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A BILL TO BE ENTITLED
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AN ACT
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relating to procurement methods of certain water utility systems |
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for the design, construction, and operation of certain facilities. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Chapter 271, Local Government Code, is amended |
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by adding Subchapter J to read as follows: |
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SUBCHAPTER J. ALTERNATIVE PROJECT DELIVERY METHODS FOR FACILITIES |
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Sec. 271.181. DEFINITIONS. In this subchapter: |
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(1) "Architect" means an individual registered as an |
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architect under Section 1051.001, Occupations Code. |
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(2) "Desalination facility" means a water |
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desalination project and all related wells and water supply, |
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treatment, drainage, discharge, distribution, or conveyance |
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facilities, and buildings or structures that are incidental to the |
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construction, operation, and maintenance of the water desalination |
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project. |
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(3) "Design-build contract" means a single contract |
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with a design-build firm for the design and construction or the |
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design, construction, and operation of a desalination facility. |
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(4) "Design-build firm" means a partnership, |
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corporation, or other legal entity or team that includes an |
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engineer or architect and builder qualified to engage in building |
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construction in Texas. |
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(5) "Engineer" means an individual licensed as an |
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engineer under Chapter 1001, Occupations Code. |
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(6) "Water system" means a municipally owned water or |
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wastewater system with a governing board appointed by the governing |
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body of the municipality. |
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Sec. 271.182. APPLICABILITY OF OTHER LAW. (a) Any provision |
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in the charter of a home-rule municipality or regulation, if any, of |
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a water system that requires the use of competitive sealed |
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proposals or prescribes procurement procedures and that is in |
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conflict with this subchapter controls over this subchapter unless |
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the governing body of the municipality or water system, as |
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appropriate, elects to have this subchapter supersede the charter |
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or regulation. |
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(b) The purchasing requirements of Section 361.426, Health |
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and Safety Code, apply to purchases by a water system made under |
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this subchapter. |
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(c) Except as provided by this section, to the extent of any |
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conflict, this subchapter prevails over any other law relating to |
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the design, construction, or operation of a desalination facility |
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except a law relating to contracting with historically |
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underutilized businesses. |
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Sec. 271.183. NOTICE REQUIREMENTS. For a contract entered |
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into by a water system under the methods provided by this |
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subchapter, the water system shall publish notice of the time and |
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place the proposals, or the responses to a request for |
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qualifications, will be received and opened. The notice must be |
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published in a newspaper of general circulation in the county in |
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which the water system's central administrative office is located |
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or the county in which the greatest amount of the water system's |
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territory is located once each week for at least two weeks before |
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the date of the deadline for receiving proposals or responses. If |
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there is not a newspaper of general circulation in that county, the |
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notice must be published in a newspaper of general circulation in |
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the county nearest the county seat of the county in which the water |
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system's central administrative office is located or the county in |
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which the greatest amount of the water system's territory is |
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located. |
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Sec. 271.184. DELEGATION. The governing board of a water |
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system may, as it considers appropriate, delegate its authority |
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under this subchapter regarding an action authorized or required by |
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this subchapter to be taken by a water system to a designated |
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person, representative, or committee. |
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Sec. 271.185. CONTRACTS FOR DESALINATION FACILITY: |
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DESIGN-BUILD. (a) A water system may use the design-build method |
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for the design, construction, rehabilitation, alteration, |
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operation, or repair of a desalination facility if the governing |
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board of the water system determines that the design-build method |
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provides the best value for the water system. In using this method |
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and in entering into a contract for the services of a design-build |
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firm, the contracting water system and the design-build firm shall |
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follow the procedures provided by this subchapter and Sections |
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271.113(b) and 271.114. |
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(b)(1) The water system shall evaluate and select a |
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design-build firm in two phases. |
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(2) In phase one, the water system shall prepare a |
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request for qualifications as provided by Section 271.186 and |
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evaluate each offeror's experience, technical competence, and |
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capability to perform, the past performance of the offeror's team |
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and members of the team, and other appropriate factors submitted by |
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the team or firm in response to the request for qualifications, |
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except that cost-related or price-related evaluation factors are |
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not permitted. The water system may interview any of the offerors |
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that submit a response to the request for qualifications. The water |
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system may qualify a maximum of five offerors on the basis of |
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demonstrated competence and qualifications to participate in the |
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second phase of the evaluation and selection process. |
