Texas 2015 - 84th Regular

Texas House Bill HB2475 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1		-	By: Geren (Senate Sponsor - Eltife) H.B. No. 2475
2		-	(In the Senate - Received from the House May 18, 2015;
3		-	May 18, 2015, read first time and referred to Committee on Business
4		-	and Commerce; May 22, 2015, reported adversely, with favorable
5		-	Committee Substitute by the following vote: Yeas 6, Nays 0;
6		-	May 22, 2015, sent to printer.)
7		-	Click here to see the committee vote
8		-	COMMITTEE SUBSTITUTE FOR H.B. No. 2475 By: Eltife
	1	+	H.B. No. 2475
9	2
10	3
11		-	A BILL TO BE ENTITLED
12	4		AN ACT
13	5		relating to the establishment of the center for alternative finance
14	6		and procurement within the Texas Facilities Commission and to
15	7		public and private partnerships; authorizing a fee.
16	8		BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
17	9		SECTION 1. Subchapter C, Chapter 2152, Government Code, is
18	10		amended by adding Section 2152.110 to read as follows:
19	11		Sec. 2152.110. CENTER FOR ALTERNATIVE FINANCE AND
20	12		PROCUREMENT. The commission shall establish the center for
21	13		alternative finance and procurement to consult with governmental
22	14		entities regarding best practices for procurement and the financing
23	15		of qualifying projects and to assist governmental entities in the
24	16		receipt of proposals, negotiation of interim and comprehensive
25	17		agreements, and management of qualifying projects under Chapters
26	18		2267 and 2268.
27	19		SECTION 2. Section 2267.001, Government Code, is amended by
28	20		amending Subdivision (1-a) and adding Subdivision (1-b) to read as
29	21		follows:
30	22		(1-a) "Center" means the center for alternative
31	23		finance and procurement established under Section 2152.110 by the
32	24		Texas Facilities Commission.
33	25		(1-b) "Commission" means the Partnership Advisory
34	26		Commission established under Chapter 2268.
35	27		SECTION 3. Section 2267.051, Government Code, is amended to
36	28		read as follows:
37	29		Sec. 2267.051. APPROVAL REQUIRED[; SUBMISSION OF PROPOSAL
38	30		FOR QUALIFYING PROJECT]. [(a)] A person may not develop or operate
39	31		a qualifying project unless the person obtains the approval of and
40	32		contracts with the responsible governmental entity under this
41	33		chapter. [The person may initiate the approval process by
42	34		submitting a proposal requesting approval under Section
43	35		2267.053(a), or the responsible governmental entity may request
44	36		proposals or invite bids under Section 2267.053(b).
45	37		[(b) A person submitting a proposal requesting approval of a
46	38		qualifying project shall specifically and conceptually identify
47	39		any facility, building, infrastructure, or improvement included in
48	40		the proposal as a part of the qualifying project.
49	41		[(c) On receipt of a proposal submitted by a person
50	42		initiating the approval process under Section 2267.053(a), the
51	43		responsible governmental entity shall determine whether to accept
52	44		the proposal for consideration in accordance with Sections 2267.052
53	45		and 2267.065 and the guidelines adopted under those sections. A
54	46		responsible governmental entity that determines not to accept the
55	47		proposal for consideration shall return the proposal, all fees, and
56	48		the accompanying documentation to the person submitting the
57	49		proposal.
58	50		[(d) The responsible governmental entity may at any time
59	51		reject a proposal initiated by a person under Section 2267.053(a).]
