreement, each responsible governmental entity
described by Section 2267.001(5)(A) must submit copies of detailed
proposals to the Partnership Advisory Commission in accordance with
Chapter 2268.
(i) This chapter and an interim or comprehensive agreement
entered into under this chapter do not enlarge, diminish, or affect
any authority a responsible governmental entity has to take action
that would impact the debt capacity of this state.
Sec. 2267.054. SERVICE CONTRACTS. A responsible
governmental entity may contract with a contracting person for the
delivery of services to be provided as part of a qualifying project
in exchange for service payments and other consideration as the
governmental entity considers appropriate.
Sec. 2267.055. AFFECTED JURISDICTIONS. (a) A person
submitting a proposal to a responsible governmental entity under
Section 2267.053 shall notify each affected jurisdiction by
providing a copy of its proposal to the affected jurisdiction.
(b) Not later than the 60th day after the date an affected
jurisdiction receives the notice required by Subsection (a), the
affected jurisdiction that is not the responsible governmental
entity for the respective qualifying project shall submit in
writing to the responsible governmental entity any comments the
affected jurisdiction has on the proposed qualifying project and
indicate whether the facility or project is compatible with the
local comprehensive plan, local infrastructure development plans,
the capital improvements budget, or other government spending plan.
The responsible governmental entity shall consider the submitted
comments before entering into a comprehensive agreement with a
contracting person.
Sec. 2267.056. DEDICATION AND CONVEYANCE OF PUBLIC
PROPERTY. (a) After obtaining any appraisal of the property
interest that is required under other law in connection with the
conveyance, a governmental entity may dedicate any property
interest, including land, improvements, and tangible personal
property, for public use in a qualifying project if the
governmental entity finds that the dedication will serve the public
purpose of this chapter by minimizing the cost of a qualifying
project to the governmental entity or reducing the delivery time of
a qualifying project.
(b) In connection with a dedication under Subsection (a), a
governmental entity may convey any property interest, including a
license, franchise, easement, or another right or interest the
governmental entity considers appropriate, subject to the
conditions imposed by general law governing such conveyance and
subject to the rights of an existing utility under a license,
franchise, easement, or other right under law, to the contracting
person for the consideration determined by the governmental entity.
The consideration may include the agreement of the contracting
person to develop or operate the qualifying project.
Sec. 2267.057. POWERS AND DUTIES OF CONTRACTING PERSON.
(a) The contracting person has:
(1) the power granted by:
(A) general law to a person that has the same form
of organization as the contracting person; and
(B) a statute governing the business or activity
of the contracting person; and
(2) the power to:
(A) develop or operate the qualifying project;
and
(B) collect lease payments, impose user fees
subject to Subsection (b), or enter into service contracts in
connection with the use of the project.
(b) The contracting person may not impose a user fee or
increase the amount of a user fee until the fee or increase is
approved by the responsible governmental entity.
(c) The contracting person may own, lease, or acquire any
other right to use or operate the qualifying project.
(d) The contracting person may finance a qualifying project
in the amounts and on the terms determined by the contracting
person. The contracting person may issue debt, equity, or other
securities or obligations, enter into sale and leaseback
transactions, and secure any financing with a pledge of, security
interest in, or lien on any or all of its property, including all of
its property interests in the qualifying project.
(e) In operating the qualifying project, the contracting
person may:
(1) establish classifications according to reasonable
categories for assessment of user fees; and
(2) with the consent of the responsible governmental
entity, adopt and enforce reasonable rules for the qualifying
project to the same extent as the responsible governmental entity.
(f) The contracting person shall:
(1) develop or operate the qualifying project in a
manner that is acceptable to the responsible governmental entity
and in accordance with any applicable interim or comprehensive
agreement;
(2) subject to Subsection (g), keep the qualifying
project open for use by the public at all times, or as appropriate
based on the use of the project, after its initial opening on
payment of the applicable user fees, lease payments, or service
payments;
(3) maintain, or provide by contract for the
maintenance or upgrade of, the qualifying project, if required by
any applicable interim or comprehensive agreement;
(4) cooperate with the responsible governmental
entity to establish any interconnection with the qualifying project
requested by the responsible governmental entity; and
(5) comply with any applicable interim or
comprehensive agreement and any lease or service contract.
(g) The qualifying project may be temporarily closed
because of emergencies or, with the consent of the responsible
governmental entity, to protect public safety or for reasonable
construction or maintenance activities.