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(3) In phase two, the water system shall request |
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proposals from the offerors qualified to participate in this phase |
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under Subsection (b)(2). The request for proposals must include |
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the selection criteria stated in the request for qualifications. |
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The water system may request additional information regarding |
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demonstrated competence and qualifications, considerations of the |
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safety and long-term durability of the desalination facility, the |
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feasibility of implementing the desalination facility as proposed, |
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the ability of the offeror to meet schedules, the overall cost of |
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the desalination facility, the anticipated operations and |
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maintenance budget at various levels, and any other information |
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that may assist the water system in evaluating and selecting a |
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design-build firm. Each proposal submitted by an offeror under |
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this phase must include a technical proposal that includes |
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preliminary design drawings, a project schedule, and a lump-sum |
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contract price for all services provided under the contract. The |
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water system may interview and negotiate with any respondent to the |
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request for proposals before and after the submission of a response |
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to the request and before the award to provide clarification and |
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assure full understanding of and responsiveness to the requirements |
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for the request for proposals. Offerors must be accorded fair and |
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equal treatment with respect to any opportunity for discussion with |
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or clarification by the water system. In conducting any |
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discussions under this subdivision regarding price, information |
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regarding price may not be disclosed to competing offerors. |
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Revision of a request for proposal is permitted under this |
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subdivision after the initial submission and before the award to |
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allow an offeror to submit a best and final proposal. The water |
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system shall select the design-build firm that submits the final |
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proposal offering the best value for the water system. |
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(c) The water system may: |
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(1) cancel a request for qualifications or a request |
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for proposals; or |
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(2) reject any proposal in whole or in part. |
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Sec. 271.186. REQUEST FOR QUALIFICATIONS. The water system |
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shall prepare a request for qualifications that may include: |
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(1) general information on the desalination facility |
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project; |
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(2) project scope; |
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(3) proposed budget; |
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(4) project schedule; |
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(5) any known special systems; |
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(6) the maximum number of design-build firms to be |
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qualified to participate in the second phase of the evaluation and |
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selection process; and |
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(7) other information that may assist potential |
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design-build firms in submitting proposals for the project. |
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Sec. 271.187. DISPOSITION OF PROPOSALS AFTER AWARD. (a) |
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All proposals submitted under this subchapter are property of the |
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water system. |
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(b) Before the execution of a contract under this |
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subchapter, only the name of a design-build firm qualified to |
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participate in phase two is available for public disclosure and all |
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other information received by the water system in response to a |
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request for qualifications or the request for proposals is |
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confidential. |
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(c) Except as provided by Subsection (d), information |
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contained in a proposal is open to public inspection not later than |
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the seventh day after the date the water system executes a contract |
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with a design-build firm under this subchapter. |
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(d) If a design-build firm requests, the water system will |
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consider trade secrets or any other proprietary information |
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contained in a proposal confidential to the extent permitted by |
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law. |
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Sec. 271.188. PERFORMANCE OR PAYMENT BOND. A payment or |
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performance bond is not required for, and may not provide coverage |
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for, the portion of a design-build contract under this subchapter |
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that includes design services only. If a fixed contract amount or |
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guaranteed maximum price has not been determined at the time a |
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design-build contract is awarded, the penal sums of the performance |
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and payment bonds delivered to the water system must each be in an |
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amount equal to the project budget, as specified in the request for |
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qualifications or request for proposals. The design-build firm |
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shall deliver the bonds not later than the 10th day after the date |
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the design-build firm executes the contract unless the design-build |
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firm furnishes a bid bond or other financial security acceptable to |
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the water system to ensure that the design-build firm will furnish |
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the required performance and payment bonds when a guaranteed |
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maximum price is established. |
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SECTION 2. The changes in law made by this Act apply only to |
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a contract for which a request for proposals or a request for |
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qualifications is first published or distributed on or after the |
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effective date of this Act. A contract for which a request for |
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proposals or a request for qualifications is first published or |
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distributed before the effective date of this Act is governed by the |
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law in effect at the time the request is published or distributed, |
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and the former law is continued in effect for that purpose. |
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SECTION 3. This Act takes effect September 1, 2007. |