83R12195 JAM-F
By: Harper-Brown H.B. No. 3650
A BILL TO BE ENTITLED
AN ACT
relating to the authority of the Texas Department of Transportation
to enter into availability payment agreements for the design,
development, financing, construction, maintenance, or operation of
a highway project.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 223, Transportation Code, is amended by
adding Subchapter G to read as follows:
SUBCHAPTER G. AVAILABILITY PAYMENT AGREEMENTS
Sec. 223.301. AUTHORITY. (a) The department may enter into
an agreement with a private entity for the design, development,
financing, construction, maintenance, or operation of a toll or
nontoll facility on the state highway system under which the
private entity is compensated through milestone or periodic
payments based on the private entity's compliance with performance
requirements defined in the agreement.
(b) Performance requirements in an agreement entered into
under this chapter may include requirements relating to the
availability of lanes for use by the traveling public.
(c) Subchapter A of this chapter and Chapter 2254,
Government Code, do not apply to an agreement entered into under
this subchapter.
Sec. 223.302. SOURCE OF PAYMENT. (a) Subject to
Subsections (b) and (c), the department may use any available funds
for the purpose of making a payment under an agreement entered into
under this subchapter, including money in the state highway fund
that is required to be used for public roadways by the Texas
Constitution or federal law.
(b) The total amount of compensation paid out of the state
highway fund may not exceed the amounts that are:
(1) eligible to be paid from those funds under the
Texas Constitution; and
(2) incurred or are reasonably anticipated to be
incurred by the private entity during the term of the agreement.
(c) The department's obligation to make a payment is subject
to the availability of funds appropriated by the legislature that
may be used for that purpose or other funds that may be used for that
purpose.
(d) The department may hold money that is to be used to
satisfy payment obligations of the department under an agreement
entered into under this subchapter, including money from the state
highway fund that is to be used for payments under this section, in
a reserve fund or trust account created under an agreement with a
commercial bank, depository trust company, or other entity.
Sec. 223.303. STIPULATED AMOUNT FOR UNSUCCESSFUL
PROPOSERS. (a) The department may pay an unsuccessful proposer
that submits a responsive proposal to a request for proposals for an
agreement under this subchapter a stipulated amount for the work
product contained in the proposal. The stipulated amount must be
specified in the request for proposals and may not exceed the value
of any work product contained in the proposal that the department
determines can be used by the department in the performance of the
department's functions.
(b) After payment of the stipulated amount, the department
and the unsuccessful proposer jointly own the rights to the work
product contained in the unsuccessful proposal, including the
technologies, techniques, methods, processes, ideas, and
information contained in the proposal, and the department may use
that work product.
(c) The use by the department or the unsuccessful proposer
of any portion of the work product contained in an unsuccessful
proposal is at the sole risk of that entity and does not confer on
the other entity liability or a right to compensation.
Sec. 223.304. PERFORMANCE OR PAYMENT BOND. (a) The
department shall require a private entity entering into an
agreement with the department under this subchapter to provide:
(1) a performance and payment bond; or
(2) an alternative form of security authorized by
Section 223.205.
(b) Except as provided by Subsection (c), a performance and
payment bond or alternative form of security shall be in an amount
equal to the cost of constructing the facility.
(c) If the department determines that it is impracticable
for a private entity to provide security in the amount described by
Subsection (b), the department shall set the security in an amount
sufficient to:
(1) ensure the proper performance of the agreement;
and
(2) protect:
(A) the department; and
(B) persons who have a direct contractual
relationship with the private entity or a subcontractor of the
private entity to supply labor or material.
Sec. 223.305. OTHER TERMS. An agreement entered into under
this subchapter may include any provision that the department
considers appropriate, including a provision:
(1) for the purchase by the department, under terms
agreed to by the parties, of the interest of the private entity in
the agreement and related property, including any interest in a
highway or other facility designed, developed, financed,
constructed, maintained, or operated under the agreement;
(2) that establishes the purchase price, or the
methodology to be used to determine the purchase price, for the
interest of the private entity in the agreement and related
property; or
(3) for the payment of obligations incurred under the
agreement, including any obligation to pay the purchase price for
the interest of the private entity in the agreement and related
property, from any lawfully available source, including the
securing of the obligation by a pledge of revenues of the commission
or the department derived from the facility that is subject to the
agreement, with the priority for the pledge set by the department.
Sec. 223.306. CONFIDENTIALITY OF INFORMATION. (a) To
encourage private entities to submit proposals under this
subchapter, the following information is confidential, is not
subject to disclosure, inspection, or copying under Chapter 552,
Government Code, and is not subject to disclosure, discovery,
subpoena, or other means of legal compulsion for its release until a
final contract for a proposed project is entered into:
(1) all or part of a proposal that is submitted by a
private entity for an agreement under this subchapter, except
information regarding the location, scope, or limits of a proposed
project and information regarding the private entity's
qualifications, experience, technical competence, and capability
to develop the project, unless the private entity consents to the
disclosure of the information;
(2) supplemental information or material submitted by
a private entity in connection with a proposal for an agreement
under this subchapter, unless the private entity consents to the
disclosure of the information or material; and
(3) information created or collected by the department
or its agent during consideration of a proposal for an agreement
under this subchapter.
(b) After the department completes its final ranking of
proposals submitted under this subchapter, the final rankings of
each proposal under each of the published criteria are not
confidential.
Sec. 223.307. OWNERSHIP OF FACILITIES. (a) A state highway
or another facility that is the subject of an availability payment
agreement under this subchapter is public property and shall be
owned by the department.
(b) Notwithstanding Subsection (a), the department may
enter into an agreement that provides for the lease of
rights-of-way, the granting of easements, the issuance of
franchises, licenses, or permits, or any lawful uses to enable a
private entity to construct, operate, and maintain a project,
including supplemental facilities. At the termination of the
agreement, the highway or other facilities are to be in a state of
proper maintenance as determined by the department and shall be
returned to the department in satisfactory condition at no further
cost.
Sec. 223.308. RULES. The commission may adopt rules
necessary to implement this subchapter. Rules adopted by the
commission may include criteria for determining the most qualified
entities to submit proposals, and for the award of an agreement to
the private entity determined to provide the best value for the
department.
SECTION 2. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2013.