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AN ACT
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relating to the creation of public and private facilities and |
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infrastructure. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subtitle F, Title 10, Government Code, is |
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amended by adding Chapters 2267 and 2268 to read as follows: |
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CHAPTER 2267. PUBLIC AND PRIVATE FACILITIES AND INFRASTRUCTURE |
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SUBCHAPTER A. GENERAL PROVISIONS |
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Sec. 2267.001. DEFINITIONS. In this chapter: |
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(1) "Affected jurisdiction" means any county or |
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municipality in which all or a portion of a qualifying project is |
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located. |
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(2) "Comprehensive agreement" means the comprehensive |
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agreement authorized by Section 2267.058 between the contracting |
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person and the responsible governmental entity. |
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(3) "Contracting person" means a person who enters |
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into a comprehensive or interim agreement with a responsible |
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governmental entity under this chapter. |
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(4) "Develop" means to plan, design, develop, finance, |
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lease, acquire, install, construct, or expand a qualifying project. |
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(5) "Governmental entity" means: |
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(A) a board, commission, department, or other |
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agency of this state, including an institution of higher education |
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as defined by Section 61.003, Education Code, that elects to |
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operate under this chapter through the adoption of a resolution by |
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the institution's board of regents; and |
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(B) a political subdivision of this state that |
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elects to operate under this chapter by the adoption of a resolution |
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by the governing body of the political subdivision. |
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(6) "Interim agreement" means an agreement authorized |
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by Section 2267.059 between a contracting person and a responsible |
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governmental entity that proposes the development or operation of |
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the qualifying project. |
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(7) "Lease payment" means any form of payment, |
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including a land lease, by a governmental entity to the contracting |
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person for the use of a qualifying project. |
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(8) "Material default" means any default by a |
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contracting person in the performance of duties imposed under |
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Section 2267.057(f) that jeopardizes adequate service to the public |
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from a qualifying project. |
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(9) "Operate" means to finance, maintain, improve, |
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equip, modify, repair, or operate a qualifying project. |
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(10) "Qualifying project" means: |
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(A) any ferry, mass transit facility, vehicle |
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parking facility, port facility, power generation facility, fuel |
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supply facility, oil or gas pipeline, water supply facility, public |
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work, waste treatment facility, hospital, school, medical or |
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nursing care facility, recreational facility, public building, or |
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other similar facility currently available or to be made available |
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to a governmental entity for public use, including any structure, |
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parking area, appurtenance, and other property required to operate |
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the structure or facility and any technology infrastructure |
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installed in the structure or facility that is essential to the |
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project's purpose; or |
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(B) any improvements necessary or desirable to |
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unimproved real estate owned by a governmental entity. |
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(11) "Responsible governmental entity" means a |
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governmental entity that has the power to develop or operate an |
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applicable qualifying project. |
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(12) "Revenue" means all revenue, income, earnings, |
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user fees, lease payments, or other service payments that support |
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the development or operation of a qualifying project, including |
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money received as a grant or otherwise from the federal government, |
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a governmental entity, or any agency or instrumentality of the |
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federal government or governmental entity in aid of the project. |
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(13) "Service contract" means a contract between a |
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governmental entity and a contracting person under Section |
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2267.054. |
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(14) "Service payment" means a payment to a |
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contracting person of a qualifying project under a service |
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contract. |
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(15) "User fee" means a rate, fee, or other charge |
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imposed by a contracting person for the use of all or part of a |
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qualifying project under a comprehensive agreement. |
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Sec. 2267.002. DECLARATION OF PUBLIC PURPOSE; CONSTRUCTION |
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OF CHAPTER. (a) The legislature finds that: |
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(1) there is a public need for timely acquisition, |
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design, construction, improvement, renovation, expansion, |
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equipping, maintenance, operation, implementation, and |
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installation of education facilities, technology and other public |
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infrastructure, and government facilities in this state that serve |
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a public need and purpose; |
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(2) the public need may not be wholly satisfied by |
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existing methods of procurement in which qualifying projects are |
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acquired, designed, constructed, improved, renovated, expanded, |
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equipped, maintained, operated, implemented, or installed; |
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(3) there are inadequate resources to develop new |
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education facilities, technology and other public infrastructure, |
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and government facilities for the benefit of the citizens of this |
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state, and there is demonstrated evidence that partnerships between |
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public entities and private entities or other persons can meet |
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these needs by improving the schedule for delivery, lowering the |
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cost, and providing other benefits to the public; |
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(4) financial incentives exist under state and federal |
