83R5191 YDB-D

By: Dutton H.B. No. 2107

A BILL TO BE ENTITLED

AN ACT

relating to the continuation and functions of the Texas Facilities Commission; authorizing fees.

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

SECTION 1. Section 443.007, Government Code, is amended by adding Subsection (a-1) to read as follows:

(a-1) If the board updates or modifies its long-range master plan for the preservation, maintenance, restoration, and modification of the Capitol and the Capitol grounds, the board must conform its plan to the Capitol Complex master plan prepared by the Texas Facilities Commission under Section 2166.105.

SECTION 2. Section 2152.002, Government Code, is amended to read as follows:

Sec. 2152.002. SUNSET PROVISION. The Texas Facilities [Building and Procurement] Commission is subject to Chapter 325 (Texas Sunset Act). Unless continued in existence as provided by that chapter, the commission is abolished and this subtitle, except for Chapter 2170 and Section 2157.121, expires September 1, 2021 [2013].

SECTION 3. Subchapter B, Chapter 2152, Government Code, is amended by adding Section 2152.066 to read as follows:

Sec. 2152.066. NEGOTIATED RULEMAKING AND ALTERNATIVE DISPUTE RESOLUTION POLICY. (a) The commission shall develop and implement a policy to encourage the use of:

(1) negotiated rulemaking procedures under Chapter 2008 for the adoption of commission rules; and

(2) appropriate alternative dispute resolution procedures under Chapter 2009 to assist in the resolution of internal and external disputes under the commission's jurisdiction.

(b) The commission's procedures relating to alternative dispute resolution must conform, to the extent possible, to any model guidelines issued by the State Office of Administrative Hearings for the use of alternative dispute resolution by state agencies.

(c) The commission shall:

(1) coordinate the implementation of the policy adopted under Subsection (a);

(2) provide training as needed to implement the procedures for negotiated rulemaking or alternative dispute resolution; and

(3) collect data concerning the effectiveness of those procedures.

SECTION 4. Section 2165.055, Government Code, is amended to read as follows:

Sec. 2165.055. REPORT ABOUT IMPROVEMENTS AND REPAIRS. The commission [biennially] on July 1 of each even-numbered year [December 1st] shall electronically submit a report to the governor, lieutenant governor, speaker of the house of representatives, comptroller, and Legislative Budget Board on:

(1) all improvements and repairs that have been made, with an itemized account of receipts and expenditures; and

(2) the condition of all property under its control, with an estimate of needed improvements and repairs.

SECTION 5. Section 2165.2035(e), Government Code, is amended to read as follows:

(e) On or before December 1 of each even-numbered year, the commission shall electronically submit a report to the legislature and the Legislative Budget Board describing the effectiveness of the program under this section.

SECTION 6. Section 2165.2046, Government Code, is amended to read as follows:

Sec. 2165.2046. REPORTS ON PARKING PROGRAMS. On or before December [October] 1 of each even-numbered year, the commission shall electronically submit a report to the legislature and Legislative Budget Board describing the effectiveness of parking programs developed by the commission under this subchapter. The report must, at a minimum, include:

(1) the yearly revenue generated by the programs;

(2) the yearly administrative and enforcement costs of each program;

(3) yearly usage statistics for each program; and

(4) initiatives and suggestions by the commission to:

(A) modify administration of the programs; and

(B) increase revenue generated by the programs.

SECTION 7. Chapter 2165, Government Code, is amended by adding Subchapter H to read as follows:

SUBCHAPTER H. PUBLIC AND PRIVATE FACILITIES AND INFRASTRUCTURE:

QUALIFYING PROJECTS

Sec. 2165.351. DEFINITIONS. In this subchapter:

(1) "Partnership Advisory Commission" means the Partnership Advisory Commission created by Chapter 2268.

(2) "Qualifying project" has the meaning assigned by Section 2267.001, as added by Chapter 1334 (S.B. 1048), Acts of the 82nd Legislature, Regular Session, 2011.

Sec. 2165.352. COMMISSION REVIEW GUIDELINES AND POLICIES. (a) In adopting the qualifying project review guidelines required by Section 2267.052, as added by Chapter 1334 (S.B. 1048), Acts of the 82nd Legislature, Regular Session, 2011, the commission must include review criteria and documentation to guide the initial review of each substantially complete qualifying project proposal received by the commission.

(b) The review criteria required under Subsection (a) at a minimum must include:

(1) the extent to which the qualifying project meets a public need;

(2) the extent to which the project meets the objectives and priorities of the commission and aligns with any applicable commission plans, including the Capitol Complex master plan developed under Section 2166.105;

(3) the technical and legal feasibility of the project;

(4) the adequacy of the qualifications, experience, and financial capacity of a private entity or other person submitting the proposal;

(5) any potentially unacceptable risks to this state; and

(6) whether an alternative delivery method is feasible and more effectively meets this state's goals.

