83R27589 YDB-D
By: Watson, et al. S.B. No. 507
(J. Davis of Harris)
Substitute the following for S.B. No. 507: No.
A BILL TO BE ENTITLED
AN ACT
relating to public and private facilities and infrastructure.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 2166.001, Government Code, is amended by
amending Subdivisions (1) and (1-a) and adding Subdivision (1-b) to
read as follows:
(1) "Capitol Complex" has the meaning prescribed by
Section 411.061(a)(1).
(1-a) "Commission" means the Texas Facilities
Commission.
(1-b) [(1-a)] "Construction" includes acquisition and
reconstruction.
SECTION 2. Section 2267.001, Government Code, as added by
Chapter 1334 (S.B. 1048), Acts of the 82nd Legislature, Regular
Session, 2011, is amended by adding Subdivisions (1-a) and (9-b) to
read as follows:
(1-a) "Commission" means the Partnership Advisory
Commission established under Chapter 2268.
(9-b) "Proposer" means a private entity that submits a
proposal for a qualifying project to a responsible governmental
entity.
SECTION 3. Subchapter A, Chapter 2267, Government Code, as
added by Chapter 1334 (S.B. 1048), Acts of the 82nd Legislature,
Regular Session, 2011, is amended by adding Sections 2267.005,
2267.006, 2267.007, and 2267.008 to read as follows:
Sec. 2267.005. APPLICABILITY OF MUNICIPAL ZONING
REGULATIONS. (a) Except as provided by Subsection (b) and Section
2267.006, a qualifying project that is to be performed or located in
a municipality must comply with the zoning and land use regulations
of the municipality.
(b) This section does not apply to a qualifying project
that:
(1) uses a building, other structure, or land under
the control, administration, or jurisdiction of a state agency for
the same public purposes for which the state agency is authorized
under the governing law that established the agency to use the
building, structure, or land; or
(2) is located within the Capitol Complex, as defined
by Section 411.061(a)(1).
Sec. 2267.006. SPECIAL BOARD OF REVIEW. (a) If a
qualifying project involving a state facility or state-owned land
does not comply with the zoning and land use regulations of a
municipality as required by Section 2267.005 and the municipality
denies a rezoning request for the qualifying project, the matter
may be appealed to a special board of review consisting of the
following members:
(1) the land commissioner;
(2) the administrative head of the governing body of
the responsible governmental entity;
(3) the mayor of the municipality;
(4) the county judge of the county in which the
municipality is located;
(5) one state senator from the area impacted by the
project, selected by the lieutenant governor;
(6) one member of the house of representatives from
the area impacted by the project, selected by the speaker of the
house of representatives; and
(7) the commission member, appointed by the governor.
(b) The land commissioner shall serve as presiding officer
of the special board of review.
(c) The special board of review shall conduct one or more
public hearings to consider the proposed qualifying project. The
hearings must be conducted in accordance with rules adopted by the
General Land Office for conduct of special review. The hearings are
not considered a contested case proceeding under Chapter 2001.
(d) If after the hearings, the special board of review
determines that the zoning and land use regulations are detrimental
to the best interest of this state, the special board of review
shall issue an order establishing a development plan to govern the
use of the real property related to the qualifying project.
Development of the real property must be in accordance with the plan
and comply with all applicable municipal regulations, orders, or
ordinances except as specifically identified by the order of the
special board of review. If substantial progress is not made in
implementing the qualifying project before the fifth anniversary of
the date the development plan is adopted by the special board of
review, the municipal zoning and land use regulations become
applicable to development of the property, unless the special board
of review adopts a new development plan.
(e) A development plan adopted by the special board of
review and any plan accepted by a responsible governmental entity
is final and binding on the state, the responsible governmental
entity, lessees, successors in interest and assigns, and the
affected municipality unless revised by the special board of
review.
(f) A responsible governmental entity, builder, developer,
or any other person may not modify the development plan without
specific approval by the special board of review.
Sec. 2267.007. CONFLICT OF INTEREST. An employee of a
responsible governmental entity or a person related to the employee
within the second degree by consanguinity or affinity, as
determined under Chapter 573, may not accept money, a financial
benefit, or other consideration from a contracting person that has
entered into a comprehensive agreement with the responsible
governmental entity.
