Texas 2011 - 82nd Regular

Texas House Bill HB2432 Compare Versions

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1	1	82R22624 YDB-F
2	2	By: J. Davis of Harris H.B. No. 2432
3	3	Substitute the following for H.B. No. 2432:
4	4	By: Murphy C.S.H.B. No. 2432
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to the creation of public and private facilities and
10	10	infrastructure.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Subtitle F, Title 10, Government Code, is
13	13	amended by adding Chapters 2267 and 2268 to read as follows:
14	14	CHAPTER 2267. PUBLIC AND PRIVATE FACILITIES AND INFRASTRUCTURE
15	15	SUBCHAPTER A. GENERAL PROVISIONS
16	16	Sec. 2267.001. DEFINITIONS. In this chapter:
17	17	(1) "Affected jurisdiction" means any county or
18	18	municipality in which all or a portion of a qualifying project is
19	19	located.
20	20	(2) "Comprehensive agreement" means the comprehensive
21	21	agreement authorized by Section 2267.058 between the contracting
22	22	person and the responsible governmental entity.
23	23	(3) "Contracting person" means a person who enters
24	24	into a comprehensive or interim agreement with a responsible
25	25	governmental entity under this chapter.
26	26	(4) "Develop" means to plan, design, develop, finance,
27	27	lease, acquire, install, construct, or expand a qualifying project.
28	28	(5) "Governmental entity" means:
29	29	(A) a board, commission, department, or other
30	30	agency of this state, including an institution of higher education
31	31	as defined by Section 61.003, Education Code, that elects to
32	32	operate under this chapter through the adoption of a resolution by
33	33	the institution's board of regents; and
34	34	(B) a political subdivision of this state that
35	35	elects to operate under this chapter by the adoption of a resolution
36	36	by the governing body of the political subdivision.
37	37	(6) "Interim agreement" means an agreement authorized
38	38	by Section 2267.059 between a contracting person and a responsible
39	39	governmental entity that proposes the development or operation of
40	40	the qualifying project.
41	41	(7) "Lease payment" means any form of payment,
42	42	including a land lease, by a governmental entity to the contracting
43	43	person for the use of a qualifying project.
44	44	(8) "Material default" means any default by a
45	45	contracting person in the performance of duties imposed under
46	46	Section 2267.057(f) that jeopardizes adequate service to the public
47	47	from a qualifying project.
48	48	(9) "Operate" means to finance, maintain, improve,
49	49	equip, modify, repair, or operate a qualifying project.
50	50	(10) "Qualifying project" means:
51	51	(A) any ferry, mass transit facility, vehicle
52	52	parking facility, port facility, power generation facility, fuel
53	53	supply facility, oil or gas pipeline, water supply facility, public
54	54	work, waste treatment facility, hospital, school, medical or
55	55	nursing care facility, recreational facility, public building, or
56	56	other similar facility currently available or to be made available
57	57	to a governmental entity for public use, including any structure,
58	58	parking area, appurtenance, and other property required to operate
59	59	the structure or facility and any technology infrastructure
60	60	installed in the structure or facility that is essential to the
61	61	project's purpose; or
62	62	(B) any improvements necessary or desirable to
63	63	unimproved real estate owned by a governmental entity.
64	64	(11) "Responsible governmental entity" means a
65	65	governmental entity that has the power to develop or operate an
66	66	applicable qualifying project.
67	67	(12) "Revenue" means all revenue, income, earnings,
68	68	user fees, lease payments, or other service payments that support
69	69	the development or operation of a qualifying project, including
70	70	money received as a grant or otherwise from the federal government,
71	71	a governmental entity, or any agency or instrumentality of the
72	72	federal government or governmental entity in aid of the project.
73	73	(13) "Service contract" means a contract between a
74	74	governmental entity and a contracting person under Section
75	75	2267.054.
76	76	(14) "Service payment" means a payment to a
77	77	contracting person of a qualifying project under a service
78	78	contract.
79	79	(15) "User fee" means a rate, fee, or other charge
80	80	imposed by a contracting person for the use of all or part of a
81	81	qualifying project under a comprehensive agreement.
82	82	Sec. 2267.002. DECLARATION OF PUBLIC PURPOSE; CONSTRUCTION
83	83	OF CHAPTER. (a) The legislature finds that:
84	84	(1) there is a public need for timely acquisition,
85	85	design, construction, improvement, renovation, expansion,
86	86	equipping, maintenance, operation, implementation, and
87	87	installation of education facilities, technology and other public
88	88	infrastructure, and government facilities in this state that serve
89	89	a public need and purpose;
90	90	(2) the public need may not be wholly satisfied by
91	91	existing methods of procurement in which qualifying projects are
92	92	acquired, designed, constructed, improved, renovated, expanded,
93	93	equipped, maintained, operated, implemented, or installed;
94	94	(3) there are inadequate resources to develop new
95	95	education facilities, technology and other public infrastructure,
96	96	and government facilities for the benefit of the citizens of this
97	97	state, and there is demonstrated evidence that partnerships between
98	98	public entities and private entities or other persons can meet
99	99	these needs by improving the schedule for delivery, lowering the
100	100	cost, and providing other benefits to the public;
101	101	(4) financial incentives exist under state and federal
102	102	tax provisions that encourage public entities to enter into
103	103	partnerships with private entities or other persons to develop
104	104	qualifying projects; and
105	105	(5) authorizing private entities or other persons to
106	106	develop or operate one or more qualifying projects may serve the
107	107	public safety, benefit, and welfare by making the projects
108	108	available to the public in a more timely or less costly fashion.
109	109	(b) An action authorized under Section 2267.053 serves the
110	110	public purpose of this chapter if the action facilitates the timely
111	111	development or operation of a qualifying project.
112	112	(c) The purposes of this chapter include:
113	113	(1) encouraging investment in this state by private
114	114	entities and other persons;
115	115	(2) facilitating bond financing or other similar
116	116	financing mechanisms, private capital, and other funding sources
117	117	that support the development or operation of qualifying projects in
118	118	order to expand and accelerate financing for qualifying projects
119	119	that improve and add to the convenience of the public; and
120	120	(3) providing governmental entities with the greatest
121	121	possible flexibility in contracting with private entities or other
122	122	persons to provide public services through qualifying projects
123	123	subject to this chapter.
