Texas 2013 - 83rd Regular

Texas House Bill HB3650 Compare Versions

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1	1	83R12195 JAM-F
2	2	By: Harper-Brown H.B. No. 3650
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the authority of the Texas Department of Transportation
8	8	to enter into availability payment agreements for the design,
9	9	development, financing, construction, maintenance, or operation of
10	10	a highway project.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Chapter 223, Transportation Code, is amended by
13	13	adding Subchapter G to read as follows:
14	14	SUBCHAPTER G. AVAILABILITY PAYMENT AGREEMENTS
15	15	Sec. 223.301. AUTHORITY. (a) The department may enter into
16	16	an agreement with a private entity for the design, development,
17	17	financing, construction, maintenance, or operation of a toll or
18	18	nontoll facility on the state highway system under which the
19	19	private entity is compensated through milestone or periodic
20	20	payments based on the private entity's compliance with performance
21	21	requirements defined in the agreement.
22	22	(b) Performance requirements in an agreement entered into
23	23	under this chapter may include requirements relating to the
24	24	availability of lanes for use by the traveling public.
25	25	(c) Subchapter A of this chapter and Chapter 2254,
26	26	Government Code, do not apply to an agreement entered into under
27	27	this subchapter.
28	28	Sec. 223.302. SOURCE OF PAYMENT. (a) Subject to
29	29	Subsections (b) and (c), the department may use any available funds
30	30	for the purpose of making a payment under an agreement entered into
31	31	under this subchapter, including money in the state highway fund
32	32	that is required to be used for public roadways by the Texas
33	33	Constitution or federal law.
34	34	(b) The total amount of compensation paid out of the state
35	35	highway fund may not exceed the amounts that are:
36	36	(1) eligible to be paid from those funds under the
37	37	Texas Constitution; and
38	38	(2) incurred or are reasonably anticipated to be
39	39	incurred by the private entity during the term of the agreement.
40	40	(c) The department's obligation to make a payment is subject
41	41	to the availability of funds appropriated by the legislature that
42	42	may be used for that purpose or other funds that may be used for that
43	43	purpose.
44	44	(d) The department may hold money that is to be used to
45	45	satisfy payment obligations of the department under an agreement
46	46	entered into under this subchapter, including money from the state
47	47	highway fund that is to be used for payments under this section, in
48	48	a reserve fund or trust account created under an agreement with a
49	49	commercial bank, depository trust company, or other entity.
50	50	Sec. 223.303. STIPULATED AMOUNT FOR UNSUCCESSFUL
51	51	PROPOSERS. (a) The department may pay an unsuccessful proposer
52	52	that submits a responsive proposal to a request for proposals for an
53	53	agreement under this subchapter a stipulated amount for the work
54	54	product contained in the proposal. The stipulated amount must be
55	55	specified in the request for proposals and may not exceed the value
56	56	of any work product contained in the proposal that the department
57	57	determines can be used by the department in the performance of the
58	58	department's functions.
59	59	(b) After payment of the stipulated amount, the department
60	60	and the unsuccessful proposer jointly own the rights to the work
61	61	product contained in the unsuccessful proposal, including the
62	62	technologies, techniques, methods, processes, ideas, and
63	63	information contained in the proposal, and the department may use
64	64	that work product.
65	65	(c) The use by the department or the unsuccessful proposer
66	66	of any portion of the work product contained in an unsuccessful
67	67	proposal is at the sole risk of that entity and does not confer on
68	68	the other entity liability or a right to compensation.
69	69	Sec. 223.304. PERFORMANCE OR PAYMENT BOND. (a) The
70	70	department shall require a private entity entering into an
71	71	agreement with the department under this subchapter to provide:
72	72	(1) a performance and payment bond; or
73	73	(2) an alternative form of security authorized by
74	74	Section 223.205.
75	75	(b) Except as provided by Subsection (c), a performance and
76	76	payment bond or alternative form of security shall be in an amount
77	77	equal to the cost of constructing the facility.