Sec. 2267.008. PROHIBITED EMPLOYMENT WITH FORMER OR RETIRED
GOVERNMENTAL ENTITY EMPLOYEES. (a) A contracting person may not
employ or enter into a professional services contract or a
consulting services contract under Chapter 2254 with a former or
retired employee of the responsible governmental entity with which
the person has entered into a comprehensive agreement before the
first anniversary of the date on which the former or retired
employee terminates employment with the entity.
(b) This section does not prohibit the contracting person
from entering into a professional services contract with a
corporation, firm, or other business organization that employs a
former or retired employee of the responsible governmental entity
before the first anniversary of the date the former or retired
employee terminates employment with the entity if the former or
retired employee does not perform services for the corporation,
firm, or other business organization under the comprehensive
agreement with the responsible governmental entity that the former
or retired employee worked on before terminating employment with
the entity.
SECTION 4. Section 2267.051, Government Code, as added by
Chapter 1334 (S.B. 1048), Acts of the 82nd Legislature, Regular
Session, 2011, is amended by amending Subsection (a) and adding
Subsection (a-1) to read as follows:
(a) Except as provided by Subsection (a-1), 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).
(a-1) A person may not develop or operate a qualifying
project on property located within the Capitol Complex, as defined
by Section 411.061(a)(1), unless the person obtains the approval of
and contracts with the responsible governmental entity under this
chapter. The person may not initiate the approval process by
submitting a proposal requesting approval under Section
2267.053(a). However, the responsible governmental entity may
request proposals or invite bids under Section 2267.053(b).
SECTION 5. Section 2267.052, Government Code, as added by
Chapter 1334 (S.B. 1048), Acts of the 82nd Legislature, Regular
Session, 2011, is amended by amending Subsections (b) and (c) and
adding Subsections (c-1) and (d) to read as follows:
(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) for a proposed qualifying project to improve real
property, require the responsible governmental entity to evaluate
the project's design quality, life-cycle costs, and relationship to
any relevant comprehensive planning or zoning requirements;
(8) 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;
(9) [(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);
(10) [(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
(11) [(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, as determined by the
responsible governmental entity, of not less than 45 days or more
than 180 days, or a longer period specified by the governing body of
the responsible governmental entity to accommodate a large-scale
project, [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) must include:
(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 similarly qualified employees of the
governmental entity.
(c-1) If the qualifying project proposal is for the
construction or renovation of a structure and the estimated cost of
the project is $5 million or more, the analyses required under
Subsection (c)(2) must include an analysis by an architect, a
professional engineer, and a certified public accountant.
(d) A responsible governmental entity described by Section
2267.001(5)(A) shall submit a copy of the guidelines adopted by the
entity under this section to the commission for approval by the
commission. The commission shall prescribe the procedure for
submitting the guidelines for review under this section. The
governmental entity may not request or consider a proposal for a
qualifying project until the guidelines are approved by the
commission. The guidelines are considered disapproved unless the
commission by majority vote of the commission members present and
voting approves the guidelines not later than the 90th day after the
date the commission receives the copy of the guidelines from the
responsible governmental entity.
SECTION 6. Section 2267.053, Government Code, as added by
Chapter 1334 (S.B. 1048), Acts of the 82nd Legislature, Regular
Session, 2011, is amended by amending Subsections (a), (b), (g),
and (h) and adding Subsections (a-1), (b-1), and (b-2) to read as
follows:
(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;
(10) a statement of the specific public purpose served
by the qualifying project;
(11) a statement describing the qualifying project's
compliance with the responsible governmental entity's best value
determination under Subsection (b-1); and
(12) [(10)] any additional material and information
the responsible governmental entity reasonably requests.
(a-1) A responsible governmental entity that accepts an
unsolicited proposal for a qualifying project under Subsection (a),
in accordance with the requirements of Section 2267.052(b)(11)(B),
shall select the contracting person for the project by soliciting
additional proposals through a request for qualifications, request
for proposals, or invitation to bid.
(b) A responsible governmental entity may request proposals
or invite bids from persons for the development or operation of a
qualifying project.
