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A BILL TO BE ENTITLED
|
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AN ACT
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relating to public and private facilities and infrastructure. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 2166.001, Government Code, is amended by |
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amending Subdivisions (1) and (1-a) and adding Subdivision (1-b) to |
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read as follows: |
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(1) "Capitol Complex" has the meaning prescribed by |
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Section 411.061(a)(1). |
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(1-a) "Commission" means the Texas Facilities |
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Commission. |
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(1-b) [(1-a)] "Construction" includes acquisition and |
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reconstruction. |
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SECTION 2. Section 2267.001, Government Code, as added by |
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Chapter 1334 (S.B. 1048), Acts of the 82nd Legislature, Regular |
|
Session, 2011, is amended by adding Subdivision (1-a) to read as |
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follows: |
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(1-a) "Commission" means the Partnership Advisory |
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Commission established under Chapter 2268. |
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SECTION 3. Subchapter A, Chapter 2267, Government Code, as |
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added by Chapter 1334 (S.B. 1048), Acts of the 82nd Legislature, |
|
Regular Session, 2011, is amended by adding Sections 2267.005, |
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2267.006, 2267.007, and 2267.008 to read as follows: |
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Sec. 2267.005. APPLICABILITY OF MUNICIPAL ZONING |
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REGULATIONS. (a) Except as provided by Subsection (b) and Section |
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2267.006, a qualifying project that is to be performed or located in |
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a municipality must comply with the zoning and land use regulations |
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of the municipality. |
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(b) This section does not apply to a qualifying project |
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that: |
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(1) uses a building, other structure, or land under |
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the control, administration, or jurisdiction of a state agency for |
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the same public purposes for which the state agency is authorized |
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under the governing law that established the agency to use the |
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building, structure, or land; or |
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(2) is located within the Capitol Complex, as defined |
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by Section 411.061(a)(1). |
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Sec. 2267.006. SPECIAL BOARD OF REVIEW. (a) If a |
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qualifying project does not comply with the zoning and land use |
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regulations of a municipality as required by Section 2267.005 and |
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the municipality denies a rezoning request for the qualifying |
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project, the matter may be appealed to a special board of review |
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consisting of the following members: |
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(1) the land commissioner; |
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(2) the administrative head of the governing body of |
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the responsible governmental entity; |
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(3) the mayor of the municipality; |
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(4) the county judge of the county in which the |
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municipality is located; |
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(5) one state senator selected by the lieutenant |
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governor; |
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(6) one member of the house of representatives |
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selected by the speaker of the house; and |
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(7) the commission member appointed by the governor. |
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(b) The land commissioner shall serve as presiding officer |
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of the special board of review. |
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(c) The special board of review shall conduct one or more |
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public hearings to consider the proposed qualifying project. The |
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hearings must be conducted in accordance with rules adopted by the |
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General Land Office for conduct of special review. The hearings are |
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not considered a contested case proceeding under Chapter 2001. |
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(d) If after the hearings, the special board of review |
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determines that the zoning and land use regulations are detrimental |
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to the best interest of this state, the special board of review |
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shall issue an order establishing a development plan to govern the |
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use of the real property related to the qualifying project. |
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Development of the real property must be in accordance with the plan |
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and comply with all applicable municipal regulations, orders, or |
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ordinances except as specifically identified by the order of the |
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special board of review. If substantial progress is not made in |
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implementing the qualifying project before the fifth anniversary of |
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the date the development plan is adopted by the special board of |
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review, the municipal zoning and land use regulations become |
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applicable to development of the property, unless the special board |
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of review adopts a new development plan. |
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(e) A development plan adopted by the special board of |
|
review and any plan accepted by a responsible governmental entity |
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is final and binding on the state, the responsible governmental |
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entity, lessees, successors in interest and assigns, and the |
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affected municipality unless revised by the special board of |
|
review. |
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(f) A responsible governmental entity, builder, developer, |
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or any other person may not modify the development plan without |
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specific approval by the special board of review. |
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Sec. 2267.007. CONFLICT OF INTEREST. An employee of a |
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responsible governmental entity or a person related to the employee |
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within the second degree by consanguinity or affinity, as |
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determined under Chapter 573, may not accept money, a financial |
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benefit, or other consideration from a contracting person that has |
|
entered into a comprehensive agreement with the responsible |
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governmental entity. |
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Sec. 2267.008. PROHIBITED EMPLOYMENT WITH FORMER OR RETIRED |
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GOVERNMENTAL ENTITY EMPLOYEES. (a) A contracting person may not |
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employ or enter into a professional services contract or a |
|
consulting services contract under Chapter 2254 with a former or |
|
retired employee of the responsible governmental entity with which |