124	124	(d) This chapter shall be liberally construed in conformity
125	125	with the purposes of this section.
126	126	(e) The procedures in this chapter are not exclusive. This
127	127	chapter does not prohibit a responsible governmental entity from
128	128	entering into an agreement for or procuring public and private
129	129	facilities and infrastructure under other authority.
130	130	Sec. 2267.003. APPLICABILITY. This chapter does not apply
131	131	to:
132	132	(1) the financing, design, construction, maintenance,
133	133	or operation of a highway in the state highway system;
134	134	(2) a transportation authority created under Chapter
135	135	451, 452, 453, or 460, Transportation Code; or
136	136	(3) any telecommunications, cable television, video
137	137	service, or broadband infrastructure other than technology
138	138	installed as part of a qualifying project that is essential to the
139	139	project.
140	140	Sec. 2267.004. APPLICABILITY OF EMINENT DOMAIN LAW. This
141	141	chapter does not alter the eminent domain laws of this state or
142	142	grant the power of eminent domain to any person who is not expressly
143	143	granted that power under other state law.
144	144	[Sections 2267.005-2267.050 reserved for expansion]
145	145	SUBCHAPTER B. QUALIFYING PROJECTS
146	146	Sec. 2267.051. APPROVAL REQUIRED; SUBMISSION OF PROPOSAL
147	147	FOR QUALIFYING PROJECT. (a) A person may not develop or operate a
148	148	qualifying project unless the person obtains the approval of and
149	149	contracts with the responsible governmental entity under this
150	150	chapter. The person may initiate the approval process by
151	151	submitting a proposal requesting approval under Section
152	152	2267.053(a), or the responsible governmental entity may request
153	153	proposals or invite bids under Section 2267.053(b).
154	154	(b) A person submitting a proposal requesting approval of a
155	155	qualifying project shall specifically and conceptually identify
156	156	any facility, building, infrastructure, or improvement included in
157	157	the proposal as a part of the qualifying project.
158	158	(c) On receipt of a proposal submitted by a person
159	159	initiating the approval process under Section 2267.053(a), the
160	160	responsible governmental entity shall determine whether to accept
161	161	the proposal for consideration in accordance with Sections 2267.052
162	162	and 2267.065 and the guidelines adopted under those sections. A
163	163	responsible governmental entity that determines not to accept the
164	164	proposal for consideration shall return the proposal, all fees, and
165	165	the accompanying documentation to the person submitting the
166	166	proposal.
167	167	(d) The responsible governmental entity may at any time
168	168	reject a proposal initiated by a person under Section 2267.053(a).
169	169	Sec. 2267.052. ADOPTION OF GUIDELINES BY RESPONSIBLE
170	170	GOVERNMENTAL ENTITIES. (a) Before requesting or considering a
171	171	proposal for a qualifying project, a responsible governmental
172	172	entity must adopt and make publicly available guidelines that
173	173	enable the governmental entity to comply with this chapter. The
174	174	guidelines must be reasonable, encourage competition, and guide the
175	175	selection of projects under the purview of the responsible
176	176	governmental entity.
177	177	(b) The guidelines for a responsible governmental entity
178	178	described by Section 2267.001(5)(A) must:
179	179	(1) require the responsible governmental entity to:
180	180	(A) make a representative of the entity available
181	181	to meet with persons who are considering submitting a proposal; and
182	182	(B) provide notice of the representative's
183	183	availability;
184	184	(2) provide reasonable criteria for choosing among
185	185	competing proposals;
186	186	(3) contain suggested timelines for selecting
187	187	proposals and negotiating an interim or comprehensive agreement;
188	188	(4) allow the responsible governmental entity to
189	189	accelerate the selection, review, and documentation timelines for
190	190	proposals involving a qualifying project considered a priority by
191	191	the entity;
192	192	(5) include financial review and analysis procedures
193	193	that at a minimum consist of:
194	194	(A) a cost-benefit analysis;
195	195	(B) an assessment of opportunity cost;
196	196	(C) consideration of the degree to which
197	197	functionality and services similar to the functionality and
198	198	services to be provided by the proposed project are already
199	199	available in the private market; and
200	200	(D) consideration of the results of all studies
201	201	and analyses related to the proposed qualifying project;
202	202	(6) allow the responsible governmental entity to
203	203	consider the nonfinancial benefits of a proposed qualifying
204	204	project;
205	205	(7) include criteria for:
206	206	(A) the qualifying project, including the scope,
207	207	costs, and duration of the project and the involvement or impact of
208	208	the project on multiple public entities;
209	209	(B) the creation of and the responsibilities of
210	210	an oversight committee, with members representing the responsible
211	211	governmental entity, that acts as an advisory committee to review
212	212	the terms of any proposed interim or comprehensive agreement; and
213	213	(C) compliance with the requirements of Chapter
214	214	2268;
215	215	(8) require the responsible governmental entity to
216	216	analyze the adequacy of the information to be released by the entity
217	217	when seeking competing proposals and require that the entity
218	218	provide more detailed information, if the entity determines
219	219	necessary, to encourage competition, subject to Section
220	220	2267.053(g);
221	221	(9) establish criteria, key decision points, and
222	222	approvals required to ensure that the responsible governmental
223	223	entity considers the extent of competition before selecting
224	224	proposals and negotiating an interim or comprehensive agreement;
225	225	and
226	226	(10) require the posting and publishing of public
227	227	notice of a proposal requesting approval of a qualifying project,
228	228	including:
229	229	(A) specific information and documentation
230	230	regarding the nature, timing, and scope of the qualifying project,
231	231	as required under Section 2267.053(a);
232	232	(B) a reasonable period of not less than 45 days,
233	233	as determined by the responsible governmental entity, to encourage
234	234	competition and partnerships with private entities and other
235	235	persons in accordance with the goals of this chapter, during which
236	236	the responsible governmental entity must accept submission of
237	237	competing proposals for the qualifying project; and
238	238	(C) a requirement for advertising the notice on
239	239	the governmental entity's Internet website and on TexasOnline or
240	240	the state's official Internet website.