(c) The commission's qualifying project review guidelines must:

(1) specify the types of professional expertise, including financial, real estate, legal, and other related expertise, needed to effectively protect this state's interest when considering and implementing a qualifying project;

(2) specify the range of professional expertise needed at each stage of the project, including proposal evaluation, financial analysis, risk allocation analysis, contract negotiation, and contract and performance monitoring, to evaluate the qualifying project proposal; and

(3) require the oversight committee established by the commission for each qualifying project to report to the commission the results of the committee's evaluation of the project, including the schedules, procedures, proposal evaluation criteria, and documentation required in the guidelines for the evaluation.

(d) The commission shall:

(1) for each qualifying project proposal, post on the commission's Internet website the oversight committee's review report and other evaluation documents; and

(2) before posting the report and documents required under Subdivision (1), redact all information included in the report and documents that is considered confidential under Section 2267.066(c).

(e) The expertise described by Subsection (c) may be provided by commission staff or outside experts.

Sec. 2165.353. QUALIFYING PROJECT FEES. (a) The commission may charge a reasonable fee to cover the costs of reviewing a qualifying project. The commission shall develop and adopt a qualifying project proposal fee schedule sufficient to cover its costs, including at a minimum the costs of processing, reviewing, and evaluating the proposals.

(b) The commission shall use the professional expertise information required under Section 2165.352(c) to determine the amount of the fee charged by the commission to review a qualifying project proposal. The amount must be reasonable in comparison to the level of professional expertise required for the project and may include the cost of staff time required to process the proposal and other direct costs.

(c) The commission may use the money from the fees collected under this section to hire or contract with persons who have the professional expertise necessary to effectively evaluate a qualifying project proposal.

Sec. 2165.354. INITIAL REVIEW OF QUALIFYING PROJECT PROPOSAL. (a) The commission staff shall conduct an initial review of each qualifying project proposal submitted to the commission and provide to commission members a summary of the review, including an analysis and recommendations.

(b) Subject to Subsection (c), the commission shall use a value for money analysis in evaluating each qualifying project proposal to:

(1) conduct a thorough risk analysis of the proposal that identifies specific risks shared between this state and the private partner and subjects the risks to negotiation in the contract;

(2) determine if the proposal is in the best long-term financial interest of this state; and

(3) determine if the project will provide a tangible public benefit to this state.

(c) If commission staff determine that a value for money analysis is not appropriate for evaluating a specific qualifying project proposal, the staff shall submit to the commission a written report stating the reasons for using an alternative analysis methodology.

(d) The commission shall coordinate with the commission's office of internal audit for review and receipt of comments on the reasonableness of the assumptions used in the value for money analysis or alternative analysis methodology used to evaluate a qualifying project proposal under this section.

Sec. 2165.355. INITIAL PUBLIC HEARING ON QUALIFYING PROJECT PROPOSAL. (a) Before submitting a detailed qualifying project proposal to the Partnership Advisory Commission as required under Section 2268.058, the commission must hold an initial public hearing on the proposal.

(b) The commission must post a copy of the detailed qualifying project proposal on the commission's Internet website before the required public hearing and, before posting the proposal, redact all information included in the proposal that is considered confidential under Section 2267.066(c).

(c) After the hearing, the commission shall:

(1) modify the proposal as the commission determines appropriate based on the public comments; and

(2) include the public comments in the documents submitted to the Partnership Advisory Commission and provide any additional information necessary for the evaluation required under Chapter 2268.

Sec. 2165.356. SUBMISSION OF QUALIFYING PROJECT CONTRACT TO CONTRACT ADVISORY TEAM. (a) Not later than the 60th day before the date the commission is scheduled to vote on approval of a qualifying project contract, the commission must submit to the Contract Advisory Team established under Subchapter C, Chapter 2262, documentation of the modifications to a proposed qualifying project made during the commission's evaluation and negotiation process for the project, including a copy of:

(1) the final draft of the contract;

(2) the detailed qualifying project proposal; and

(3) any executed interim or other agreement.

(b) The Contract Advisory Team shall review the documentation submitted under Subsection (a) and provide written comments and recommendations to the commission. The review must focus on, but not be limited to, best practices for contract management and administration.

(c) Commission staff shall provide to the commission members:

(1) a copy of the Contract Advisory Team's written comments and recommendations; and

(2) the staff's response to the comments and recommendations.

Sec. 2165.357. PROHIBITED EMPLOYMENT OF COMMISSION EMPLOYEE. (a) A commission employee may not be employed or hired by another person to perform duties that relate to the employee's specific duties in developing and implementing a qualifying project, including review, evaluation, development, and negotiation of a qualifying project proposal.