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tax provisions that encourage public entities to enter into |
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partnerships with private entities or other persons to develop |
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qualifying projects; and |
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(5) authorizing private entities or other persons to |
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develop or operate one or more qualifying projects may serve the |
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public safety, benefit, and welfare by making the projects |
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available to the public in a more timely or less costly fashion. |
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(b) An action authorized under Section 2267.053 serves the |
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public purpose of this chapter if the action facilitates the timely |
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development or operation of a qualifying project. |
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(c) The purposes of this chapter include: |
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(1) encouraging investment in this state by private |
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entities and other persons; |
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(2) facilitating bond financing or other similar |
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financing mechanisms, private capital, and other funding sources |
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that support the development or operation of qualifying projects in |
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order to expand and accelerate financing for qualifying projects |
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that improve and add to the convenience of the public; and |
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(3) providing governmental entities with the greatest |
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possible flexibility in contracting with private entities or other |
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persons to provide public services through qualifying projects |
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subject to this chapter. |
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(d) This chapter shall be liberally construed in conformity |
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with the purposes of this section. |
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(e) The procedures in this chapter are not exclusive. This |
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chapter does not prohibit a responsible governmental entity from |
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entering into an agreement for or procuring public and private |
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facilities and infrastructure under other statutory authority. |
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Sec. 2267.003. APPLICABILITY. This chapter does not apply |
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to: |
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(1) the financing, design, construction, maintenance, |
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or operation of a highway in the state highway system; |
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(2) a transportation authority created under Chapter |
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451, 452, 453, or 460, Transportation Code; or |
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(3) any telecommunications, cable television, video |
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service, or broadband infrastructure other than technology |
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installed as part of a qualifying project that is essential to the |
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project. |
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Sec. 2267.004. APPLICABILITY OF EMINENT DOMAIN LAW. This |
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chapter does not alter the eminent domain laws of this state or |
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grant the power of eminent domain to any person who is not expressly |
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granted that power under other state law. |
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[Sections 2267.005-2267.050 reserved for expansion] |
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SUBCHAPTER B. QUALIFYING PROJECTS |
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Sec. 2267.051. APPROVAL REQUIRED; SUBMISSION OF PROPOSAL |
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FOR QUALIFYING PROJECT. (a) A person may not develop or operate a |
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qualifying project unless the person obtains the approval of and |
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contracts with the responsible governmental entity under this |
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chapter. The person may initiate the approval process by |
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submitting a proposal requesting approval under Section |
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2267.053(a), or the responsible governmental entity may request |
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proposals or invite bids under Section 2267.053(b). |
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(b) A person submitting a proposal requesting approval of a |
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qualifying project shall specifically and conceptually identify |
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any facility, building, infrastructure, or improvement included in |
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the proposal as a part of the qualifying project. |
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(c) On receipt of a proposal submitted by a person |
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initiating the approval process under Section 2267.053(a), the |
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responsible governmental entity shall determine whether to accept |
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the proposal for consideration in accordance with Sections 2267.052 |
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and 2267.065 and the guidelines adopted under those sections. A |
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responsible governmental entity that determines not to accept the |
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proposal for consideration shall return the proposal, all fees, and |
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the accompanying documentation to the person submitting the |
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proposal. |
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(d) The responsible governmental entity may at any time |
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reject a proposal initiated by a person under Section 2267.053(a). |
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Sec. 2267.052. ADOPTION OF GUIDELINES BY RESPONSIBLE |
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GOVERNMENTAL ENTITIES. (a) Before requesting or considering a |
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proposal for a qualifying project, a responsible governmental |
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entity must adopt and make publicly available guidelines that |
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enable the governmental entity to comply with this chapter. The |
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guidelines must be reasonable, encourage competition, and guide the |
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selection of projects under the purview of the responsible |
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governmental entity. |
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(b) The guidelines for a responsible governmental entity |
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described by Section 2267.001(5)(A) must: |
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(1) require the responsible governmental entity to: |
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(A) make a representative of the entity available |
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to meet with persons who are considering submitting a proposal; and |
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(B) provide notice of the representative's |
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availability; |
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(2) provide reasonable criteria for choosing among |
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competing proposals; |
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(3) contain suggested timelines for selecting |
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proposals and negotiating an interim or comprehensive agreement; |
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(4) allow the responsible governmental entity to |
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accelerate the selection, review, and documentation timelines for |
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proposals involving a qualifying project considered a priority by |
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the entity; |
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(5) include financial review and analysis procedures |
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that at a minimum consist of: |
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(A) a cost-benefit analysis; |