241	241	(c) The guidelines of a responsible governmental entity
242	242	described by Section 2267.001(5)(B):
243	243	(1) may include the provisions required under
244	244	Subsection (b); and
245	245	(2) must include a requirement that the governmental
246	246	entity engage the services of qualified professionals, including an
247	247	architect, professional engineer, or certified public accountant,
248	248	not otherwise employed by the governmental entity, to provide
249	249	independent analyses regarding the specifics, advantages,
250	250	disadvantages, and long-term and short-term costs of any proposal
251	251	requesting approval of a qualifying project unless the governing
252	252	body of the governmental entity determines that the analysis of the
253	253	proposal is to be performed by employees of the governmental
254	254	entity.
255	255	Sec. 2267.053. APPROVAL OF QUALIFYING PROJECTS BY
256	256	RESPONSIBLE GOVERNMENTAL ENTITY. (a) A private entity or other
257	257	person may submit a proposal requesting approval of a qualifying
258	258	project by the responsible governmental entity. The proposal must
259	259	be accompanied by the following, unless waived by the responsible
260	260	governmental entity:
261	261	(1) a topographic map, with a 1:2,000 or other
262	262	appropriate scale, indicating the location of the qualifying
263	263	project;
264	264	(2) a description of the qualifying project,
265	265	including:
266	266	(A) the conceptual design of any facility or a
267	267	conceptual plan for the provision of services or technology
268	268	infrastructure; and
269	269	(B) a schedule for the initiation of and
270	270	completion of the qualifying project that includes the proposed
271	271	major responsibilities and timeline for activities to be performed
272	272	by the governmental entity and the person;
273	273	(3) a statement of the method the person proposes for
274	274	securing necessary property interests required for the qualifying
275	275	project;
276	276	(4) information relating to any current plans for the
277	277	development of facilities or technology infrastructure to be used
278	278	by a governmental entity that are similar to the qualifying project
279	279	being proposed by the person for each affected jurisdiction;
280	280	(5) a list of all permits and approvals required for
281	281	the development and completion of the qualifying project from
282	282	local, state, or federal agencies and a projected schedule for
283	283	obtaining the permits and approvals;
284	284	(6) a list of any facilities that will be affected by
285	285	the qualifying project and a statement of the person's plans to
286	286	accommodate the affected facilities;
287	287	(7) a statement on the person's general plans for
288	288	financing the qualifying project, including the sources of the
289	289	person's funds and identification of any dedicated revenue source
290	290	or proposed debt or equity investment for the person;
291	291	(8) the name and address of each individual who may be
292	292	contacted for further information concerning the request;
293	293	(9) user fees, lease payments, and other service
294	294	payments over the term of any applicable interim or comprehensive
295	295	agreement and the methodology and circumstances for changes to the
296	296	user fees, lease payments, and other service payments over time;
297	297	and
298	298	(10) any additional material and information the
299	299	responsible governmental entity reasonably requests.
300	300	(b) A responsible governmental entity may request proposals
301	301	or invite bids from persons for the development or operation of a
302	302	qualifying project. A responsible governmental entity shall
303	303	consider the total project cost as one factor in evaluating the
304	304	proposals received, but is not required to select the proposal that
305	305	offers the lowest total project cost. The responsible governmental
306	306	entity may consider the following factors:
307	307	(1) the proposed cost of the qualifying project;
308	308	(2) the general reputation, industry experience, and
309	309	financial capacity of the person submitting a proposal;
310	310	(3) the proposed design of the qualifying project;
311	311	(4) the eligibility of the project for accelerated
312	312	selection, review, and documentation timelines under the
313	313	responsible governmental entity's guidelines;
314	314	(5) comments from local citizens and affected
315	315	jurisdictions;
316	316	(6) benefits to the public;
317	317	(7) the person's good faith effort to comply with the
318	318	goals of a historically underutilized business plan;
319	319	(8) the person's plans to employ local contractors and
320	320	residents;
321	321	(9) for a qualifying project that involves a
322	322	continuing role beyond design and construction, the person's
323	323	proposed rate of return and opportunities for revenue sharing; and
324	324	(10) other criteria that the responsible governmental
325	325	entity considers appropriate.
326	326	(c) The responsible governmental entity may approve as a
327	327	qualifying project the development or operation of a facility
328	328	needed by the governmental entity, or the design or equipping of a
329	329	qualifying project, if the responsible governmental entity
330	330	determines that the project serves the public purpose of this
331	331	chapter. The responsible governmental entity may determine that
332	332	the development or operation of the project as a qualifying project
333	333	serves the public purpose if:
334	334	(1) there is a public need for or benefit derived from
335	335	the project of the type the person proposes as a qualifying project;
336	336	(2) the estimated cost of the project is reasonable in
337	337	relation to similar facilities; and
338	338	(3) the person's plans will result in the timely
339	339	development or operation of the qualifying project.
340	340	(d) The responsible governmental entity may charge a
341	341	reasonable fee to cover the costs of processing, reviewing, and
342	342	evaluating the proposal, including reasonable legal fees and fees
343	343	for financial, technical, and other necessary advisors or
344	344	consultants.
345	345	(e) The approval of a responsible governmental entity
346	346	described by Section 2267.001(5)(A) is subject to the private
347	347	entity or other person entering into an interim or comprehensive
348	348	agreement with the responsible governmental entity.
349	349	(f) On approval of the qualifying project, the responsible
350	350	governmental entity shall establish a date by which activities
351	351	related to the qualifying project must begin. The responsible
352	352	governmental entity may extend the date.
353	353	(g) The responsible governmental entity shall take action
354	354	appropriate under Section 552.153 to protect confidential and
355	355	proprietary information provided by the contracting person under an
356	356	agreement.
357	357	(h) Before entering into the negotiation of an interim or
358	358	comprehensive agreement, each responsible governmental entity
359	359	described by Section 2267.001(5)(A) must submit copies of detailed
360	360	proposals to the Partnership Advisory Commission in accordance with
361	361	Chapter 2268.
362	362	(i) This chapter and an interim or comprehensive agreement
363	363	entered into under this chapter do not enlarge, diminish, or affect
364	364	any authority a responsible governmental entity has to take action
365	365	that would impact the debt capacity of this state.