(h) This chapter does not prohibit a contracting person of a
qualifying project from providing additional services for the
qualifying project to the public or persons other than the
responsible governmental entity, provided that the provision of
additional service does not impair the contracting person's ability
to meet the person's commitments to the responsible governmental
entity under any applicable interim or comprehensive agreement.
Sec. 2267.058. COMPREHENSIVE AGREEMENT. (a) Before
developing or operating the qualifying project, the contracting
person must enter into a comprehensive agreement with a responsible
governmental entity. The comprehensive agreement shall provide
for:
(1) delivery of letters of credit or other security in
connection with the development or operation of the qualifying
project, in the forms and amounts satisfactory to the responsible
governmental entity, and delivery of performance and payment bonds
in compliance with Chapter 2253 for all construction activities;
(2) review of plans and specifications for the
qualifying project by the responsible governmental entity and
approval by the responsible governmental entity if the plans and
specifications conform to standards acceptable to the responsible
governmental entity, except that the contracting person may not be
required to complete the design of a qualifying project before the
execution of a comprehensive agreement;
(3) inspection of the qualifying project by the
responsible governmental entity to ensure that the contracting
person's activities are acceptable to the responsible governmental
entity in accordance with the comprehensive agreement;
(4) maintenance of a public liability insurance
policy, copies of which must be filed with the responsible
governmental entity accompanied by proofs of coverage, or
self-insurance, each in the form and amount satisfactory to the
responsible governmental entity and reasonably sufficient to
ensure coverage of tort liability to the public and project
employees and to enable the continued operation of the qualifying
project;
(5) monitoring of the practices of the contracting
person by the responsible governmental entity to ensure that the
qualifying project is properly maintained;
(6) reimbursement to be paid to the responsible
governmental entity for services provided by the responsible
governmental entity;
(7) filing of appropriate financial statements on a
periodic basis; and
(8) policies and procedures governing the rights and
responsibilities of the responsible governmental entity and the
contracting person if the comprehensive agreement is terminated or
there is a material default by the contracting person, including
conditions governing:
(A) assumption of the duties and
responsibilities of the contracting person by the responsible
governmental entity; and
(B) the transfer or purchase of property or other
interests of the contracting person to the responsible governmental
entity.
(b) The comprehensive agreement shall provide for any user
fee, lease payment, or service payment established by agreement of
the parties. In negotiating a user fee under this section, the
parties shall establish a payment or fee that is the same for
persons using a facility of the qualifying project under like
conditions and that will not materially discourage use of the
qualifying project. The execution of the comprehensive agreement
or an amendment to the agreement is conclusive evidence that the
user fee, lease payment, or service payment complies with this
chapter. A user fee or lease payment established in the
comprehensive agreement as a source of revenue may be in addition
to, or in lieu of, a service payment.
(c) A comprehensive agreement may include a provision that
authorizes the responsible governmental entity to make grants or
loans to the contracting person from money received from the
federal, state, or local government or any agency or
instrumentality of the government.
(d) The comprehensive agreement must incorporate the duties
of the contracting person under this chapter and may contain terms
the responsible governmental entity determines serve the public
purpose of this chapter. The comprehensive agreement may contain:
(1) provisions that require the responsible
governmental entity to provide notice of default and cure rights
for the benefit of the contracting person and the persons specified
in the agreement as providing financing for the qualifying project;
(2) other lawful terms to which the contracting person
and the responsible governmental entity mutually agree, including
provisions regarding unavoidable delays or providing for a loan of
public money to the contracting person to develop or operate one or
more qualifying projects; and
(3) provisions in which the authority and duties of
the contracting person under this chapter cease and the qualifying
project is dedicated for public use to the responsible governmental
entity or, if the qualifying project was initially dedicated by an
affected jurisdiction, to the affected jurisdiction.
(e) Any change in the terms of the comprehensive agreement
that the parties agree to must be added to the comprehensive
agreement by written amendment.
(f) The comprehensive agreement may provide for the
development or operation of phases or segments of the qualifying
project.
Sec. 2267.059. INTERIM AGREEMENT. Before or in connection
with the negotiation of the comprehensive agreement, the
responsible governmental entity may enter into an interim agreement
with the contracting person proposing the development or operation
of the qualifying project. The interim agreement may:
(1) authorize the contracting person to begin project
phases or activities for which the contracting person may be
compensated relating to the proposed qualifying project, including
project planning and development, design, engineering,
environmental analysis and mitigation, surveying, and financial
and revenue analysis, including ascertaining the availability of
financing for the proposed facility or facilities of the qualifying
project;
(2) establish the process and timing of the
negotiation of the comprehensive agreement; and
(3) contain any other provision related to any aspect
of the development or operation of a qualifying project that the
parties consider appropriate.