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(B) an assessment of opportunity cost; |
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(C) consideration of the degree to which |
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functionality and services similar to the functionality and |
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services to be provided by the proposed project are already |
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available in the private market; and |
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(D) consideration of the results of all studies |
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and analyses related to the proposed qualifying project; |
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(6) allow the responsible governmental entity to |
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consider the nonfinancial benefits of a proposed qualifying |
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project; |
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(7) include criteria for: |
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(A) the qualifying project, including the scope, |
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costs, and duration of the project and the involvement or impact of |
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the project on multiple public entities; |
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(B) the creation of and the responsibilities of |
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an oversight committee, with members representing the responsible |
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governmental entity, that acts as an advisory committee to review |
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the terms of any proposed interim or comprehensive agreement; and |
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(C) compliance with the requirements of Chapter |
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2268; |
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(8) require the responsible governmental entity to |
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analyze the adequacy of the information to be released by the entity |
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when seeking competing proposals and require that the entity |
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provide more detailed information, if the entity determines |
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necessary, to encourage competition, subject to Section |
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2267.053(g); |
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(9) establish criteria, key decision points, and |
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approvals required to ensure that the responsible governmental |
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entity considers the extent of competition before selecting |
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proposals and negotiating an interim or comprehensive agreement; |
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and |
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(10) require the posting and publishing of public |
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notice of a proposal requesting approval of a qualifying project, |
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including: |
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(A) specific information and documentation |
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regarding the nature, timing, and scope of the qualifying project, |
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as required under Section 2267.053(a); |
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(B) a reasonable period of not less than 45 days, |
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as determined by the responsible governmental entity, to encourage |
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competition and partnerships with private entities and other |
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persons in accordance with the goals of this chapter, during which |
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the responsible governmental entity must accept submission of |
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competing proposals for the qualifying project; and |
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(C) a requirement for advertising the notice on |
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the governmental entity's Internet website and on TexasOnline or |
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the state's official Internet website. |
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(c) The guidelines of a responsible governmental entity |
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described by Section 2267.001(5)(B): |
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(1) may include the provisions required under |
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Subsection (b); and |
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(2) must include a requirement that the governmental |
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entity engage the services of qualified professionals, including an |
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architect, professional engineer, or certified public accountant, |
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not otherwise employed by the governmental entity, to provide |
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independent analyses regarding the specifics, advantages, |
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disadvantages, and long-term and short-term costs of any proposal |
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requesting approval of a qualifying project unless the governing |
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body of the governmental entity determines that the analysis of the |
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proposal is to be performed by employees of the governmental |
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entity. |
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Sec. 2267.053. APPROVAL OF QUALIFYING PROJECTS BY |
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RESPONSIBLE GOVERNMENTAL ENTITY. (a) A private entity or other |
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person may submit a proposal requesting approval of a qualifying |
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project by the responsible governmental entity. The proposal must |
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be accompanied by the following, unless waived by the responsible |
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governmental entity: |
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(1) a topographic map, with a 1:2,000 or other |
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appropriate scale, indicating the location of the qualifying |
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project; |
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(2) a description of the qualifying project, |
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including: |
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(A) the conceptual design of any facility or a |
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conceptual plan for the provision of services or technology |
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infrastructure; and |
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(B) a schedule for the initiation of and |
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completion of the qualifying project that includes the proposed |
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major responsibilities and timeline for activities to be performed |
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by the governmental entity and the person; |
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(3) a statement of the method the person proposes for |
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securing necessary property interests required for the qualifying |
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project; |
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(4) information relating to any current plans for the |
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development of facilities or technology infrastructure to be used |
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by a governmental entity that are similar to the qualifying project |
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being proposed by the person for each affected jurisdiction; |
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(5) a list of all permits and approvals required for |
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the development and completion of the qualifying project from |
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local, state, or federal agencies and a projected schedule for |
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obtaining the permits and approvals; |
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(6) a list of any facilities that will be affected by |
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the qualifying project and a statement of the person's plans to |
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accommodate the affected facilities; |
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(7) a statement on the person's general plans for |
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financing the qualifying project, including the sources of the |
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person's funds and identification of any dedicated revenue source |
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or proposed debt or equity investment for the person; |