366	366	Sec. 2267.054. SERVICE CONTRACTS. A responsible
367	367	governmental entity may contract with a contracting person for the
368	368	delivery of services to be provided as part of a qualifying project
369	369	in exchange for service payments and other consideration as the
370	370	governmental entity considers appropriate.
371	371	Sec. 2267.055. AFFECTED JURISDICTIONS. (a) A person
372	372	submitting a proposal to a responsible governmental entity under
373	373	Section 2267.053 shall notify each affected jurisdiction by
374	374	providing a copy of its proposal to the affected jurisdiction.
375	375	(b) Not later than the 60th day after the date an affected
376	376	jurisdiction receives the notice required by Subsection (a), the
377	377	affected jurisdiction that is not the responsible governmental
378	378	entity for the respective qualifying project shall submit in
379	379	writing to the responsible governmental entity any comments the
380	380	affected jurisdiction has on the proposed qualifying project and
381	381	indicate whether the facility or project is compatible with the
382	382	local comprehensive plan, local infrastructure development plans,
383	383	the capital improvements budget, or other government spending plan.
384	384	The responsible governmental entity shall consider the submitted
385	385	comments before entering into a comprehensive agreement with a
386	386	contracting person.
387	387	Sec. 2267.056. DEDICATION AND CONVEYANCE OF PUBLIC
388	388	PROPERTY. (a) After obtaining any appraisal of the property
389	389	interest that is required under other law in connection with the
390	390	conveyance, a governmental entity may dedicate any property
391	391	interest, including land, improvements, and tangible personal
392	392	property, for public use in a qualifying project if the
393	393	governmental entity finds that the dedication will serve the public
394	394	purpose of this chapter by minimizing the cost of a qualifying
395	395	project to the governmental entity or reducing the delivery time of
396	396	a qualifying project.
397	397	(b) In connection with a dedication under Subsection (a), a
398	398	governmental entity may convey any property interest, including a
399	399	license, franchise, easement, or another right or interest the
400	400	governmental entity considers appropriate, subject to the
401	401	conditions imposed by general law governing such conveyance and
402	402	subject to the rights of an existing utility under a license,
403	403	franchise, easement, or other right under law, to the contracting
404	404	person for the consideration determined by the governmental entity.
405	405	The consideration may include the agreement of the contracting
406	406	person to develop or operate the qualifying project.
407	407	Sec. 2267.057. POWERS AND DUTIES OF CONTRACTING PERSON.
408	408	(a) The contracting person has:
409	409	(1) the power granted by:
410	410	(A) general law to a person that has the same form
411	411	of organization as the contracting person; and
412	412	(B) a statute governing the business or activity
413	413	of the contracting person; and
414	414	(2) the power to:
415	415	(A) develop or operate the qualifying project;
416	416	and
417	417	(B) collect lease payments, impose user fees
418	418	subject to Subsection (b), or enter into service contracts in
419	419	connection with the use of the project.
420	420	(b) The contracting person may not impose a user fee or
421	421	increase the amount of a user fee until the fee or increase is
422	422	approved by the responsible governmental entity.
423	423	(c) The contracting person may own, lease, or acquire any
424	424	other right to use or operate the qualifying project.
425	425	(d) The contracting person may finance a qualifying project
426	426	in the amounts and on the terms determined by the contracting
427	427	person. The contracting person may issue debt, equity, or other
428	428	securities or obligations, enter into sale and leaseback
429	429	transactions, and secure any financing with a pledge of, security
430	430	interest in, or lien on any or all of its property, including all of
431	431	its property interests in the qualifying project.
432	432	(e) In operating the qualifying project, the contracting
433	433	person may:
434	434	(1) establish classifications according to reasonable
435	435	categories for assessment of user fees; and
436	436	(2) with the consent of the responsible governmental
437	437	entity, adopt and enforce reasonable rules for the qualifying
438	438	project to the same extent as the responsible governmental entity.
439	439	(f) The contracting person shall:
440	440	(1) develop or operate the qualifying project in a
441	441	manner that is acceptable to the responsible governmental entity
442	442	and in accordance with any applicable interim or comprehensive
443	443	agreement;
444	444	(2) subject to Subsection (g), keep the qualifying
445	445	project open for use by the public at all times, or as appropriate
446	446	based on the use of the project, after its initial opening on
447	447	payment of the applicable user fees, lease payments, or service
448	448	payments;
449	449	(3) maintain, or provide by contract for the
450	450	maintenance or upgrade of, the qualifying project, if required by
451	451	any applicable interim or comprehensive agreement;
452	452	(4) cooperate with the responsible governmental
453	453	entity to establish any interconnection with the qualifying project
454	454	requested by the responsible governmental entity; and
455	455	(5) comply with any applicable interim or
456	456	comprehensive agreement and any lease or service contract.
457	457	(g) The qualifying project may be temporarily closed
458	458	because of emergencies or, with the consent of the responsible
459	459	governmental entity, to protect public safety or for reasonable
460	460	construction or maintenance activities.
461	461	(h) This chapter does not prohibit a contracting person of a
462	462	qualifying project from providing additional services for the
463	463	qualifying project to the public or persons other than the
464	464	responsible governmental entity, provided that the provision of
465	465	additional service does not impair the contracting person's ability
466	466	to meet the person's commitments to the responsible governmental
467	467	entity under any applicable interim or comprehensive agreement.