(b) The commission shall obtain from each commission employee sufficient information for the commission to determine whether:

(1) the employee is employed by another person; and

(2) a potential conflict of interest exists between the employee's commission duties and the employee's duties with the other employer.

(c) Each commission employee whose commission duties relate to a qualifying project, including long-range planning, real estate management, space management, and leasing services, shall attest that the employee is aware of and agrees to the commission's ethics and conflict-of-interest policies.

(d) To the extent the employment is authorized by commission policy, this section does not prohibit additional employment for a commission employee whose commission duties are not related to a qualifying project.

SECTION 8. Section 2166.001, Government Code, is amended by amending Subdivisions (1) and (1-a) and adding Subdivision (1-b) to read as follows:

(1) "Capitol Complex" has the meaning prescribed by Section 411.061(a)(1).

(1-a) "Commission" means the Texas Facilities Commission.

(1-b) [(1-a)] "Construction" includes acquisition and reconstruction.

SECTION 9. Section 2166.101(d), Government Code, is amended to read as follows:

(d) The commission shall summarize its findings on the status of state-owned buildings and current information on construction costs in an electronically submitted [a] report [it shall make available] to the governor, lieutenant governor, speaker of the house of representatives, comptroller, and Legislative Budget Board not later than July 1 of each even-numbered year [the legislature, and the state's budget offices].

SECTION 10. Section 2166.102(b), Government Code, is amended to read as follows:

(b) The commission shall maintain a six-year capital planning cycle and shall electronically submit [file] a master facilities plan with the governor, lieutenant governor, speaker of the house of representatives, [Governor's Office of Budget and Planning, the] Legislative Budget Board, and [the] comptroller before July 1 of each even-numbered year.

SECTION 11. Section 2166.103(b), Government Code, is amended to read as follows:

(b) Not later than July 1 of each even-numbered year [Before each legislative session], the commission shall electronically submit [send] to the governor, the lieutenant governor, the speaker of the house of representatives, the comptroller, and the Legislative Budget Board a report identifying counties in which more than 50,000 square feet of usable office space is needed and the commission's recommendations for meeting that need. The commission may recommend leasing or purchasing and renovating one or more existing buildings or constructing one or more buildings.

SECTION 12. Subchapter C, Chapter 2166, Government Code, is amended by adding Sections 2166.105, 2166.106, 2166.107, and 2166.108 to read as follows:

Sec. 2166.105. CAPITOL COMPLEX MASTER PLAN. (a) The commission shall prepare a Capitol Complex master plan that at a minimum includes:

(1) an overview and summary of the previous plans for the Capitol Complex;

(2) a stated strategic vision and long-term goals for the Capitol Complex;

(3) an analysis of state property, including buildings, in the Capitol Complex and of the extent to which this state satisfies its space needs through use of the property;

(4) in consultation with the General Land Office, an analysis of the current and forecasted real estate market conditions in the Austin area;

(5) detailed, site-specific proposals for developing state property in the Capitol Complex, including proposals on the use of property and space for public or private sector purposes;

(6) an analysis of and recommendations for building design guidelines to ensure appropriate quality in new or remodeled buildings in the Capitol Complex;

(7) an analysis of and recommendations for Capitol Complex infrastructure needs, including transportation, utilities, and parking;

(8) for projects identified in the plan, an analysis of and recommendations for financing options, including private sector participation;

(9) time frames for implementing the plan components and any projects identified in the plan;

(10) consideration of alternative options for meeting state space needs outside the Capitol Complex; and

(11) other information relevant to the Capitol Complex as the commission determines appropriate.

(b) The commission shall ensure that the General Land Office, the State Preservation Board, the Texas Historical Commission, and other relevant interested parties are included in each stage of the development of the Capitol Complex master plan.

(c) The commission shall submit to the governor, lieutenant governor, speaker of the house of representatives, comptroller, and Legislative Budget Board:

(1) not later than July 1, 2014, the initial Capitol Complex master plan; and

(2) not later than July 1 of each even-numbered year thereafter, updates to the plan.

(d) The commission shall ensure that the Capitol Complex master plan and the master facilities plan developed under Section 2166.102 do not conflict and together comprehensively address the space needs of state agencies.

Sec. 2166.106. REVIEW OF PROPOSED CAPITOL COMPLEX MASTER PLAN BY STATE PRESERVATION BOARD AND GENERAL LAND OFFICE. (a) Not later than the 90th day before the date the commission holds a public meeting to discuss a proposed Capitol Complex master plan, the commission must submit the proposed plan to the State Preservation Board and the General Land Office for review and comment.