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(8) the name and address of each individual who may be |
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contacted for further information concerning the request; |
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(9) user fees, lease payments, and other service |
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payments over the term of any applicable interim or comprehensive |
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agreement and the methodology and circumstances for changes to the |
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user fees, lease payments, and other service payments over time; |
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and |
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(10) any additional material and information the |
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responsible governmental entity reasonably requests. |
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(b) A responsible governmental entity may request proposals |
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or invite bids from persons for the development or operation of a |
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qualifying project. A responsible governmental entity shall |
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consider the total project cost as one factor in evaluating the |
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proposals received, but is not required to select the proposal that |
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offers the lowest total project cost. The responsible governmental |
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entity may consider the following factors: |
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(1) the proposed cost of the qualifying project; |
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(2) the general reputation, industry experience, and |
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financial capacity of the person submitting a proposal; |
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(3) the proposed design of the qualifying project; |
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(4) the eligibility of the project for accelerated |
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selection, review, and documentation timelines under the |
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responsible governmental entity's guidelines; |
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(5) comments from local citizens and affected |
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jurisdictions; |
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(6) benefits to the public; |
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(7) the person's good faith effort to comply with the |
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goals of a historically underutilized business plan; |
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(8) the person's plans to employ local contractors and |
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residents; |
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(9) for a qualifying project that involves a |
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continuing role beyond design and construction, the person's |
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proposed rate of return and opportunities for revenue sharing; and |
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(10) other criteria that the responsible governmental |
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entity considers appropriate. |
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(c) The responsible governmental entity may approve as a |
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qualifying project the development or operation of a facility |
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needed by the governmental entity, or the design or equipping of a |
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qualifying project, if the responsible governmental entity |
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determines that the project serves the public purpose of this |
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chapter. The responsible governmental entity may determine that |
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the development or operation of the project as a qualifying project |
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serves the public purpose if: |
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(1) there is a public need for or benefit derived from |
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the project of the type the person proposes as a qualifying project; |
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(2) the estimated cost of the project is reasonable in |
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relation to similar facilities; and |
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(3) the person's plans will result in the timely |
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development or operation of the qualifying project. |
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(d) The responsible governmental entity may charge a |
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reasonable fee to cover the costs of processing, reviewing, and |
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evaluating the proposal, including reasonable legal fees and fees |
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for financial, technical, and other necessary advisors or |
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consultants. |
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(e) The approval of a responsible governmental entity |
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described by Section 2267.001(5)(A) is subject to the private |
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entity or other person entering into an interim or comprehensive |
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agreement with the responsible governmental entity. |
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(f) On approval of the qualifying project, the responsible |
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governmental entity shall establish a date by which activities |
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related to the qualifying project must begin. The responsible |
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governmental entity may extend the date. |
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(g) The responsible governmental entity shall take action |
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appropriate under Section 552.153 to protect confidential and |
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proprietary information provided by the contracting person under an |
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agreement. |
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(h) Before entering into the negotiation of an interim or |
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comprehensive agreement, each responsible governmental entity |
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described by Section 2267.001(5)(A) must submit copies of detailed |
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proposals to the Partnership Advisory Commission in accordance with |
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Chapter 2268. |
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(i) This chapter and an interim or comprehensive agreement |
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entered into under this chapter do not enlarge, diminish, or affect |
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any authority a responsible governmental entity has to take action |
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that would impact the debt capacity of this state. |
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Sec. 2267.054. SERVICE CONTRACTS. A responsible |
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governmental entity may contract with a contracting person for the |
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delivery of services to be provided as part of a qualifying project |
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in exchange for service payments and other consideration as the |
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governmental entity considers appropriate. |
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Sec. 2267.055. AFFECTED JURISDICTIONS. (a) A person |
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submitting a proposal to a responsible governmental entity under |
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Section 2267.053 shall notify each affected jurisdiction by |
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providing a copy of its proposal to the affected jurisdiction. |
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(b) Not later than the 60th day after the date an affected |
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jurisdiction receives the notice required by Subsection (a), the |
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affected jurisdiction that is not the responsible governmental |
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entity for the respective qualifying project shall submit in |
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writing to the responsible governmental entity any comments the |
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affected jurisdiction has on the proposed qualifying project and |
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indicate whether the facility or project is compatible with the |