468	468	Sec. 2267.058. COMPREHENSIVE AGREEMENT. (a) Before
469	469	developing or operating the qualifying project, the contracting
470	470	person must enter into a comprehensive agreement with a responsible
471	471	governmental entity. The comprehensive agreement shall provide
472	472	for:
473	473	(1) delivery of letters of credit or other security in
474	474	connection with the development or operation of the qualifying
475	475	project, in the forms and amounts satisfactory to the responsible
476	476	governmental entity, and delivery of performance and payment bonds
477	477	in compliance with Chapter 2253 for all construction activities;
478	478	(2) review of plans and specifications for the
479	479	qualifying project by the responsible governmental entity and
480	480	approval by the responsible governmental entity if the plans and
481	481	specifications conform to standards acceptable to the responsible
482	482	governmental entity, except that the contracting person may not be
483	483	required to complete the design of a qualifying project before the
484	484	execution of a comprehensive agreement;
485	485	(3) inspection of the qualifying project by the
486	486	responsible governmental entity to ensure that the contracting
487	487	person's activities are acceptable to the responsible governmental
488	488	entity in accordance with the comprehensive agreement;
489	489	(4) maintenance of a public liability insurance
490	490	policy, copies of which must be filed with the responsible
491	491	governmental entity accompanied by proofs of coverage, or
492	492	self-insurance, each in the form and amount satisfactory to the
493	493	responsible governmental entity and reasonably sufficient to
494	494	ensure coverage of tort liability to the public and project
495	495	employees and to enable the continued operation of the qualifying
496	496	project;
497	497	(5) monitoring of the practices of the contracting
498	498	person by the responsible governmental entity to ensure that the
499	499	qualifying project is properly maintained;
500	500	(6) reimbursement to be paid to the responsible
501	501	governmental entity for services provided by the responsible
502	502	governmental entity;
503	503	(7) filing of appropriate financial statements on a
504	504	periodic basis; and
505	505	(8) policies and procedures governing the rights and
506	506	responsibilities of the responsible governmental entity and the
507	507	contracting person if the comprehensive agreement is terminated or
508	508	there is a material default by the contracting person, including
509	509	conditions governing:
510	510	(A) assumption of the duties and
511	511	responsibilities of the contracting person by the responsible
512	512	governmental entity; and
513	513	(B) the transfer or purchase of property or other
514	514	interests of the contracting person to the responsible governmental
515	515	entity.
516	516	(b) The comprehensive agreement shall provide for any user
517	517	fee, lease payment, or service payment established by agreement of
518	518	the parties. In negotiating a user fee under this section, the
519	519	parties shall establish a payment or fee that is the same for
520	520	persons using a facility of the qualifying project under like
521	521	conditions and that will not materially discourage use of the
522	522	qualifying project. The execution of the comprehensive agreement
523	523	or an amendment to the agreement is conclusive evidence that the
524	524	user fee, lease payment, or service payment complies with this
525	525	chapter. A user fee or lease payment established in the
526	526	comprehensive agreement as a source of revenue may be in addition
527	527	to, or in lieu of, a service payment.
528	528	(c) A comprehensive agreement may include a provision that
529	529	authorizes the responsible governmental entity to make grants or
530	530	loans to the contracting person from money received from the
531	531	federal, state, or local government or any agency or
532	532	instrumentality of the government.
533	533	(d) The comprehensive agreement must incorporate the duties
534	534	of the contracting person under this chapter and may contain terms
535	535	the responsible governmental entity determines serve the public
536	536	purpose of this chapter. The comprehensive agreement may contain:
537	537	(1) provisions that require the responsible
538	538	governmental entity to provide notice of default and cure rights
539	539	for the benefit of the contracting person and the persons specified
540	540	in the agreement as providing financing for the qualifying project;
541	541	(2) other lawful terms to which the contracting person
542	542	and the responsible governmental entity mutually agree, including
543	543	provisions regarding unavoidable delays or providing for a loan of
544	544	public money to the contracting person to develop or operate one or
545	545	more qualifying projects; and
546	546	(3) provisions in which the authority and duties of
547	547	the contracting person under this chapter cease and the qualifying
548	548	project is dedicated for public use to the responsible governmental
549	549	entity or, if the qualifying project was initially dedicated by an
550	550	affected jurisdiction, to the affected jurisdiction.
551	551	(e) Any change in the terms of the comprehensive agreement
552	552	that the parties agree to must be added to the comprehensive
553	553	agreement by written amendment.
554	554	(f) The comprehensive agreement may provide for the
555	555	development or operation of phases or segments of the qualifying
556	556	project.
557	557	Sec. 2267.059. INTERIM AGREEMENT. Before or in connection
558	558	with the negotiation of the comprehensive agreement, the
559	559	responsible governmental entity may enter into an interim agreement
560	560	with the contracting person proposing the development or operation
561	561	of the qualifying project. The interim agreement may:
562	562	(1) authorize the contracting person to begin project
563	563	phases or activities for which the contracting person may be
564	564	compensated relating to the proposed qualifying project, including
565	565	project planning and development, design, engineering,
566	566	environmental analysis and mitigation, surveying, and financial
567	567	and revenue analysis, including ascertaining the availability of
568	568	financing for the proposed facility or facilities of the qualifying
569	569	project;
570	570	(2) establish the process and timing of the
571	571	negotiation of the comprehensive agreement; and
572	572	(3) contain any other provision related to any aspect
573	573	of the development or operation of a qualifying project that the
574	574	parties consider appropriate.
575	575	Sec. 2267.060. FEDERAL, STATE, AND LOCAL ASSISTANCE.
576	576	(a) The contracting person and the responsible governmental
577	577	entity may use any funding resources that are available to the
578	578	parties, including:
579	579	(1) accessing any designated trust funds; and
580	580	(2) borrowing or accepting grants from any state
581	581	infrastructure bank.
582	582	(b) The responsible governmental entity may take any action
583	583	to obtain federal, state, or local assistance for a qualifying
584	584	project that serves the public purpose of this chapter and may enter
585	585	into any contracts required to receive the assistance.
586	586	(c) If the responsible governmental entity is a state
587	587	agency, any money received from the state or federal government or
588	588	any agency or instrumentality of the state or federal government is
589	589	subject to appropriation by the legislature.
590	590	(d) The responsible governmental entity may determine that
591	591	it serves the public purpose of this chapter for all or part of the
592	592	costs of a qualifying project to be directly or indirectly paid from
593	593	the proceeds of a grant or loan made by the local, state, or federal
594	594	government or any agency or instrumentality of the government.
595	595	Sec. 2267.061. MATERIAL DEFAULT; REMEDIES. (a) If the
596	596	contracting person commits a material default, the responsible
597	597	governmental entity may assume the responsibilities and duties of
598	598	the contracting person of the qualifying project. If the
599	599	responsible governmental entity assumes the responsibilities and
600	600	duties of the contracting person, the responsible governmental
601	601	entity has all the rights, title, and interest in the qualifying
602	602	project, subject to any liens on revenue previously granted by the
603	603	contracting person to any person providing financing for the
604	604	project.