Sec. 2267.060. FEDERAL, STATE, AND LOCAL ASSISTANCE.
(a) The contracting person and the responsible governmental
entity may use any funding resources that are available to the
parties, including:
(1) accessing any designated trust funds; and
(2) borrowing or accepting grants from any state
infrastructure bank.
(b) The responsible governmental entity may take any action
to obtain federal, state, or local assistance for a qualifying
project that serves the public purpose of this chapter and may enter
into any contracts required to receive the assistance.
(c) If the responsible governmental entity is a state
agency, any money received from the state or federal government or
any agency or instrumentality of the state or federal government is
subject to appropriation by the legislature.
(d) The responsible governmental entity may determine that
it serves the public purpose of this chapter for all or part of the
costs of a qualifying project to be directly or indirectly paid from
the proceeds of a grant or loan made by the local, state, or federal
government or any agency or instrumentality of the government.
Sec. 2267.0605. PERFORMANCE AND PAYMENT BONDS REQUIRED.
(a) The construction, remodel, or repair of a qualifying project
may be performed only after performance and payment bonds for the
construction, remodel, or repair have been executed in compliance
with Chapter 2253 regardless of whether the qualifying project is
on public or private property or is publicly or privately owned.
(b) For purposes of this section, a qualifying project is
considered a public work under Chapter 2253 and the responsible
governmental entity shall assume the obligations and duties of a
governmental entity under that chapter. The obligee under a
performance bond under this section may be a public entity, a
private person, or an entity consisting of both a public entity and
a private person.
Sec. 2267.061. MATERIAL DEFAULT; REMEDIES. (a) If the
contracting person commits a material default, the responsible
governmental entity may assume the responsibilities and duties of
the contracting person of the qualifying project. If the
responsible governmental entity assumes the responsibilities and
duties of the contracting person, the responsible governmental
entity has all the rights, title, and interest in the qualifying
project, subject to any liens on revenue previously granted by the
contracting person to any person providing financing for the
project.
(b) A responsible governmental entity that has the power of
eminent domain under state law may exercise that power to acquire
the qualifying project in the event of a material default by the
contracting person. Any person who has provided financing for the
qualifying project, and the contracting person to the extent of its
capital investment, may participate in the eminent domain
proceedings with the standing of a property owner.
(c) The responsible governmental entity may terminate, with
cause, any applicable interim or comprehensive agreement and
exercise any other rights and remedies available to the
governmental entity at law or in equity.
(d) The responsible governmental entity may make any
appropriate claim under the letters of credit or other security or
the performance and payment bonds required by Section
2267.058(a)(1).
(e) If the responsible governmental entity elects to assume
the responsibilities and duties for a qualifying project under
Subsection (a), the responsible governmental entity may:
(1) develop or operate the qualifying project;
(2) impose user fees;
(3) impose and collect lease payments for the use of
the project; and
(4) comply with any applicable contract to provide
services.
(f) The responsible governmental entity shall collect and
pay to secured parties any revenue subject to a lien to the extent
necessary to satisfy the contracting person's obligations to
secured parties, including the maintenance of reserves. The liens
shall be correspondingly reduced and, when paid off, released.
(g) Before any payment is made to or for the benefit of a
secured party, the responsible governmental entity may use revenue
to pay the current operation and maintenance costs of the
qualifying project, including compensation to the responsible
governmental entity for its services in operating and maintaining
the qualifying project. The right to receive any payment is
considered just compensation for the qualifying project.
(h) The full faith and credit of the responsible
governmental entity may not be pledged to secure any financing of
the contracting person that was assumed by the governmental entity
when the governmental entity assumed responsibility for the
qualifying project.
Sec. 2267.062. EMINENT DOMAIN. (a) At the request of the
contracting person, the responsible governmental entity may
exercise any power of eminent domain that it has under law to
acquire any land or property interest to the extent that the
responsible governmental entity dedicates the land or property
interest to public use and finds that the action serves the public
purpose of this chapter.
(b) Any amounts to be paid in any eminent domain proceeding
shall be paid by the contracting person.
Sec. 2267.063. AFFECTED FACILITY OWNER. (a) The
contracting person and each facility owner, including a public
utility, a public service company, or a cable television provider,
whose facilities will be affected by a qualifying project shall
cooperate fully in planning and arranging the manner in which the
facilities will be affected.