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local comprehensive plan, local infrastructure development plans, |
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the capital improvements budget, or other government spending plan. |
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The responsible governmental entity shall consider the submitted |
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comments before entering into a comprehensive agreement with a |
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contracting person. |
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Sec. 2267.056. DEDICATION AND CONVEYANCE OF PUBLIC |
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PROPERTY. (a) After obtaining any appraisal of the property |
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interest that is required under other law in connection with the |
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conveyance, a governmental entity may dedicate any property |
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interest, including land, improvements, and tangible personal |
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property, for public use in a qualifying project if the |
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governmental entity finds that the dedication will serve the public |
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purpose of this chapter by minimizing the cost of a qualifying |
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project to the governmental entity or reducing the delivery time of |
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a qualifying project. |
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(b) In connection with a dedication under Subsection (a), a |
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governmental entity may convey any property interest, including a |
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license, franchise, easement, or another right or interest the |
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governmental entity considers appropriate, subject to the |
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conditions imposed by general law governing such conveyance and |
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subject to the rights of an existing utility under a license, |
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franchise, easement, or other right under law, to the contracting |
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person for the consideration determined by the governmental entity. |
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The consideration may include the agreement of the contracting |
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person to develop or operate the qualifying project. |
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Sec. 2267.057. POWERS AND DUTIES OF CONTRACTING PERSON. |
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(a) The contracting person has: |
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(1) the power granted by: |
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(A) general law to a person that has the same form |
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of organization as the contracting person; and |
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(B) a statute governing the business or activity |
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of the contracting person; and |
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(2) the power to: |
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(A) develop or operate the qualifying project; |
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and |
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(B) collect lease payments, impose user fees |
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subject to Subsection (b), or enter into service contracts in |
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connection with the use of the project. |
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(b) The contracting person may not impose a user fee or |
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increase the amount of a user fee until the fee or increase is |
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approved by the responsible governmental entity. |
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(c) The contracting person may own, lease, or acquire any |
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other right to use or operate the qualifying project. |
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(d) The contracting person may finance a qualifying project |
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in the amounts and on the terms determined by the contracting |
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person. The contracting person may issue debt, equity, or other |
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securities or obligations, enter into sale and leaseback |
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transactions, and secure any financing with a pledge of, security |
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interest in, or lien on any or all of its property, including all of |
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its property interests in the qualifying project. |
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(e) In operating the qualifying project, the contracting |
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person may: |
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(1) establish classifications according to reasonable |
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categories for assessment of user fees; and |
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(2) with the consent of the responsible governmental |
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entity, adopt and enforce reasonable rules for the qualifying |
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project to the same extent as the responsible governmental entity. |
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(f) The contracting person shall: |
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(1) develop or operate the qualifying project in a |
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manner that is acceptable to the responsible governmental entity |
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and in accordance with any applicable interim or comprehensive |
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agreement; |
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(2) subject to Subsection (g), keep the qualifying |
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project open for use by the public at all times, or as appropriate |
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based on the use of the project, after its initial opening on |
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payment of the applicable user fees, lease payments, or service |
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payments; |
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(3) maintain, or provide by contract for the |
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maintenance or upgrade of, the qualifying project, if required by |
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any applicable interim or comprehensive agreement; |
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(4) cooperate with the responsible governmental |
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entity to establish any interconnection with the qualifying project |
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requested by the responsible governmental entity; and |
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(5) comply with any applicable interim or |
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comprehensive agreement and any lease or service contract. |
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(g) The qualifying project may be temporarily closed |
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because of emergencies or, with the consent of the responsible |
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governmental entity, to protect public safety or for reasonable |
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construction or maintenance activities. |
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(h) This chapter does not prohibit a contracting person of a |
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qualifying project from providing additional services for the |
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qualifying project to the public or persons other than the |
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responsible governmental entity, provided that the provision of |
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additional service does not impair the contracting person's ability |
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to meet the person's commitments to the responsible governmental |
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entity under any applicable interim or comprehensive agreement. |
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Sec. 2267.058. COMPREHENSIVE AGREEMENT. (a) Before |
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developing or operating the qualifying project, the contracting |
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person must enter into a comprehensive agreement with a responsible |
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governmental entity. The comprehensive agreement shall provide |
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for: |
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(1) delivery of letters of credit or other security in |
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connection with the development or operation of the qualifying |