605	605	(b) A responsible governmental entity that has the power of
606	606	eminent domain under state law may exercise that power to acquire
607	607	the qualifying project in the event of a material default by the
608	608	contracting person. Any person who has provided financing for the
609	609	qualifying project, and the contracting person to the extent of its
610	610	capital investment, may participate in the eminent domain
611	611	proceedings with the standing of a property owner.
612	612	(c) The responsible governmental entity may terminate, with
613	613	cause, any applicable interim or comprehensive agreement and
614	614	exercise any other rights and remedies available to the
615	615	governmental entity at law or in equity.
616	616	(d) The responsible governmental entity may make any
617	617	appropriate claim under the letters of credit or other security or
618	618	the performance and payment bonds required by Section
619	619	2267.058(a)(1).
620	620	(e) If the responsible governmental entity elects to assume
621	621	the responsibilities and duties for a qualifying project under
622	622	Subsection (a), the responsible governmental entity may:
623	623	(1) develop or operate the qualifying project;
624	624	(2) impose user fees;
625	625	(3) impose and collect lease payments for the use of
626	626	the project; and
627	627	(4) comply with any applicable contract to provide
628	628	services.
629	629	(f) The responsible governmental entity shall collect and
630	630	pay to secured parties any revenue subject to a lien to the extent
631	631	necessary to satisfy the contracting person's obligations to
632	632	secured parties, including the maintenance of reserves. The liens
633	633	shall be correspondingly reduced and, when paid off, released.
634	634	(g) Before any payment is made to or for the benefit of a
635	635	secured party, the responsible governmental entity may use revenue
636	636	to pay the current operation and maintenance costs of the
637	637	qualifying project, including compensation to the responsible
638	638	governmental entity for its services in operating and maintaining
639	639	the qualifying project. The right to receive any payment is
640	640	considered just compensation for the qualifying project.
641	641	(h) The full faith and credit of the responsible
642	642	governmental entity may not be pledged to secure any financing of
643	643	the contracting person that was assumed by the governmental entity
644	644	when the governmental entity assumed responsibility for the
645	645	qualifying project.
646	646	Sec. 2267.062. EMINENT DOMAIN. (a) At the request of the
647	647	contracting person, the responsible governmental entity may
648	648	exercise any power of eminent domain that it has under law to
649	649	acquire any land or property interest to the extent that the
650	650	responsible governmental entity dedicates the land or property
651	651	interest to public use and finds that the action serves the public
652	652	purpose of this chapter.
653	653	(b) Any amounts to be paid in any eminent domain proceeding
654	654	shall be paid by the contracting person.
655	655	Sec. 2267.063. AFFECTED FACILITY OWNER. (a) The
656	656	contracting person and each facility owner, including a public
657	657	utility, a public service company, or a cable television provider,
658	658	whose facilities will be affected by a qualifying project shall
659	659	cooperate fully in planning and arranging the manner in which the
660	660	facilities will be affected.
661	661	(b) The contracting person and responsible governmental
662	662	entity shall ensure that a facility owner whose facility will be
663	663	affected by a qualifying project does not suffer a disruption of
664	664	service as a result of the construction or improvement of the
665	665	qualifying project.
666	666	(c) A governmental entity possessing the power of eminent
667	667	domain may exercise that power in connection with the relocation of
668	668	facilities affected by the qualifying project or facilities that
669	669	must be relocated to the extent that the relocation is necessary or
670	670	desirable by construction of, renovation to, or improvements to the
671	671	qualifying project, which includes construction of, renovation to,
672	672	or improvements to temporary facilities to provide service during
673	673	the period of construction or improvement. The governmental entity
674	674	shall exercise its power of eminent domain to the extent required to
675	675	ensure an affected facility owner does not suffer a disruption of
676	676	service as a result of the construction or improvement of the
677	677	qualifying project during the construction or improvement or after
678	678	the qualifying project is completed or improved.
679	679	(d) The contracting person shall pay any amount owed for the
680	680	crossing, constructing, or relocating of facilities.
681	681	Sec. 2267.064. POLICE POWERS; VIOLATIONS OF LAW. A peace
682	682	officer of this state or of any affected jurisdiction has the same
683	683	powers and jurisdiction within the area of the qualifying project
684	684	as the officer has in the officer's area of jurisdiction. The
685	685	officer may access the qualifying project at any time to exercise
686	686	the officer's powers and jurisdiction.
687	687	Sec. 2267.065. PROCUREMENT GUIDELINES. (a) Chapters
688	688	2155, 2156, and 2166, any interpretations, rules, or guidelines of
689	689	the comptroller and the Texas Facilities Commission, and
690	690	interpretations, rules, or guidelines developed under Chapter 2262
691	691	do not apply to a qualifying project under this chapter.
692	692	(b) A responsible governmental entity may enter into a
693	693	comprehensive agreement only in accordance with guidelines that
694	694	require the contracting person to design and construct the
695	695	qualifying project in accordance with procedures that do not
696	696	materially conflict with those specified in:
697	697	(1) Section 2166.2531;
698	698	(2) Section 44.036, Education Code;
699	699	(3) Section 271.119, Local Government Code; or
700	700	(4) Subchapter J, Chapter 271, Local Government Code,
701	701	for civil works projects as defined by Section 271.181(2), Local
702	702	Government Code.
703	703	(c) This chapter does not authorize a responsible
704	704	governmental entity or a contracting person to obtain professional
705	705	services through any process except in accordance with Subchapter
706	706	A, Chapter 2254.
707	707	(d) Identified team members, including the architect,
708	708	engineer, or builder, may not be substituted or replaced once a
709	709	project is approved and an interim or comprehensive agreement is
710	710	executed without the written approval of the responsible
711	711	governmental entity.
712	712	Sec. 2267.066. POSTING OF PROPOSALS; PUBLIC COMMENT; PUBLIC
713	713	ACCESS TO PROCUREMENT RECORDS. (a) Not later than the 10th day
714	714	after the date a responsible governmental entity accepts a proposal
715	715	submitted in accordance with Section 2267.053(a) or (b), the
716	716	responsible governmental entity shall provide notice of the
717	717	proposal as follows:
718	718	(1) for a responsible governmental entity described by
719	719	Section 2267.001(5)(A), by posting the proposal on the entity's
720	720	Internet website; and
721	721	(2) for a responsible governmental entity described by
722	722	Section 2267.001(5)(B), by:
723	723	(A) posting a copy of the proposal on the
724	724	entity's Internet website; or
725	725	(B) publishing in a newspaper of general
726	726	circulation in the area in which the qualifying project is to be
727	727	performed a summary of the proposal and the location where copies of
728	728	the proposal are available for public inspection.