(b-1) A responsible governmental entity shall make a best
value determination in evaluating the proposals received and
consider the total project cost as one factor in evaluating the
proposals. The responsible governmental entity [received, but] is
not required to select the proposal that offers the lowest total
project cost and[. 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 and overall quality 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;
(10) the relationship and conformity of the qualifying
project to a state or local community plan impacted by the
qualifying project or to the uses of property surrounding the
qualifying project;
(11) the historic significance of the property on
which the qualifying project is proposed to be located;
(12) the environmental impact of the qualifying
project; and
(13) [(10)] other criteria that the responsible
governmental entity considers appropriate.
(b-2) A responsible governmental entity may approve a
qualifying project that the governmental entity determines serves a
public purpose. The responsible governmental entity must include
in the comprehensive agreement for the qualifying project a written
declaration of the specific public purpose served by the project.
(g) The responsible governmental entity shall take action
appropriate under Section 552.153 to protect confidential and
proprietary information provided by a proposer and 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, including drafts of any interim agreement and the
comprehensive agreement, to the Partnership Advisory Commission in
accordance with Chapter 2268.
SECTION 7. Subsection (a), Section 2267.058, Government
Code, as added by Chapter 1334 (S.B. 1048), Acts of the 82nd
Legislature, Regular Session, 2011, is amended to read as follows:
(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 indicating that
[if] the plans and specifications conform to standards acceptable
to the responsible governmental entity, except that the contracting
person may not be required to provide final design documents for
[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.
SECTION 8. The heading to Section 2267.066, Government
Code, is amended to read as follows:
Sec. 2267.066. POSTING OF PROPOSALS; PUBLIC COMMENT; PUBLIC
ACCESS TO PROCUREMENT RECORDS; FINAL VOTE.
SECTION 9. Section 2267.066, Government Code, is amended by
amending Subsections (c) and (d) and adding Subsection (e-1) to
read as follows:
(c) Trade secrets, proprietary information, and financial
records[, or other records] of a proposer are [the contracting
person] excluded from disclosure under Section 552.101 and may not
be posted or made available for public inspection except as
otherwise agreed to by the responsible governmental entity and the
proposer [contracting person]. After submission by a responsible
governmental entity of a detailed qualifying project proposal to
the commission, the trade secrets, proprietary information, and
financial records of the proposer are not protected from disclosure
unless expressly excepted from the requirements of Chapter 552 or
considered confidential under other law.
(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. The public hearing shall be
held in the area in which the proposed qualifying project is to be
performed.
(e-1) After making the proposed comprehensive agreement
available as required by Subsection (e), the responsible
governmental entity shall hold a public hearing on the final
version of the proposed comprehensive agreement and vote on the
proposed comprehensive agreement after the hearing. The hearing
must be held not later than the 10th day before the date the entity
enters into a comprehensive agreement with a contracting person.
SECTION 10. Subchapter B, Chapter 2267, Government Code, as
added by Chapter 1334 (S.B. 1048), Acts of the 82nd Legislature,
Regular Session, 2011, is amended by adding Section 2267.067 to
read as follows:
Sec. 2267.067. QUALIFYING PROJECT IN CAPITOL COMPLEX.
(a) A qualifying project for property located in the Capitol
Complex, as defined by Section 411.061(a)(1), must be consistent
with Capitol Complex design guidelines or standards adopted as part
of a 1989 planning process or subsequently adopted based on a
Capitol Complex master plan developed thereafter.
(b) A responsible governmental entity shall include design
guidelines and standards defined in Subsection (a) in the request
for proposals or invitation for bids for the development or
operation of a qualifying project and inform the persons who submit
proposals of the requirement to comply with the design guidelines
and standards. The final proposal or invitation must be submitted
to the State Preservation Board for verification that the proposal
complies with the standards.
(c) A responsible governmental entity shall submit a final
qualifying project proposal for property in the area described by
Subsection (a) to the State Preservation Board. The State
Preservation Board by majority vote may disapprove the proposal not
later than the 60th day after the date the proposal is received.
(d) A responsible governmental entity may not approve a
qualifying project proposal for property in the area described by
Subsection (a) before September 1, 2015. This subsection expires
September 1, 2015.
SECTION 11. Subsection (a), Section 2268.052, Government
Code, is amended to read as follows:
(a) The commission consists of the following six [11]
members:
(1) the chair of the House Appropriations Committee
[or the chair's designee];
(2) one representative [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) one senator [three senators] appointed by the
lieutenant governor; [and]
(5) the executive director of the State Preservation
Board, who serves as a nonvoting member; and
(6) one public member [three representatives of the
executive branch,] appointed by the governor.