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project, in the forms and amounts satisfactory to the responsible |
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governmental entity, and delivery of performance and payment bonds |
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in compliance with Chapter 2253 for all construction activities; |
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(2) review of plans and specifications for the |
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qualifying project by the responsible governmental entity and |
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approval by the responsible governmental entity if the plans and |
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specifications conform to standards acceptable to the responsible |
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governmental entity, except that the contracting person may not be |
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required to complete the design of a qualifying project before the |
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execution of a comprehensive agreement; |
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(3) inspection of the qualifying project by the |
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responsible governmental entity to ensure that the contracting |
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person's activities are acceptable to the responsible governmental |
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entity in accordance with the comprehensive agreement; |
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(4) maintenance of a public liability insurance |
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policy, copies of which must be filed with the responsible |
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governmental entity accompanied by proofs of coverage, or |
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self-insurance, each in the form and amount satisfactory to the |
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responsible governmental entity and reasonably sufficient to |
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ensure coverage of tort liability to the public and project |
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employees and to enable the continued operation of the qualifying |
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project; |
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(5) monitoring of the practices of the contracting |
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person by the responsible governmental entity to ensure that the |
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qualifying project is properly maintained; |
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(6) reimbursement to be paid to the responsible |
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governmental entity for services provided by the responsible |
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governmental entity; |
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(7) filing of appropriate financial statements on a |
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periodic basis; and |
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(8) policies and procedures governing the rights and |
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responsibilities of the responsible governmental entity and the |
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contracting person if the comprehensive agreement is terminated or |
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there is a material default by the contracting person, including |
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conditions governing: |
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(A) assumption of the duties and |
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responsibilities of the contracting person by the responsible |
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governmental entity; and |
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(B) the transfer or purchase of property or other |
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interests of the contracting person to the responsible governmental |
|
entity. |
|
(b) The comprehensive agreement shall provide for any user |
|
fee, lease payment, or service payment established by agreement of |
|
the parties. In negotiating a user fee under this section, the |
|
parties shall establish a payment or fee that is the same for |
|
persons using a facility of the qualifying project under like |
|
conditions and that will not materially discourage use of the |
|
qualifying project. The execution of the comprehensive agreement |
|
or an amendment to the agreement is conclusive evidence that the |
|
user fee, lease payment, or service payment complies with this |
|
chapter. A user fee or lease payment established in the |
|
comprehensive agreement as a source of revenue may be in addition |
|
to, or in lieu of, a service payment. |
|
(c) A comprehensive agreement may include a provision that |
|
authorizes the responsible governmental entity to make grants or |
|
loans to the contracting person from money received from the |
|
federal, state, or local government or any agency or |
|
instrumentality of the government. |
|
(d) The comprehensive agreement must incorporate the duties |
|
of the contracting person under this chapter and may contain terms |
|
the responsible governmental entity determines serve the public |
|
purpose of this chapter. The comprehensive agreement may contain: |
|
(1) provisions that require the responsible |
|
governmental entity to provide notice of default and cure rights |
|
for the benefit of the contracting person and the persons specified |
|
in the agreement as providing financing for the qualifying project; |
|
(2) other lawful terms to which the contracting person |
|
and the responsible governmental entity mutually agree, including |
|
provisions regarding unavoidable delays or providing for a loan of |
|
public money to the contracting person to develop or operate one or |
|
more qualifying projects; and |
|
(3) provisions in which the authority and duties of |
|
the contracting person under this chapter cease and the qualifying |
|
project is dedicated for public use to the responsible governmental |
|
entity or, if the qualifying project was initially dedicated by an |
|
affected jurisdiction, to the affected jurisdiction. |
|
(e) Any change in the terms of the comprehensive agreement |
|
that the parties agree to must be added to the comprehensive |
|
agreement by written amendment. |
|
(f) The comprehensive agreement may provide for the |
|
development or operation of phases or segments of the qualifying |
|
project. |
|
Sec. 2267.059. INTERIM AGREEMENT. Before or in connection |
|
with the negotiation of the comprehensive agreement, the |
|
responsible governmental entity may enter into an interim agreement |
|
with the contracting person proposing the development or operation |
|
of the qualifying project. The interim agreement may: |
|
(1) authorize the contracting person to begin project |
|
phases or activities for which the contracting person may be |
|
compensated relating to the proposed qualifying project, including |
|
project planning and development, design, engineering, |
|
environmental analysis and mitigation, surveying, and financial |
|
and revenue analysis, including ascertaining the availability of |
|
financing for the proposed facility or facilities of the qualifying |
|
project; |
|
(2) establish the process and timing of the |
|
negotiation of the comprehensive agreement; and |
|
(3) contain any other provision related to any aspect |
|
of the development or operation of a qualifying project that the |
|
parties consider appropriate. |
|
Sec. 2267.060. FEDERAL, STATE, AND LOCAL ASSISTANCE. |
|
(a) The contracting person and the responsible governmental |
|
entity may use any funding resources that are available to the |
|
parties, including: |
|
(1) accessing any designated trust funds; and |
|
(2) borrowing or accepting grants from any state |
|
infrastructure bank. |
|
(b) The responsible governmental entity may take any action |
|
to obtain federal, state, or local assistance for a qualifying |
|
project that serves the public purpose of this chapter and may enter |
|
into any contracts required to receive the assistance. |
|
(c) If the responsible governmental entity is a state |
|
agency, any money received from the state or federal government or |
|
any agency or instrumentality of the state or federal government is |
|
subject to appropriation by the legislature. |
|
(d) The responsible governmental entity may determine that |
|
it serves the public purpose of this chapter for all or part of the |
|
costs of a qualifying project to be directly or indirectly paid from |
|
the proceeds of a grant or loan made by the local, state, or federal |
|
government or any agency or instrumentality of the government. |
|
Sec. 2267.0605. PERFORMANCE AND PAYMENT BONDS REQUIRED. |
|
(a) The construction, remodel, or repair of a qualifying project |
|
may be performed only after performance and payment bonds for the |
|
construction, remodel, or repair have been executed in compliance |
|
with Chapter 2253 regardless of whether the qualifying project is |
|
on public or private property or is publicly or privately owned. |
|
(b) For purposes of this section, a qualifying project is |
|
considered a public work under Chapter 2253 and the responsible |
|
governmental entity shall assume the obligations and duties of a |
|
governmental entity under that chapter. The obligee under a |
|
performance bond under this section may be a public entity, a |
|
private person, or an entity consisting of both a public entity and |
|
a private person. |
|
Sec. 2267.061. MATERIAL DEFAULT; REMEDIES. (a) If the |