60	52		SECTION 4. Sections 2267.052(b), (c), and (c-1), Government
61	53		Code, are amended to read as follows:
62	54		(b) The guidelines for a responsible governmental entity
63	55		described by Section 2267.001(5)(A) must:
64	56		(1) require the responsible governmental entity to:
65	57		(A) make a representative of the entity available
66	58		to meet with persons who are considering submitting a proposal; and
67	59		(B) provide notice of the representative's
68	60		availability;
69	61		(2) provide reasonable criteria for choosing among
70	62		competing proposals;
71	63		(3) contain suggested timelines for selecting
72	64		proposals and negotiating an interim or comprehensive agreement;
73	65		(4) allow the responsible governmental entity to
74	66		accelerate the selection, review, and documentation timelines for
75	67		proposals involving a qualifying project considered a priority by
76	68		the entity;
77	69		(5) include financial review and analysis procedures
78	70		that at a minimum consist of:
79	71		(A) a cost-benefit analysis;
80	72		(B) an assessment of opportunity cost;
81	73		(C) consideration of the degree to which
82	74		functionality and services similar to the functionality and
83	75		services to be provided by the proposed project are already
84	76		available in the private market; and
85	77		(D) consideration of the results of all studies
86	78		and analyses related to the proposed qualifying project;
87	79		(6) allow the responsible governmental entity to
88	80		consider the nonfinancial benefits of a proposed qualifying
89	81		project;
90	82		(7) ensure that the governmental entity, for a
91	83		proposed project to improve real property, evaluates design
92	84		quality, life-cycle costs, and the proposed project's relationship
93	85		to any relevant comprehensive planning or zoning requirements;
94	86		(8) include criteria for:
95	87		(A) the qualifying project, including the scope,
96	88		costs, and duration of the project and the involvement or impact of
97	89		the project on multiple public entities;
98	90		(B) the creation of and the responsibilities of
99	91		an oversight committee, with members representing the responsible
100	92		governmental entity, that acts as an advisory committee to review
101	93		the terms of any proposed interim or comprehensive agreement; and
102	94		(C) the center's role in the review, analysis, or
103	95		evaluation of the qualifying project [compliance with the
104	96		requirements of Chapter 2268];
105	97		(9) require the responsible governmental entity to
106	98		analyze the adequacy of the information to be released by the entity
107	99		when seeking competing proposals and require that the entity
108	100		provide more detailed information, if the entity determines
109	101		necessary, to encourage competition, subject to Section
110	102		2267.053(g); and
111	103		(10) establish criteria, key decision points, and
112	104		approvals required to ensure that the responsible governmental
113	105		entity considers the extent of competition before selecting
114	106		proposals and negotiating an interim or comprehensive agreement[;
115	107		and
116	108		[(11) require the posting and publishing of public
117	109		notice of a proposal requesting approval of a qualifying project,
118	110		including:
119	111		[(A) specific information and documentation
120	112		regarding the nature, timing, and scope of the qualifying project,
121	113		as required under Section 2267.053(a);
122	114		[(B) a reasonable period, as determined by the
123	115		responsible governmental entity, of not less than 45 days or more
124	116		than 180 days, or a longer period specified by the governing body of
125	117		the responsible governmental entity to accommodate a large-scale
126	118		project, to encourage competition and partnerships with private
127	119		entities and other persons in accordance with the goals of this
128	120		chapter, during which the responsible governmental entity must
129	121		accept submission of competing proposals for the qualifying
130	122		project; and
131	123		[(C) a requirement for advertising the notice on
132	124		the governmental entity's Internet website and on TexasOnline or
133	125		the state's official Internet website].
134	126		(c) The guidelines of a responsible governmental entity
135	127		described by Section 2267.001(5)(B) must include:
136	128		(1) the provisions required under Subsection (b); and
137	129		(2) a requirement that the governmental entity engage
138	130		the services of qualified professionals, including an architect,
139	131		professional engineer, or registered municipal advisor [certified
140	132		public accountant], not otherwise employed by the governmental
141	133		entity, or the center to provide independent analyses regarding the
142	134		specifics, advantages, disadvantages, and long-term and short-term
143	135		costs of [any proposal requesting approval of] a qualifying project
144	136		unless the governing body of the governmental entity determines
145	137		that the analysis [of the proposal] is to be performed by similarly
146	138		qualified employees of the governmental entity.
147	139		(c-1) For a proposal with an estimated cost of $5 million or
148	140		more for [the] construction or renovation of a qualifying
149	141		[structure or] project, the analysis conducted under Subsection
150	142		(c)(2) must include review [of the proposal] by an architect, a
151	143		professional engineer, and a registered municipal advisor
152	144		[certified public accountant] not otherwise employed by the
153	145		governmental entity.
154	146		SECTION 5. Section 2267.053(d), Government Code, is amended
155	147		to read as follows:
156	148		(d) The responsible governmental entity may charge a
157	149		reasonable fee to cover the costs of processing, reviewing, and
158	150		evaluating the proposal, including reasonable legal fees, [and]
159	151		fees for financial and[,] technical[, and other necessary] advisors
160	152		or consultants, and fees for the center's review or consultation.
161	153		SECTION 6. Section 2267.058(g), Government Code, is amended
162	154		to read as follows:
163	155		(g) The comprehensive agreement must provide that a
164	156		security document or other instrument purporting to mortgage,
165	157		pledge, encumber, or create a lien, charge, or security interest on
166	158		or against the contracting party's interest may not extend to or
167	159		affect the fee simple interest of the state in the qualifying
168	160		project or the state's rights or interests under the comprehensive
169	161		agreement. Any holder of debt shall acknowledge that the mortgage,
170	162		pledge, or encumbrance or a lien, charge, or security interest on or
171	163		against the contracting party's interest is subordinate to the fee
172	164		simple interest of the state in the qualifying project [and the
173	165		state's rights or interests under the comprehensive agreement].