729	729	(b) The responsible governmental entity shall make
730	730	available for public inspection at least one copy of the proposal.
731	731	This section does not prohibit the responsible governmental entity
732	732	from posting the proposal in another manner considered appropriate
733	733	by the responsible governmental entity to provide maximum notice to
734	734	the public of the opportunity to inspect the proposal.
735	735	(c) Trade secrets, financial records, or other records of
736	736	the contracting person excluded from disclosure under Section
737	737	552.101 may not be posted or made available for public inspection
738	738	except as otherwise agreed to by the responsible governmental
739	739	entity and the contracting person.
740	740	(d) The responsible governmental entity shall hold a public
741	741	hearing on the proposal during the proposal review process not
742	742	later than the 30th day before the date the entity enters into an
743	743	interim or comprehensive agreement.
744	744	(e) On completion of the negotiation phase for the
745	745	development of an interim or comprehensive agreement and before an
746	746	interim agreement or comprehensive agreement is entered into, a
747	747	responsible governmental entity must make available the proposed
748	748	agreement in a manner provided by Subsection (a) or (b).
749	749	(f) A responsible governmental entity that has entered into
750	750	an interim agreement or comprehensive agreement shall make
751	751	procurement records available for public inspection on request.
752	752	For purposes of this subsection, procurement records do not include
753	753	the trade secrets of the contracting person or financial records,
754	754	including balance sheets or financial statements of the contracting
755	755	person, that are not generally available to the public through
756	756	regulatory disclosure or other means.
757	757	(g) Cost estimates relating to a proposed procurement
758	758	transaction prepared by or for a responsible governmental entity
759	759	are not open to public inspection.
760	760	(h) Any inspection of procurement transaction records under
761	761	this section is subject to reasonable restrictions to ensure the
762	762	security and integrity of the records.
763	763	(i) This section applies to any accepted proposal
764	764	regardless of whether the process of bargaining results in an
765	765	interim or comprehensive agreement.
766	766	CHAPTER 2268. PARTNERSHIP ADVISORY COMMISSION
767	767	SUBCHAPTER A. GENERAL PROVISIONS
768	768	Sec. 2268.001. DEFINITIONS. In this chapter:
769	769	(1) "Commission" means the Partnership Advisory
770	770	Commission.
771	771	(2) "Comprehensive agreement" has the meaning
772	772	assigned by Section 2267.001.
773	773	(3) "Detailed proposal" means a proposal for a
774	774	qualifying project accepted by a responsible governmental entity
775	775	beyond a conceptual level of review that defines and establishes
776	776	periods related to fixing costs, payment schedules, financing,
777	777	deliverables, and project schedule.
778	778	(4) "Interim agreement" has the meaning assigned by
779	779	Section 2267.001.
780	780	(5) "Qualifying project" has the meaning assigned by
781	781	Section 2267.001.
782	782	(6) "Responsible governmental entity" has the meaning
783	783	assigned by Section 2267.001.
784	784	Sec. 2268.002. APPLICABILITY. This chapter applies only to
785	785	responsible governmental entities described by Section
786	786	2267.001(5)(A).
787	787	[Sections 2268.003-2268.050 reserved for expansion]
788	788	SUBCHAPTER B. COMMISSION
789	789	Sec. 2268.051. ESTABLISHMENT OF COMMISSION. The
790	790	Partnership Advisory Commission is an advisory commission in the
791	791	legislative branch that advises responsible governmental entities
792	792	described by Section 2267.001(5)(A) on proposals received under
793	793	Chapter 2267.
794	794	Sec. 2268.052. COMPOSITION AND TERMS. (a) The commission
795	795	consists of the following 11 members:
796	796	(1) the chair of the House Appropriations Committee or
797	797	the chair's designee;
798	798	(2) three representatives appointed by the speaker of
799	799	the house of representatives;
800	800	(3) the chair of the Senate Finance Committee or the
801	801	chair's designee;
802	802	(4) three senators appointed by the lieutenant
803	803	governor; and
804	804	(5) three representatives of the executive branch,
805	805	appointed by the governor.
806	806	(b) The legislative members serve on the commission until
807	807	the expiration of their terms of office or until their successors
808	808	qualify.
809	809	(c) The members appointed by the governor serve at the will
810	810	of the governor.
811	811	Sec. 2268.053. PRESIDING OFFICER. The members of the
812	812	commission shall elect from among the legislative members a
813	813	presiding officer and an assistant presiding officer to serve
814	814	two-year terms.
815	815	Sec. 2268.054. COMPENSATION; REIMBURSEMENT. A member of
816	816	the commission is not entitled to compensation for service on the
817	817	commission but is entitled to reimbursement for all reasonable and
818	818	necessary expenses incurred in performing duties as a member.
819	819	Sec. 2268.055. MEETINGS. The commission shall hold
820	820	meetings quarterly or on the call of the presiding officer.
821	821	Sec. 2268.056. ADMINISTRATIVE, LEGAL, RESEARCH, TECHNICAL,
822	822	AND OTHER SUPPORT. (a) The legislative body that the presiding
823	823	officer serves shall provide administrative staff support for the
824	824	commission.
825	825	(b) The Texas Legislative Council shall provide legal,
826	826	research, and policy analysis services to the commission.
827	827	(c) The staffs of the House Appropriations Committee,
828	828	Senate Finance Committee, and comptroller shall provide technical
829	829	assistance.
830	830	(d) The comptroller or a state agency shall provide
831	831	additional assistance as needed.
832	832	Sec. 2268.057. COMMISSION PROCEEDINGS. A copy of the
833	833	proceedings of the commission shall be filed with the legislative
834	834	body that the presiding officer serves.