|
contracting person commits a material default, the responsible |
|
governmental entity may assume the responsibilities and duties of |
|
the contracting person of the qualifying project. If the |
|
responsible governmental entity assumes the responsibilities and |
|
duties of the contracting person, the responsible governmental |
|
entity has all the rights, title, and interest in the qualifying |
|
project, subject to any liens on revenue previously granted by the |
|
contracting person to any person providing financing for the |
|
project. |
|
(b) A responsible governmental entity that has the power of |
|
eminent domain under state law may exercise that power to acquire |
|
the qualifying project in the event of a material default by the |
|
contracting person. Any person who has provided financing for the |
|
qualifying project, and the contracting person to the extent of its |
|
capital investment, may participate in the eminent domain |
|
proceedings with the standing of a property owner. |
|
(c) The responsible governmental entity may terminate, with |
|
cause, any applicable interim or comprehensive agreement and |
|
exercise any other rights and remedies available to the |
|
governmental entity at law or in equity. |
|
(d) The responsible governmental entity may make any |
|
appropriate claim under the letters of credit or other security or |
|
the performance and payment bonds required by Section |
|
2267.058(a)(1). |
|
(e) If the responsible governmental entity elects to assume |
|
the responsibilities and duties for a qualifying project under |
|
Subsection (a), the responsible governmental entity may: |
|
(1) develop or operate the qualifying project; |
|
(2) impose user fees; |
|
(3) impose and collect lease payments for the use of |
|
the project; and |
|
(4) comply with any applicable contract to provide |
|
services. |
|
(f) The responsible governmental entity shall collect and |
|
pay to secured parties any revenue subject to a lien to the extent |
|
necessary to satisfy the contracting person's obligations to |
|
secured parties, including the maintenance of reserves. The liens |
|
shall be correspondingly reduced and, when paid off, released. |
|
(g) Before any payment is made to or for the benefit of a |
|
secured party, the responsible governmental entity may use revenue |
|
to pay the current operation and maintenance costs of the |
|
qualifying project, including compensation to the responsible |
|
governmental entity for its services in operating and maintaining |
|
the qualifying project. The right to receive any payment is |
|
considered just compensation for the qualifying project. |
|
(h) The full faith and credit of the responsible |
|
governmental entity may not be pledged to secure any financing of |
|
the contracting person that was assumed by the governmental entity |
|
when the governmental entity assumed responsibility for the |
|
qualifying project. |
|
Sec. 2267.062. EMINENT DOMAIN. (a) At the request of the |
|
contracting person, the responsible governmental entity may |
|
exercise any power of eminent domain that it has under law to |
|
acquire any land or property interest to the extent that the |
|
responsible governmental entity dedicates the land or property |
|
interest to public use and finds that the action serves the public |
|
purpose of this chapter. |
|
(b) Any amounts to be paid in any eminent domain proceeding |
|
shall be paid by the contracting person. |
|
Sec. 2267.063. AFFECTED FACILITY OWNER. (a) The |
|
contracting person and each facility owner, including a public |
|
utility, a public service company, or a cable television provider, |
|
whose facilities will be affected by a qualifying project shall |
|
cooperate fully in planning and arranging the manner in which the |
|
facilities will be affected. |
|
(b) The contracting person and responsible governmental |
|
entity shall ensure that a facility owner whose facility will be |
|
affected by a qualifying project does not suffer a disruption of |
|
service as a result of the construction or improvement of the |
|
qualifying project. |
|
(c) A governmental entity possessing the power of eminent |
|
domain may exercise that power in connection with the relocation of |
|
facilities affected by the qualifying project or facilities that |
|
must be relocated to the extent that the relocation is necessary or |
|
desirable by construction of, renovation to, or improvements to the |
|
qualifying project, which includes construction of, renovation to, |
|
or improvements to temporary facilities to provide service during |
|
the period of construction or improvement. The governmental entity |
|
shall exercise its power of eminent domain to the extent required to |
|
ensure an affected facility owner does not suffer a disruption of |
|
service as a result of the construction or improvement of the |
|
qualifying project during the construction or improvement or after |
|
the qualifying project is completed or improved. |
|
(d) The contracting person shall pay any amount owed for the |
|
crossing, constructing, or relocating of facilities. |
|
Sec. 2267.064. POLICE POWERS; VIOLATIONS OF LAW. A peace |
|
officer of this state or of any affected jurisdiction has the same |
|
powers and jurisdiction within the area of the qualifying project |
|
as the officer has in the officer's area of jurisdiction. The |
|
officer may access the qualifying project at any time to exercise |
|
the officer's powers and jurisdiction. |
|
Sec. 2267.065. PROCUREMENT GUIDELINES. (a) Chapters |
|
2155, 2156, and 2166, any interpretations, rules, or guidelines of |
|
the comptroller and the Texas Facilities Commission, and |
|
interpretations, rules, or guidelines developed under Chapter 2262 |
|
do not apply to a qualifying project under this chapter. |
|
(b) A responsible governmental entity may enter into a |
|
comprehensive agreement only in accordance with guidelines that |
|
require the contracting person to design and construct the |
|
qualifying project in accordance with procedures that do not |
|
materially conflict with those specified in: |
|
(1) Section 2166.2531; |
|
(2) Section 44.036, Education Code; |
|
(3) Section 51.780, Education Code; |
|
(4) Section 271.119, Local Government Code; or |
|
(5) Subchapter J, Chapter 271, Local Government Code, |
|
for civil works projects as defined by Section 271.181(2), Local |
|
Government Code. |
|
(c) This chapter does not authorize a responsible |
|
governmental entity or a contracting person to obtain professional |
|
services through any process except in accordance with Subchapter |
|
A, Chapter 2254. |
|
(d) Identified team members, including the architect, |
|
engineer, or builder, may not be substituted or replaced once a |
|
project is approved and an interim or comprehensive agreement is |
|
executed without the written approval of the responsible |
|
governmental entity. |
|
Sec. 2267.066. POSTING OF PROPOSALS; PUBLIC COMMENT; PUBLIC |
|
ACCESS TO PROCUREMENT RECORDS. (a) Not later than the 10th day |
|
after the date a responsible governmental entity accepts a proposal |
|
submitted in accordance with Section 2267.053(a) or (b), the |
|
responsible governmental entity shall provide notice of the |
|
proposal as follows: |
|
(1) for a responsible governmental entity described by |
|
Section 2267.001(5)(A), by posting the proposal on the entity's |
|
Internet website; and |
|
(2) for a responsible governmental entity described by |
|
Section 2267.001(5)(B), by: |
|
(A) posting a copy of the proposal on the |
|
entity's Internet website; or |
|
(B) publishing in a newspaper of general |
|
circulation in the area in which the qualifying project is to be |
|
performed a summary of the proposal and the location where copies of |
|
the proposal are available for public inspection. |
|
(b) The responsible governmental entity shall make |
|
available for public inspection at least one copy of the proposal. |
|
This section does not prohibit the responsible governmental entity |
|
from posting the proposal in another manner considered appropriate |
|
by the responsible governmental entity to provide maximum notice to |
|
the public of the opportunity to inspect the proposal. |
|
(c) Trade secrets, financial records, or other records of |
|
the contracting person excluded from disclosure under Section |
|
552.101 may not be posted or made available for public inspection |
|
except as otherwise agreed to by the responsible governmental |
|
entity and the contracting person. |
|
(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. |
|
(e) On completion of the negotiation phase for the |
|
development of an interim or comprehensive agreement and before an |
|
interim agreement or comprehensive agreement is entered into, a |
|
responsible governmental entity must make available the proposed |
|
agreement in a manner provided by Subsection (a) or (b). |
|
(f) A responsible governmental entity that has entered into |
|
an interim agreement or comprehensive agreement shall make |
|
procurement records available for public inspection on request. |
|
For purposes of this subsection, procurement records do not include |
|
the trade secrets of the contracting person or financial records, |
|
including balance sheets or financial statements of the contracting |
|
person, that are not generally available to the public through |
|
regulatory disclosure or other means. |
|
(g) Cost estimates relating to a proposed procurement |
|
transaction prepared by or for a responsible governmental entity |
|
are not open to public inspection. |
|
(h) Any inspection of procurement transaction records under |
|
this section is subject to reasonable restrictions to ensure the |
|
security and integrity of the records. |
|
(i) This section applies to any accepted proposal |
|
regardless of whether the process of bargaining results in an |
|
interim or comprehensive agreement. |
|
CHAPTER 2268. PARTNERSHIP ADVISORY COMMISSION |
|
SUBCHAPTER A. GENERAL PROVISIONS |