(b) The contracting person and responsible governmental
entity shall ensure that a facility owner whose facility will be
affected by a qualifying project does not suffer a disruption of
service as a result of the construction or improvement of the
qualifying project.
(c) A governmental entity possessing the power of eminent
domain may exercise that power in connection with the relocation of
facilities affected by the qualifying project or facilities that
must be relocated to the extent that the relocation is necessary or
desirable by construction of, renovation to, or improvements to the
qualifying project, which includes construction of, renovation to,
or improvements to temporary facilities to provide service during
the period of construction or improvement. The governmental entity
shall exercise its power of eminent domain to the extent required to
ensure an affected facility owner does not suffer a disruption of
service as a result of the construction or improvement of the
qualifying project during the construction or improvement or after
the qualifying project is completed or improved.
(d) The contracting person shall pay any amount owed for the
crossing, constructing, or relocating of facilities.
Sec. 2267.064. POLICE POWERS; VIOLATIONS OF LAW. A peace
officer of this state or of any affected jurisdiction has the same
powers and jurisdiction within the area of the qualifying project
as the officer has in the officer's area of jurisdiction. The
officer may access the qualifying project at any time to exercise
the officer's powers and jurisdiction.
Sec. 2267.065. PROCUREMENT GUIDELINES. (a) Chapters
2155, 2156, and 2166, any interpretations, rules, or guidelines of
the comptroller and the Texas Facilities Commission, and
interpretations, rules, or guidelines developed under Chapter 2262
do not apply to a qualifying project under this chapter.
(b) A responsible governmental entity may enter into a
comprehensive agreement only in accordance with guidelines that
require the contracting person to design and construct the
qualifying project in accordance with procedures that do not
materially conflict with those specified in:
(1) Section 2166.2531;
(2) Section 44.036, Education Code;
(3) Section 51.780, Education Code;
(4) Section 271.119, Local Government Code; or
(5) Subchapter J, Chapter 271, Local Government Code,
for civil works projects as defined by Section 271.181(2), Local
Government Code.
(c) This chapter does not authorize a responsible
governmental entity or a contracting person to obtain professional
services through any process except in accordance with Subchapter
A, Chapter 2254.
(d) Identified team members, including the architect,
engineer, or builder, may not be substituted or replaced once a
project is approved and an interim or comprehensive agreement is
executed without the written approval of the responsible
governmental entity.
Sec. 2267.066. POSTING OF PROPOSALS; PUBLIC COMMENT; PUBLIC
ACCESS TO PROCUREMENT RECORDS. (a) Not later than the 10th day
after the date a responsible governmental entity accepts a proposal
submitted in accordance with Section 2267.053(a) or (b), the
responsible governmental entity shall provide notice of the
proposal as follows:
(1) for a responsible governmental entity described by
Section 2267.001(5)(A), by posting the proposal on the entity's
Internet website; and
(2) for a responsible governmental entity described by
Section 2267.001(5)(B), by:
(A) posting a copy of the proposal on the
entity's Internet website; or
(B) publishing in a newspaper of general
circulation in the area in which the qualifying project is to be
performed a summary of the proposal and the location where copies of
the proposal are available for public inspection.
(b) The responsible governmental entity shall make
available for public inspection at least one copy of the proposal.
This section does not prohibit the responsible governmental entity
from posting the proposal in another manner considered appropriate
by the responsible governmental entity to provide maximum notice to
the public of the opportunity to inspect the proposal.
(c) Trade secrets, financial records, or other records of
the contracting person excluded from disclosure under Section
552.101 may not be posted or made available for public inspection
except as otherwise agreed to by the responsible governmental
entity and the contracting person.
(d) The responsible governmental entity shall hold a public
hearing on the proposal during the proposal review process not
later than the 30th day before the date the entity enters into an
interim or comprehensive agreement.
(e) On completion of the negotiation phase for the
development of an interim or comprehensive agreement and before an
interim agreement or comprehensive agreement is entered into, a
responsible governmental entity must make available the proposed
agreement in a manner provided by Subsection (a) or (b).
(f) A responsible governmental entity that has entered into
an interim agreement or comprehensive agreement shall make
procurement records available for public inspection on request.
For purposes of this subsection, procurement records do not include
the trade secrets of the contracting person or financial records,
including balance sheets or financial statements of the contracting
person, that are not generally available to the public through
regulatory disclosure or other means.
(g) Cost estimates relating to a proposed procurement
transaction prepared by or for a responsible governmental entity
are not open to public inspection.