835	835	Sec. 2268.058. SUBMISSION OF DETAILED PROPOSALS FOR
836	836	QUALIFYING PROJECTS; EXEMPTION; COMMISSION REVIEW. (a) Before
837	837	beginning to negotiate an interim or comprehensive agreement, each
838	838	responsible governmental entity receiving a detailed proposal for a
839	839	qualifying project must provide copies of the proposal to:
840	840	(1) the presiding officer of the commission; and
841	841	(2) the chairs of the House Appropriations Committee
842	842	and Senate Finance Committee or their designees.
843	843	(b) The following qualifying projects are not subject to
844	844	review by the commission:
845	845	(1) any proposed qualifying project with a total cost
846	846	of less than $5 million; and
847	847	(2) any proposed qualifying project with a total cost
848	848	of more than $5 million but less than $50 million for which money
849	849	has been specifically appropriated as a public-private partnership
850	850	in the General Appropriations Act.
851	851	(c) The commission may undertake additional reviews of any
852	852	qualifying project that will be completed in phases and for which an
853	853	appropriation has not been made for any phase other than the current
854	854	phase of the project.
855	855	(d) Not later than the 10th day after the date the
856	856	commission receives a complete copy of the detailed proposal for a
857	857	qualifying project, the commission shall determine whether to
858	858	accept or decline the proposal for review and notify the
859	859	responsible governmental entity of the commission's decision.
860	860	(e) If the commission accepts a proposal for review, the
861	861	commission shall provide its findings and recommendations to the
862	862	responsible governmental entity not later than the 45th day after
863	863	the date the commission receives complete copies of the detailed
864	864	proposal. If the commission does not provide its findings or
865	865	recommendations to the responsible governmental entity by that
866	866	date, the commission is considered to have declined review of the
867	867	proposal and to not have made any findings or recommendations on the
868	868	proposal.
869	869	(f) The responsible governmental entity on request of the
870	870	commission shall provide any additional information regarding a
871	871	qualifying project reviewed by the commission if the information is
872	872	available to or can be obtained by the responsible governmental
873	873	entity.
874	874	(g) The commission shall review accepted detailed proposals
875	875	and provide findings and recommendations to the responsible
876	876	governmental entity that include:
877	877	(1) a determination on whether the terms of the
878	878	proposal and proposed qualifying project create state
879	879	tax-supported debt, taking into consideration the specific
880	880	findings of the comptroller with respect to the recommendation;
881	881	(2) an analysis of the potential financial impact of
882	882	the qualifying project;
883	883	(3) a review of the policy aspects of the detailed
884	884	proposal and the qualifying project; and
885	885	(4) proposed general business terms.
886	886	(h) Review by the commission does not constitute approval of
887	887	any appropriations necessary to implement a subsequent interim or
888	888	comprehensive agreement.
889	889	(i) Except as provided by Subsection (e), the responsible
890	890	governmental entity may not begin negotiation of an interim or
891	891	comprehensive agreement until the commission has submitted its
892	892	recommendations or declined to accept the detailed proposals for
893	893	review.
894	894	(j) Not later than the 30th day before the date a
895	895	comprehensive or interim agreement is executed, the responsible
896	896	governmental entity shall submit to the commission and the chairs
897	897	of the House Appropriations Committee and Senate Finance Committee
898	898	or their designees:
899	899	(1) a copy of the proposed interim or comprehensive
900	900	agreement; and
901	901	(2) a report describing the extent to which the
902	902	commission's recommendations were addressed in the proposed
903	903	interim or comprehensive agreement.
904	904	Sec. 2268.059. CONFIDENTIALITY OF CERTAIN RECORDS
905	905	SUBMITTED TO COMMISSION. Records and information afforded
906	906	protection under Section 552.153 that are provided by a responsible
907	907	governmental entity to the commission shall continue to be
908	908	protected from disclosure when in the possession of the commission.
909	909	SECTION 2. Subchapter C, Chapter 552, Government Code, is
910	910	amended by adding Section 552.153 to read as follows:
911	911	Sec. 552.153. PROPRIETARY RECORDS AND TRADE SECRETS
912	912	INVOLVED IN CERTAIN PARTNERSHIPS. (a) In this section, "affected
913	913	jurisdiction," "comprehensive agreement," "contracting person,"
914	914	"interim agreement," "qualifying project," and "responsible
915	915	governmental entity" have the meanings assigned those terms by
916	916	Section 2267.001.
917	917	(b) Information in the custody of a responsible
918	918	governmental entity that relates to a proposal for a qualifying
919	919	project authorized under Chapter 2267 is excepted from the
920	920	requirements of Section 552.021 if:
921	921	(1) the information consists of memoranda, staff
922	922	evaluations, or other records prepared by the responsible
923	923	governmental entity, its staff, outside advisors, or consultants
924	924	exclusively for the evaluation and negotiation of proposals filed
925	925	under Chapter 2267 for which:
926	926	(A) disclosure to the public before or after the
927	927	execution of an interim or comprehensive agreement would adversely
928	928	affect the financial interest or bargaining position of the
929	929	responsible governmental entity; and
930	930	(B) the basis for the determination under
931	931	Paragraph (A) is documented in writing by the responsible
932	932	governmental entity; or
933	933	(2) the records are provided by a contracting person
934	934	to a responsible governmental entity or affected jurisdiction under
935	935	Chapter 2267 and contain:
936	936	(A) trade secrets of the contracting person;
937	937	(B) financial records of the contracting person,
938	938	including balance sheets and financial statements, that are not
939	939	generally available to the public through regulatory disclosure or
940	940	other means; or
941	941	(C) other information submitted by the
942	942	contracting person that, if made public before the execution of an
943	943	interim or comprehensive agreement, would adversely affect the
944	944	financial interest or bargaining position of the responsible
945	945	governmental entity or the person.
946	946	(c) Except as specifically provided by Subsection (b), this
947	947	section does not authorize the withholding of information
948	948	concerning:
949	949	(1) the terms of any interim or comprehensive
950	950	agreement, service contract, lease, partnership, or agreement of
951	951	any kind entered into by the responsible governmental entity and
952	952	the contracting person or the terms of any financing arrangement
953	953	that involves the use of any public money; or
954	954	(2) the performance of any person developing or
955	955	operating a qualifying project under Chapter 2267.
956	956	SECTION 3. This Act takes effect September 1, 2011.