SECTION 12. Section 2268.053, Government Code, is amended
to read as follows:
Sec. 2268.053. PRESIDING OFFICER. (a) The executive
director of the State Preservation Board shall serve as presiding
officer of the commission.
(b) The members of the commission shall elect from among the
legislative members [a presiding officer and] an assistant
presiding officer to serve a two-year term [terms].
SECTION 13. Subsection (a), Section 2268.056, Government
Code, is amended to read as follows:
(a) The State Preservation Board [legislative body that the
presiding officer serves] shall provide administrative staff
support for the commission.
SECTION 14. Subchapter B, Chapter 2268, Government Code, is
amended by adding Section 2268.0585 to read as follows:
Sec. 2268.0585. DISAPPROVAL OF QUALIFYING PROJECT
PROPOSALS OF CERTAIN RESPONSIBLE GOVERNMENTAL ENTITIES. The
commission by majority vote may disapprove a qualifying project
proposal submitted by a governmental entity described by Section
2267.001(5)(A).
SECTION 15. Section 552.153, Government Code, as added by
Chapter 1334 (S.B. 1048), Acts of the 82nd Legislature, Regular
Session, 2011, is amended by amending Subsection (b) and adding
Subsection (d) to read as follows:
(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 proposer
[contracting person] to a responsible governmental entity or
affected jurisdiction under Chapter 2267 and contain:
(A) trade secrets of the proposer [contracting
person];
(B) financial records of the proposer
[contracting person], including balance sheets and financial
statements, that are not generally available to the public through
regulatory disclosure or other means; or
(C) proprietary [other] information submitted by
the proposer [contracting person] that, if made public before the
execution of an interim or comprehensive agreement, would provide a
competing proposer an unjust advantage or adversely affect the
financial interest or bargaining position of the responsible
governmental entity or the proposer [person].
(d) In this section, "proposer" has the meaning assigned by
Section 2267.001, as added by Chapter 1334 (S.B. 1048), Acts of the
82nd Legislature, Regular Session, 2011.
SECTION 16. Subsection (c), Section 211.013, Local
Government Code, is amended to read as follows:
(c) Except as provided by Section 2267.005, Government
Code, this [This] subchapter does not apply to a building, other
structure, or land under the control, administration, or
jurisdiction of a state or federal agency.
SECTION 17. Subsection (e), Section 31.155, Natural
Resources Code, is amended to read as follows:
(e) The duties of the division to make recommendations
regarding real property and of the commissioner to prepare a report
involving real property under this subchapter do not apply to:
(1) the real property of the Texas Historical
Commission;
(2) the real property comprising the Alamo;
(3) the real property comprising the French Legation;
(4) the real property comprising the Governor's
Mansion;
(5) the real property comprising the Texas State
Cemetery, more specifically described as 17.376 acres located at
801 Comal, Lot 5, Division B, City of Austin, Travis County, Texas;
(6) the real property administered by the State
Preservation Board; [and]
(7) highway rights-of-way owned by the Texas
Department of Transportation; and
(8) the real property located in the Capitol Complex
as defined by Section 411.061(a)(1), Government Code.
SECTION 18. (a) The term of the presiding officer of the
Partnership Advisory Commission serving immediately before the
effective date of this Act expires on the effective date of this
Act. This subsection does not affect the entitlement of that
individual to continue to serve as a member of the commission.
(b) Not later than December 1, 2016, the Partnership
Advisory Commission established under Chapter 2268, Government
Code, shall submit to the lieutenant governor, the speaker of the
house of representatives, and the appropriate legislative standing
committees recommendations on proposed amendments to Chapters 2267
and 2268, Government Code.
SECTION 19. If Senate Bill No. 894, 83rd Legislature,
Regular Session, or similar legislation exempting property in the
Capitol Complex as defined by Subdivision (1), Subsection (a),
Section 411.061, Government Code, from Chapter 2267, Government
Code, as added by Chapter 1334 (Senate Bill No. 1048), Acts of the
82nd Legislature, Regular Session, 2011, is passed and signed into
law, Sections 4 and 10 of this Act do not take effect.
SECTION 20. This Act takes effect September 1, 2013.