(h) Any inspection of procurement transaction records under
this section is subject to reasonable restrictions to ensure the
security and integrity of the records.
(i) This section applies to any accepted proposal
regardless of whether the process of bargaining results in an
interim or comprehensive agreement.
CHAPTER 2268. PARTNERSHIP ADVISORY COMMISSION
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 2268.001. DEFINITIONS. In this chapter:
(1) "Commission" means the Partnership Advisory
Commission.
(2) "Comprehensive agreement" has the meaning
assigned by Section 2267.001.
(3) "Detailed proposal" means a proposal for a
qualifying project accepted by a responsible governmental entity
beyond a conceptual level of review that defines and establishes
periods related to fixing costs, payment schedules, financing,
deliverables, and project schedule.
(4) "Interim agreement" has the meaning assigned by
Section 2267.001.
(5) "Qualifying project" has the meaning assigned by
Section 2267.001.
(6) "Responsible governmental entity" has the meaning
assigned by Section 2267.001.
Sec. 2268.002. APPLICABILITY. This chapter applies only to
responsible governmental entities described by Section
2267.001(5)(A).
[Sections 2268.003-2268.050 reserved for expansion]
SUBCHAPTER B. COMMISSION
Sec. 2268.051. ESTABLISHMENT OF COMMISSION. The
Partnership Advisory Commission is an advisory commission in the
legislative branch that advises responsible governmental entities
described by Section 2267.001(5)(A) on proposals received under
Chapter 2267.
Sec. 2268.052. COMPOSITION AND TERMS. (a) The commission
consists of the following 11 members:
(1) the chair of the House Appropriations Committee or
the chair's designee;
(2) three representatives appointed by the speaker of
the house of representatives;
(3) the chair of the Senate Finance Committee or the
chair's designee;
(4) three senators appointed by the lieutenant
governor; and
(5) three representatives of the executive branch,
appointed by the governor.
(b) The legislative members serve on the commission until
the expiration of their terms of office or until their successors
qualify.
(c) The members appointed by the governor serve at the will
of the governor.
Sec. 2268.053. PRESIDING OFFICER. The members of the
commission shall elect from among the legislative members a
presiding officer and an assistant presiding officer to serve
two-year terms.
Sec. 2268.054. COMPENSATION; REIMBURSEMENT. A member of
the commission is not entitled to compensation for service on the
commission but is entitled to reimbursement for all reasonable and
necessary expenses incurred in performing duties as a member.
Sec. 2268.055. MEETINGS. The commission shall hold
meetings quarterly or on the call of the presiding officer.
Sec. 2268.056. ADMINISTRATIVE, LEGAL, RESEARCH, TECHNICAL,
AND OTHER SUPPORT. (a) The legislative body that the presiding
officer serves shall provide administrative staff support for the
commission.
(b) The Texas Legislative Council shall provide legal,
research, and policy analysis services to the commission.
(c) The staffs of the House Appropriations Committee,
Senate Finance Committee, and comptroller shall provide technical
assistance.
(d) The comptroller or a state agency shall provide
additional assistance as needed.
Sec. 2268.057. COMMISSION PROCEEDINGS. A copy of the
proceedings of the commission shall be filed with the legislative
body that the presiding officer serves.
Sec. 2268.058. SUBMISSION OF DETAILED PROPOSALS FOR
QUALIFYING PROJECTS; EXEMPTION; COMMISSION REVIEW. (a) Before
beginning to negotiate an interim or comprehensive agreement, each
responsible governmental entity receiving a detailed proposal for a
qualifying project must provide copies of the proposal to:
(1) the presiding officer of the commission; and
(2) the chairs of the House Appropriations Committee
and Senate Finance Committee or their designees.
(b) The following qualifying projects are not subject to
review by the commission:
(1) any proposed qualifying project with a total cost
of less than $5 million; and
(2) any proposed qualifying project with a total cost
of more than $5 million but less than $50 million for which money
has been specifically appropriated as a public-private partnership
in the General Appropriations Act.
(c) The commission may undertake additional reviews of any
qualifying project that will be completed in phases and for which an
appropriation has not been made for any phase other than the current
phase of the project.
(d) Not later than the 10th day after the date the
commission receives a complete copy of the detailed proposal for a
qualifying project, the commission shall determine whether to
accept or decline the proposal for review and notify the
responsible governmental entity of the commission's decision.