174	166		SECTION 7. Section 2267.065(b), Government Code, is amended
175	167		to read as follows:
176	168		(b) A responsible governmental entity may enter into a
177	169		comprehensive agreement only in accordance with guidelines that
178	170		require the contracting person to design and construct the
179	171		qualifying project in accordance with procedures that do not
180	172		materially conflict with those specified in:
181	173		(1) Subchapter G, Chapter 2269, for facilities
182	174		projects described by Section 2269.302 [2166.2531]; or
183	175		(2) Subchapter H, Chapter 2269 [Section 44.036,
184	176		Education Code;
185	177		[(3) Section 51.780, Education Code;
186	178		[(4) Section 271.119, Local Government Code; or
187	179		[(5) Subchapter J, Chapter 271, Local Government
188	180		Code], for civil works projects as defined by Section 2269.351
189	181		[271.181(2), Local Government Code].
190	182		SECTION 8. Section 2267.066(a), Government Code, is amended
191	183		to read as follows:
192	184		(a) Not later than the 10th day after the date a responsible
193	185		governmental entity accepts a proposal submitted in accordance with
194	186		Section 2267.053(b) [2267.053(a) or (b)], the responsible
195	187		governmental entity shall provide notice of the proposal as
196	188		follows:
197	189		(1) for a responsible governmental entity described by
198	190		Section 2267.001(5)(A), by posting the proposal on the entity's
199	191		Internet website; and
200	192		(2) for a responsible governmental entity described by
201	193		Section 2267.001(5)(B), by:
202	194		(A) posting a copy of the proposal on the
203	195		entity's Internet website; or
204	196		(B) publishing in a newspaper of general
205	197		circulation in the area in which the qualifying project is to be
206	198		performed a summary of the proposal and the location where copies of
207	199		the proposal are available for public inspection.
208	200		SECTION 9. Section 2268.001, Government Code, is amended by
209	201		amending Subdivision (1) and adding Subdivision (1-a) to read as
210	202		follows:
211	203		(1) "Center" means the center for alternative finance
212	204		and procurement established under Section 2152.110 by the Texas
213	205		Facilities Commission.
214	206		(1-a) "Commission" means the Partnership Advisory
215	207		Commission.
216	208		SECTION 10. Section 2268.056(d), Government Code, is
217	209		amended to read as follows:
218	210		(d) The center [Texas Facilities Commission], using the
219	211		qualifying project fees authorized under Section 2165.353, shall
220	212		provide, on a cost recovery basis, professional services [of its
221	213		architectural, engineering, and real estate staff and the
222	214		expertise] of financial, technical, and other necessary advisors
223	215		and consultants, authorized under Section 2267.053(d), as
224	216		necessary to support the Partnership Advisory Commission in its
225	217		review and evaluation of proposals, including financial and risk
226	218		allocation analysis and ongoing contract performance monitoring of
227	219		qualifying projects. The center [Texas Facilities Commission]
228	220		shall assign staff and contracted advisors and consultants
229	221		necessary to perform the duties required by this subsection.
230	222		SECTION 11. Section 2268.059, Government Code, is amended
231	223		to read as follows:
232	224		Sec. 2268.059. CONFIDENTIALITY OF CERTAIN RECORDS
233	225		SUBMITTED TO COMMISSION. Records and information afforded
234	226		protection under Section 552.153 that are provided by a responsible
235	227		governmental entity to the commission and the presiding officer of
236	228		the House Appropriations Committee and of the Senate Finance
237	229		Committee, or their designees, shall continue to be protected from
238	230		disclosure when in the possession of the commission and the
239	231		presiding officers or their designees.
240	232		SECTION 12. The following provisions of the Government Code
241	233		are repealed:
242	234		(1) Section 2267.002(e); and
243	235		(2) Sections 2267.053(a) and (a-1).
244	236		SECTION 13. As soon as practicable after the effective date
245	237		of this Act, the Texas Facilities Commission shall adopt the rules
246	238		necessary to establish the center for alternative finance and
247	239		procurement in accordance with Section 2152.110, Government Code,
248	240		as added by this Act.
249	241		SECTION 14. This Act takes effect September 1, 2015.
250		-	* * * * *
	242	+	______________________________ ______________________________
	243	+	President of the Senate Speaker of the House
	244	+	I certify that H.B. No. 2475 was passed by the House on May
	245	+	15, 2015, by the following vote: Yeas 123, Nays 6, 2 present, not
	246	+	voting; and that the House concurred in Senate amendments to H.B.
	247	+	No. 2475 on May 28, 2015, by the following vote: Yeas 139, Nays 5,
	248	+	2 present, not voting.
	249	+	______________________________
	250	+	Chief Clerk of the House
	251	+	I certify that H.B. No. 2475 was passed by the Senate, with
	252	+	amendments, on May 26, 2015, by the following vote: Yeas 30, Nays
	253	+	1.
	254	+	______________________________
	255	+	Secretary of the Senate
	256	+	APPROVED: __________________
	257	+	Date
	258	+	__________________
	259	+	Governor