|
Sec. 2268.001. DEFINITIONS. In this chapter: |
|
(1) "Commission" means the Partnership Advisory |
|
Commission. |
|
(2) "Comprehensive agreement" has the meaning |
|
assigned by Section 2267.001. |
|
(3) "Detailed proposal" means a proposal for a |
|
qualifying project accepted by a responsible governmental entity |
|
beyond a conceptual level of review that defines and establishes |
|
periods related to fixing costs, payment schedules, financing, |
|
deliverables, and project schedule. |
|
(4) "Interim agreement" has the meaning assigned by |
|
Section 2267.001. |
|
(5) "Qualifying project" has the meaning assigned by |
|
Section 2267.001. |
|
(6) "Responsible governmental entity" has the meaning |
|
assigned by Section 2267.001. |
|
Sec. 2268.002. APPLICABILITY. This chapter applies only to |
|
responsible governmental entities described by Section |
|
2267.001(5)(A). |
|
[Sections 2268.003-2268.050 reserved for expansion] |
|
SUBCHAPTER B. COMMISSION |
|
Sec. 2268.051. ESTABLISHMENT OF COMMISSION. The |
|
Partnership Advisory Commission is an advisory commission in the |
|
legislative branch that advises responsible governmental entities |
|
described by Section 2267.001(5)(A) on proposals received under |
|
Chapter 2267. |
|
Sec. 2268.052. COMPOSITION AND TERMS. (a) The commission |
|
consists of the following 11 members: |
|
(1) the chair of the House Appropriations Committee or |
|
the chair's designee; |
|
(2) 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) three senators appointed by the lieutenant |
|
governor; and |
|
(5) three representatives of the executive branch, |
|
appointed by the governor. |
|
(b) The legislative members serve on the commission until |
|
the expiration of their terms of office or until their successors |
|
qualify. |
|
(c) The members appointed by the governor serve at the will |
|
of the governor. |
|
Sec. 2268.053. PRESIDING OFFICER. The members of the |
|
commission shall elect from among the legislative members a |
|
presiding officer and an assistant presiding officer to serve |
|
two-year terms. |
|
Sec. 2268.054. COMPENSATION; REIMBURSEMENT. A member of |
|
the commission is not entitled to compensation for service on the |
|
commission but is entitled to reimbursement for all reasonable and |
|
necessary expenses incurred in performing duties as a member. |
|
Sec. 2268.055. MEETINGS. The commission shall hold |
|
meetings quarterly or on the call of the presiding officer. |
|
Sec. 2268.056. ADMINISTRATIVE, LEGAL, RESEARCH, TECHNICAL, |
|
AND OTHER SUPPORT. (a) The legislative body that the presiding |
|
officer serves shall provide administrative staff support for the |
|
commission. |
|
(b) The Texas Legislative Council shall provide legal, |
|
research, and policy analysis services to the commission. |
|
(c) The staffs of the House Appropriations Committee, |
|
Senate Finance Committee, and comptroller shall provide technical |
|
assistance. |
|
(d) The comptroller or a state agency shall provide |
|
additional assistance as needed. |
|
Sec. 2268.057. COMMISSION PROCEEDINGS. A copy of the |
|
proceedings of the commission shall be filed with the legislative |
|
body that the presiding officer serves. |
|
Sec. 2268.058. SUBMISSION OF DETAILED PROPOSALS FOR |
|
QUALIFYING PROJECTS; EXEMPTION; COMMISSION REVIEW. (a) Before |
|
beginning to negotiate an interim or comprehensive agreement, each |
|
responsible governmental entity receiving a detailed proposal for a |
|
qualifying project must provide copies of the proposal to: |
|
(1) the presiding officer of the commission; and |
|
(2) the chairs of the House Appropriations Committee |
|
and Senate Finance Committee or their designees. |
|
(b) The following qualifying projects are not subject to |
|
review by the commission: |
|
(1) any proposed qualifying project with a total cost |
|
of less than $5 million; and |
|
(2) any proposed qualifying project with a total cost |
|
of more than $5 million but less than $50 million for which money |
|
has been specifically appropriated as a public-private partnership |
|
in the General Appropriations Act. |
|
(c) The commission may undertake additional reviews of any |
|
qualifying project that will be completed in phases and for which an |
|
appropriation has not been made for any phase other than the current |
|
phase of the project. |
|
(d) Not later than the 10th day after the date the |
|
commission receives a complete copy of the detailed proposal for a |
|
qualifying project, the commission shall determine whether to |
|
accept or decline the proposal for review and notify the |
|
responsible governmental entity of the commission's decision. |
|
(e) If the commission accepts a proposal for review, the |
|
commission shall provide its findings and recommendations to the |
|
responsible governmental entity not later than the 45th day after |
|
the date the commission receives complete copies of the detailed |
|
proposal. If the commission does not provide its findings or |
|
recommendations to the responsible governmental entity by that |
|
date, the commission is considered to have declined review of the |
|
proposal and to not have made any findings or recommendations on the |
|
proposal. |
|
(f) The responsible governmental entity on request of the |
|
commission shall provide any additional information regarding a |
|
qualifying project reviewed by the commission if the information is |
|
available to or can be obtained by the responsible governmental |
|
entity. |
|
(g) The commission shall review accepted detailed proposals |
|
and provide findings and recommendations to the responsible |
|
governmental entity that include: |
|
(1) a determination on whether the terms of the |
|
proposal and proposed qualifying project create state |
|
tax-supported debt, taking into consideration the specific |
|
findings of the comptroller with respect to the recommendation; |
|
(2) an analysis of the potential financial impact of |
|
the qualifying project; |
|
(3) a review of the policy aspects of the detailed |
|
proposal and the qualifying project; and |
|
(4) proposed general business terms. |
|
(h) Review by the commission does not constitute approval of |
|
any appropriations necessary to implement a subsequent interim or |
|
comprehensive agreement. |
|
(i) Except as provided by Subsection (e), the responsible |
|
governmental entity may not begin negotiation of an interim or |
|
comprehensive agreement until the commission has submitted its |
|
recommendations or declined to accept the detailed proposals for |
|
review. |
|
(j) Not later than the 30th day before the date a |
|
comprehensive or interim agreement is executed, the responsible |
|
governmental entity shall submit to the commission and the chairs |
|
of the House Appropriations Committee and Senate Finance Committee |
|
or their designees: |
|
(1) a copy of the proposed interim or comprehensive |
|
agreement; and |
|
(2) a report describing the extent to which the |
|
commission's recommendations were addressed in the proposed |
|
interim or comprehensive agreement. |
|
Sec. 2268.059. CONFIDENTIALITY OF CERTAIN RECORDS |
|
SUBMITTED TO COMMISSION. Records and information afforded |
|
protection under Section 552.153 that are provided by a responsible |
|
governmental entity to the commission shall continue to be |
|
protected from disclosure when in the possession of the commission. |
|
SECTION 2. Subchapter C, Chapter 552, Government Code, is |
|
amended by adding Section 552.153 to read as follows: |
|
Sec. 552.153. PROPRIETARY RECORDS AND TRADE SECRETS |
|
INVOLVED IN CERTAIN PARTNERSHIPS. (a) In this section, "affected |
|
jurisdiction," "comprehensive agreement," "contracting person," |
|
"interim agreement," "qualifying project," and "responsible |
|
governmental entity" have the meanings assigned those terms by |
|
Section 2267.001. |
|
(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 contracting person |
|
to a responsible governmental entity or affected jurisdiction under |
|
Chapter 2267 and contain: |
|
(A) trade secrets of the contracting person; |
|
(B) financial records of the contracting person, |
|
including balance sheets and financial statements, that are not |
|
generally available to the public through regulatory disclosure or |
|
other means; or |
|
(C) other information submitted by the |
|
contracting person that, if made public before the execution of an |
|
interim or comprehensive agreement, would adversely affect the |
|
financial interest or bargaining position of the responsible |
|
governmental entity or the person. |
|
(c) Except as specifically provided by Subsection (b), this |
|
section does not authorize the withholding of information |
|
concerning: |
|
(1) the terms of any interim or comprehensive |
|
agreement, service contract, lease, partnership, or agreement of |
|
any kind entered into by the responsible governmental entity and |
|
the contracting person or the terms of any financing arrangement |
|
that involves the use of any public money; or |
|
(2) the performance of any person developing or |
|
operating a qualifying project under Chapter 2267. |
|
SECTION 3. This Act takes effect September 1, 2011. |
|
|
|
|
|
|
|
|
______________________________ |
______________________________ |
|
President of the Senate |
Speaker of the House |
|
|
I hereby certify that S.B. No. 1048 passed the Senate on |
|
April 19, 2011, by the following vote: Yeas 30, Nays 1; and that |
|
the Senate concurred in House amendments on May 27, 2011, by the |
|
following vote: Yeas 30, Nays 1. |
|
|
|
|
______________________________ |
|
Secretary of the Senate |
|
|
I hereby certify that S.B. No. 1048 passed the House, with |
|
amendments, on May 25, 2011, by the following vote: Yeas 114, |
|
Nays 28, two present not voting. |
|
|
|
|
______________________________ |
|
Chief Clerk of the House |
|
|
|
|
|
Approved: |
|
|
|
______________________________ |
|
Date |
|
|
|
|
|
______________________________ |
|
Governor |