(e) If the commission accepts a proposal for review, the
commission shall provide its findings and recommendations to the
responsible governmental entity not later than the 45th day after
the date the commission receives complete copies of the detailed
proposal. If the commission does not provide its findings or
recommendations to the responsible governmental entity by that
date, the commission is considered to have declined review of the
proposal and to not have made any findings or recommendations on the
proposal.
(f) The responsible governmental entity on request of the
commission shall provide any additional information regarding a
qualifying project reviewed by the commission if the information is
available to or can be obtained by the responsible governmental
entity.
(g) The commission shall review accepted detailed proposals
and provide findings and recommendations to the responsible
governmental entity that include:
(1) a determination on whether the terms of the
proposal and proposed qualifying project create state
tax-supported debt, taking into consideration the specific
findings of the comptroller with respect to the recommendation;
(2) an analysis of the potential financial impact of
the qualifying project;
(3) a review of the policy aspects of the detailed
proposal and the qualifying project; and
(4) proposed general business terms.
(h) Review by the commission does not constitute approval of
any appropriations necessary to implement a subsequent interim or
comprehensive agreement.
(i) Except as provided by Subsection (e), the responsible
governmental entity may not begin negotiation of an interim or
comprehensive agreement until the commission has submitted its
recommendations or declined to accept the detailed proposals for
review.
(j) Not later than the 30th day before the date a
comprehensive or interim agreement is executed, the responsible
governmental entity shall submit to the commission and the chairs
of the House Appropriations Committee and Senate Finance Committee
or their designees:
(1) a copy of the proposed interim or comprehensive
agreement; and
(2) a report describing the extent to which the
commission's recommendations were addressed in the proposed
interim or comprehensive agreement.
Sec. 2268.059. CONFIDENTIALITY OF CERTAIN RECORDS
SUBMITTED TO COMMISSION. Records and information afforded
protection under Section 552.153 that are provided by a responsible
governmental entity to the commission shall continue to be
protected from disclosure when in the possession of the commission.
SECTION 2. Subchapter C, Chapter 552, Government Code, is
amended by adding Section 552.153 to read as follows:
Sec. 552.153. PROPRIETARY RECORDS AND TRADE SECRETS
INVOLVED IN CERTAIN PARTNERSHIPS. (a) In this section, "affected
jurisdiction," "comprehensive agreement," "contracting person,"
"interim agreement," "qualifying project," and "responsible
governmental entity" have the meanings assigned those terms by
Section 2267.001.
(b) Information in the custody of a responsible
governmental entity that relates to a proposal for a qualifying
project authorized under Chapter 2267 is excepted from the
requirements of Section 552.021 if:
(1) the information consists of memoranda, staff
evaluations, or other records prepared by the responsible
governmental entity, its staff, outside advisors, or consultants
exclusively for the evaluation and negotiation of proposals filed
under Chapter 2267 for which:
(A) disclosure to the public before or after the
execution of an interim or comprehensive agreement would adversely
affect the financial interest or bargaining position of the
responsible governmental entity; and
(B) the basis for the determination under
Paragraph (A) is documented in writing by the responsible
governmental entity; or
(2) the records are provided by a contracting person
to a responsible governmental entity or affected jurisdiction under
Chapter 2267 and contain:
(A) trade secrets of the contracting person;
(B) financial records of the contracting person,
including balance sheets and financial statements, that are not
generally available to the public through regulatory disclosure or
other means; or
(C) other information submitted by the
contracting person that, if made public before the execution of an
interim or comprehensive agreement, would adversely affect the
financial interest or bargaining position of the responsible
governmental entity or the person.
(c) Except as specifically provided by Subsection (b), this
section does not authorize the withholding of information
concerning:
(1) the terms of any interim or comprehensive
agreement, service contract, lease, partnership, or agreement of
any kind entered into by the responsible governmental entity and
the contracting person or the terms of any financing arrangement
that involves the use of any public money; or
(2) the performance of any person developing or
operating a qualifying project under Chapter 2267.
SECTION 3. This Act takes effect September 1, 2011.
______________________________ ______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 1048 passed the Senate on
April 19, 2011, by the following vote: Yeas 30, Nays 1; and that
the Senate concurred in House amendments on May 27, 2011, by the
following vote: Yeas 30, Nays 1.
______________________________
Secretary of the Senate
I hereby certify that S.B. No. 1048 passed the House, with
amendments, on May 25, 2011, by the following vote: Yeas 114,
Nays 28, two present not voting.
______________________________
Chief Clerk of the House
Approved:
______________________________
Date
______________________________
Governor