83S10169 JAM-D

By: Harper-Brown H.B. No. 28

A BILL TO BE ENTITLED

AN ACT

relating to the authority of the Texas Department of Transportation to enter into availability payment agreements for the design, development, financing, construction, maintenance, or operation of a highway project.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Chapter 223, Transportation Code, is amended by adding Subchapter G to read as follows:

SUBCHAPTER G. AVAILABILITY PAYMENT AGREEMENTS

Sec. 223.301. AUTHORITY. (a) The department may enter into an agreement with a private entity for the design, development, financing, construction, maintenance, or operation of a toll or nontoll facility on the state highway system under which the private entity is compensated through milestone or periodic payments based on the private entity's compliance with performance requirements defined in the agreement.

(b) Performance requirements in an agreement entered into under this chapter may include requirements relating to the availability of lanes for use by the traveling public.

(c) Subchapter A of this chapter and Chapter 2254, Government Code, do not apply to an agreement entered into under this subchapter.

Sec. 223.302. SOURCE OF PAYMENT. (a) Subject to Subsections (b) and (c), the department may use any available funds for the purpose of making a payment under an agreement entered into under this subchapter, including money in the state highway fund that is required to be used for public roadways by the Texas Constitution or federal law.

(b) The total amount of compensation paid out of the state highway fund may not exceed the amounts that are:

(1) eligible to be paid from those funds under the Texas Constitution; and

(2) incurred or are reasonably anticipated to be incurred by the private entity during the term of the agreement.

(c) The department's obligation to make a payment is subject to the availability of funds appropriated by the legislature that may be used for that purpose or other funds that may be used for that purpose.

(d) The department may hold money that is to be used to satisfy payment obligations of the department under an agreement entered into under this subchapter, including money from the state highway fund that is to be used for payments under this section, in a reserve fund or trust account created under an agreement with a commercial bank, depository trust company, or other entity.

Sec. 223.303. STIPULATED AMOUNT FOR UNSUCCESSFUL PROPOSERS. (a) The department may pay an unsuccessful proposer that submits a responsive proposal to a request for proposals for an agreement under this subchapter a stipulated amount for the work product contained in the proposal. The stipulated amount must be specified in the request for proposals and may not exceed the value of any work product contained in the proposal that the department determines can be used by the department in the performance of the department's functions.

(b) After payment of the stipulated amount, the department and the unsuccessful proposer jointly own the rights to the work product contained in the unsuccessful proposal, including the technologies, techniques, methods, processes, ideas, and information contained in the proposal, and the department may use that work product.

(c) The use by the department or the unsuccessful proposer of any portion of the work product contained in an unsuccessful proposal is at the sole risk of the entity using the work product and does not confer on the other entity liability or a right to compensation.

Sec. 223.304. PERFORMANCE OR PAYMENT BOND. (a) The department shall require a private entity entering into an agreement with the department under this subchapter to provide:

(1) a performance and payment bond; or

(2) an alternative form of security authorized by Section 223.205.

(b) Except as provided by Subsection (c), a performance and payment bond or alternative form of security shall be in an amount equal to the cost of constructing the facility.

(c) If the department determines that it is impracticable for a private entity to provide security in the amount described by Subsection (b), the department shall set the security in an amount sufficient to:

(1) ensure the proper performance of the agreement; and

(2) protect:

(A) the department; and

(B) persons who have a direct contractual relationship with the private entity or a subcontractor of the private entity to supply labor or material.

Sec. 223.305. OTHER TERMS. An agreement entered into under this subchapter may include any provision that the department considers appropriate, including a provision:

(1) for the purchase by the department, under terms agreed to by the parties, of the interest of the private entity in the agreement and related property, including any interest in a highway or other facility designed, developed, financed, constructed, maintained, or operated under the agreement;

(2) that establishes the purchase price, or the methodology to be used to determine the purchase price, for the interest of the private entity in the agreement and related property; or

(3) for the payment of obligations incurred under the agreement, including any obligation to pay the purchase price for the interest of the private entity in the agreement and related property, from any lawfully available source, including the securing of the obligation by a pledge of revenues of the commission or the department derived from the facility that is subject to the agreement, with the priority for the pledge set by the department.

Sec. 223.306. CONFIDENTIALITY OF INFORMATION. (a) To encourage private entities to submit proposals under this subchapter, the following information is confidential, is not subject to disclosure, inspection, or copying under Chapter 552, Government Code, and is not subject to disclosure, discovery, subpoena, or other means of legal compulsion for its release until a final contract for a proposed project is entered into:

(1) all or part of a proposal that is submitted by a private entity for an agreement under this subchapter, except information regarding the location, scope, or limits of a proposed project and information regarding the private entity's qualifications, experience, technical competence, and capability to develop the project, unless the private entity consents to the disclosure of the information;

(2) supplemental information or material submitted by a private entity in connection with a proposal for an agreement under this subchapter, unless the private entity consents to the disclosure of the information or material; and

(3) information created or collected by the department or its agent during consideration of a proposal for an agreement under this subchapter.

(b) After the department completes its final ranking of proposals submitted under this subchapter, the final rankings of each proposal under each of the published criteria are not confidential.

Sec. 223.307. OWNERSHIP OF FACILITIES. (a) A state highway or another facility that is the subject of an availability payment agreement under this subchapter is public property and shall be owned by the department.

(b) Notwithstanding Subsection (a), the department may enter into an agreement that provides for the lease of rights-of-way, the granting of easements, the issuance of franchises, licenses, or permits, or any lawful uses to enable a private entity to construct, operate, and maintain a project, including supplemental facilities. At the termination of the agreement, the highway or other facilities are to be in a state of proper maintenance as determined by the department and shall be returned to the department in satisfactory condition at no further cost.

Sec. 223.308. RULES. The commission may adopt rules necessary to implement this subchapter. Rules adopted by the commission may include criteria for determining the most qualified entities to submit proposals, and for the award of an agreement to the private entity determined to provide the best value for the department.

SECTION 2. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect on the 91st day after the last day of the legislative session.