78	78	(c) If the department determines that it is impracticable
79	79	for a private entity to provide security in the amount described by
80	80	Subsection (b), the department shall set the security in an amount
81	81	sufficient to:
82	82	(1) ensure the proper performance of the agreement;
83	83	and
84	84	(2) protect:
85	85	(A) the department; and
86	86	(B) persons who have a direct contractual
87	87	relationship with the private entity or a subcontractor of the
88	88	private entity to supply labor or material.
89	89	Sec. 223.305. OTHER TERMS. An agreement entered into under
90	90	this subchapter may include any provision that the department
91	91	considers appropriate, including a provision:
92	92	(1) for the purchase by the department, under terms
93	93	agreed to by the parties, of the interest of the private entity in
94	94	the agreement and related property, including any interest in a
95	95	highway or other facility designed, developed, financed,
96	96	constructed, maintained, or operated under the agreement;
97	97	(2) that establishes the purchase price, or the
98	98	methodology to be used to determine the purchase price, for the
99	99	interest of the private entity in the agreement and related
100	100	property; or
101	101	(3) for the payment of obligations incurred under the
102	102	agreement, including any obligation to pay the purchase price for
103	103	the interest of the private entity in the agreement and related
104	104	property, from any lawfully available source, including the
105	105	securing of the obligation by a pledge of revenues of the commission
106	106	or the department derived from the facility that is subject to the
107	107	agreement, with the priority for the pledge set by the department.
108	108	Sec. 223.306. CONFIDENTIALITY OF INFORMATION. (a) To
109	109	encourage private entities to submit proposals under this
110	110	subchapter, the following information is confidential, is not
111	111	subject to disclosure, inspection, or copying under Chapter 552,
112	112	Government Code, and is not subject to disclosure, discovery,
113	113	subpoena, or other means of legal compulsion for its release until a
114	114	final contract for a proposed project is entered into:
115	115	(1) all or part of a proposal that is submitted by a
116	116	private entity for an agreement under this subchapter, except
117	117	information regarding the location, scope, or limits of a proposed
118	118	project and information regarding the private entity's
119	119	qualifications, experience, technical competence, and capability
120	120	to develop the project, unless the private entity consents to the
121	121	disclosure of the information;
122	122	(2) supplemental information or material submitted by
123	123	a private entity in connection with a proposal for an agreement
124	124	under this subchapter, unless the private entity consents to the
125	125	disclosure of the information or material; and
126	126	(3) information created or collected by the department
127	127	or its agent during consideration of a proposal for an agreement
128	128	under this subchapter.
129	129	(b) After the department completes its final ranking of
130	130	proposals submitted under this subchapter, the final rankings of
131	131	each proposal under each of the published criteria are not
132	132	confidential.
133	133	Sec. 223.307. OWNERSHIP OF FACILITIES. (a) A state highway
134	134	or another facility that is the subject of an availability payment
135	135	agreement under this subchapter is public property and shall be
136	136	owned by the department.
137	137	(b) Notwithstanding Subsection (a), the department may
138	138	enter into an agreement that provides for the lease of
139	139	rights-of-way, the granting of easements, the issuance of
140	140	franchises, licenses, or permits, or any lawful uses to enable a
141	141	private entity to construct, operate, and maintain a project,
142	142	including supplemental facilities. At the termination of the
143	143	agreement, the highway or other facilities are to be in a state of
144	144	proper maintenance as determined by the department and shall be
145	145	returned to the department in satisfactory condition at no further
146	146	cost.
147	147	Sec. 223.308. RULES. The commission may adopt rules
148	148	necessary to implement this subchapter. Rules adopted by the
149	149	commission may include criteria for determining the most qualified
150	150	entities to submit proposals, and for the award of an agreement to
151	151	the private entity determined to provide the best value for the
152	152	department.
153	153	SECTION 2. This Act takes effect immediately if it receives
154	154	a vote of two-thirds of all the members elected to each house, as
155	155	provided by Section 39, Article III, Texas Constitution. If this
156	156	Act does not receive the vote necessary for immediate effect, this
157	157	Act takes effect September 1, 2013.