(b) Not later than the 60th day before the date the commission holds a public meeting to discuss a proposed update to the Capitol Complex master plan, the commission must submit the proposed update to the State Preservation Board and the General Land Office for review and comment.

(c) Not later than the 90th day after the date the State Preservation Board receives from the commission a proposed Capitol Complex master plan and not later than the 60th day after the date the board receives from the commission a proposed update to the plan, the board may:

(1) by a public vote disapprove the plan or update if the board determines that the goals or recommendations in the plan or update are not in the best interest of the state or of the Capitol Complex; and

(2) submit to the commission written comments and recommended modifications to the plan or update.

(d) The proposed Capitol Complex master plan or the proposed update to the plan is considered to be approved by the State Preservation Board if the board does not hold the public vote authorized by Subsection (c) on or before the date required under that subsection.

(e) The review of the Capitol Complex master plan under this section is in addition to the review required for a proposed project under Section 443.0071.

Sec. 2166.107. COMPREHENSIVE PLANNING AND DEVELOPMENT PROCESS. (a) The commission by rule shall adopt a comprehensive process for planning and developing state property in the commission's inventory, including property in the Capitol Complex, and for assisting state agencies in space development planning for state property under Sections 2165.105 and 2165.1061.

(b) The process under this section at a minimum must include:

(1) a clear approach and specific time frames for obtaining input throughout the planning and development process from the public, interested parties, and state agencies, including the General Land Office and, for Capitol Complex property, the State Preservation Board and the Texas Historical Commission;

(2) specific schedules for providing to the commission regular updates on planning and development efforts;

(3) a public involvement policy to ensure that before the commission makes a decision on the use or development of state property the public and interested parties have the opportunity to review and comment on the commission's plans; and

(4) confidentiality policies consistent with Chapter 552.

Sec. 2166.108. COMPREHENSIVE CAPITAL IMPROVEMENT AND DEFERRED MAINTENANCE PLAN. (a) The commission shall develop a comprehensive capital improvement and deferred maintenance plan that clearly defines the capital improvement needs and critical and noncritical maintenance needs of state buildings.

(b) The comprehensive capital improvement and deferred maintenance plan must:

(1) with respect to deferred maintenance projects:

(A) list, with regular updates, deferred maintenance projects that contain critical high-priority projects and lower-priority, non-health and safety projects;

(B) state the commission's plan for addressing the projects;

(C) account for the completion of high-priority projects;

(D) estimate when the lower-priority projects may become higher-priority projects; and

(E) be modified as necessary to include additional maintenance projects;

(2) contain a list of all predictable capital improvement projects, including a time frame and a cost estimate for each project; and

(3) contain a plan, updated biennially, for responding to emergency repairs and replacements that, in consultation with the Legislative Budget Board, identifies potential sources of funds, which may include bonds and bond interest, that may be used to pay the costs of emergency repair and replacement projects.

(c) The comprehensive capital improvement and deferred maintenance plan must include for each segment of the plan described by Subsection (b) a prioritized list by state agency facility of each project that includes an estimate of the project's cost and the aggregate costs for all facility projects.

(d) The commission shall include the comprehensive capital improvement and deferred maintenance plan and regular updates to the plan in its long-range plan under Section 2166.102. The information included in the long-range plan must include the aggregate project costs for each state agency but may exclude the cost of each specific facility project.

SECTION 13. Section 31.155(d), Natural Resources Code, is amended to read as follows:

(d) The duty under this subchapter of the division to review and verify real property records and to make recommendations regarding real property and of the commissioner to prepare a report involving real property does not apply to:

(1) the real property of an institution of higher education;

(2) the real property that is part of a fund created or specifically authorized by the constitution of this state and that is administered by or with the assistance of the land office;

(3) the real property of the Employees Retirement System of Texas; [and]

(4) the real property of the Teacher Retirement System of Texas; and

(5) the real property included in the Capitol Complex as defined by Section 411.061(a)(1), Government Code.

SECTION 14. The Texas Facilities Commission shall:

(1) not later than January 1, 2014:

(A) develop the qualifying project review guidelines required by Section 2165.352, Government Code, as added by this Act;

(B) develop the qualifying project proposal fee schedule required by Section 2165.353, Government Code, as added by this Act; and

(C) adopt the comprehensive planning and development process required by Section 2166.107, Government Code, as added by this Act; and

(2) not later than July 1, 2014:

(A) prepare the Capitol Complex master plan required by Section 2166.105, Government Code, as added by this Act, and submit the plan as required by that section; and

(B) prepare the comprehensive capital improvement and deferred maintenance plan required by Section 2166.108, Government Code, as added by this Act.

SECTION 15. 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 September 1, 2013.