|
the person has entered into a comprehensive agreement before the |
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first anniversary of the date on which the former or retired |
|
employee terminates employment with the entity. |
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(b) This section does not prohibit the contracting person |
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from entering into a professional services contract with a |
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corporation, firm, or other business organization that employs a |
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former or retired employee of the responsible governmental entity |
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before the first anniversary of the date the former or retired |
|
employee terminates employment with the entity if the former or |
|
retired employee does not perform services for the corporation, |
|
firm, or other business organization under the comprehensive |
|
agreement with the responsible governmental entity that the former |
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or retired employee worked on before terminating employment with |
|
the entity. |
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SECTION 4. Section 2267.051, Government Code, as added by |
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Chapter 1334 (S.B. 1048), Acts of the 82nd Legislature, Regular |
|
Session, 2011, is amended by amending Subsection (a) and adding |
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Subsection (a-1) to read as follows: |
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(a) Except as provided by Subsection (a-1), a [A] person may |
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not develop or operate a qualifying project unless the person |
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obtains the approval of and contracts with the responsible |
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governmental entity under this chapter. The person may initiate |
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the approval process by submitting a proposal requesting approval |
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under Section 2267.053(a), or the responsible governmental entity |
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may request proposals or invite bids under Section 2267.053(b). |
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(a-1) A person may not develop or operate a qualifying |
|
project on property located within the Capitol Complex, as defined |
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by Section 411.061(a)(1), unless the person obtains the approval of |
|
and contracts with the responsible governmental entity under this |
|
chapter. The person may not initiate the approval process by |
|
submitting a proposal requesting approval under Section |
|
2267.053(a). However, the responsible governmental entity may |
|
request proposals or invite bids under Section 2267.053(b). |
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SECTION 5. Section 2267.052, Government Code, as added by |
|
Chapter 1334 (S.B. 1048), Acts of the 82nd Legislature, Regular |
|
Session, 2011, is amended by amending Subsections (b) and (c) and |
|
adding Subsection (d) to read as follows: |
|
(b) The guidelines for a responsible governmental entity |
|
described by Section 2267.001(5)(A) must: |
|
(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 |
|
availability; |
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(2) provide reasonable criteria for choosing among |
|
competing proposals; |
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(3) contain suggested timelines for selecting |
|
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 |
|
proposals involving a qualifying project considered a priority by |
|
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 |
|
functionality and services similar to the functionality and |
|
services to be provided by the proposed project are already |
|
available in the private market; and |
|
(D) consideration of the results of all studies |
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and analyses related to the proposed qualifying project; |
|
(6) allow the responsible governmental entity to |
|
consider the nonfinancial benefits of a proposed qualifying |
|
project; |
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(7) include criteria for: |
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(A) the qualifying project, including the scope, |
|
costs, and duration of the project and the involvement or impact of |
|
the project on multiple public entities; |
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(B) the creation of and the responsibilities of |
|
an oversight committee, with members representing the responsible |
|
governmental entity, that acts as an advisory committee to review |
|
the terms of any proposed interim or comprehensive agreement; and |
|
(C) compliance with the requirements of Chapter |
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2268; |
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(8) require the responsible governmental entity to |
|
analyze the adequacy of the information to be released by the entity |
|
when seeking competing proposals and require that the entity |
|
provide more detailed information, if the entity determines |
|
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 |
|
approvals required to ensure that the responsible governmental |
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entity considers the extent of competition before selecting |
|
proposals and negotiating an interim or comprehensive agreement; |
|
and |
|
(10) require the posting and publishing of public |
|
notice of a proposal requesting approval of a qualifying project, |
|
including: |
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(A) specific information and documentation |
|
regarding the nature, timing, and scope of the qualifying project, |
|
as required under Section 2267.053(a); |
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(B) a reasonable period, as determined by the |
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responsible governmental entity, of not less than 45 days or more |
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than 180 days, or a longer period specified by the governing body of |
|
the responsible governmental entity to accommodate a large-scale |
|
project, [as determined by the responsible governmental entity,] to |
|
encourage competition and partnerships with private entities and |
|
other persons in accordance with the goals of this chapter, during |
|
which the responsible governmental entity must accept submission of |
|
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 |
|
the state's official Internet website. |
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(c) The guidelines of a responsible governmental entity |
|
described by Section 2267.001(5)(B) must include: |
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(1) [may include] the provisions required under |
|
Subsection (b); and |
|
(2) [must include] a requirement that the governmental |
|
entity engage the services of qualified professionals, including an |
|
architect, professional engineer, or certified public accountant, |
|
not otherwise employed by the governmental entity, to provide |
|
independent analyses regarding the specifics, advantages, |
|
disadvantages, and long-term and short-term costs of any proposal |
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requesting approval of a qualifying project unless the governing |
|
body of the governmental entity determines that the analysis of the |
|
proposal is to be performed by employees of the governmental |
|
entity. |
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(d) A responsible governmental entity described by Section |
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2267.001(5)(A) shall submit a copy of the guidelines adopted by the |
|
entity under this section to the commission for approval by the |
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commission. The commission shall prescribe the procedure for |
|
submitting the guidelines for review under this section. The |
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governmental entity may not request or consider a proposal for a |
|
qualifying project until the guidelines are approved by the |
|
commission. |
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SECTION 6. Section 2267.053, Government Code, as added by |
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Chapter 1334 (S.B. 1048), Acts of the 82nd Legislature, Regular |
|
Session, 2011, is amended by amending Subsections (a) and (b) and |
|
adding Subsections (a-1), (b-1), and (b-2) to read as follows: |
|
(a) A private entity or other person may submit a proposal |
|
requesting approval of a qualifying project by the responsible |
|
governmental entity. The proposal must be accompanied by the |
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following, unless waived by the responsible governmental entity: |
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(1) a topographic map, with a 1:2,000 or other |
|
appropriate scale, indicating the location of the qualifying |
|
project; |
|
(2) a description of the qualifying project, |
|
including: |
|
(A) the conceptual design of any facility or a |
|
conceptual plan for the provision of services or technology |
|
infrastructure; and |
|
(B) a schedule for the initiation of and |
|
completion of the qualifying project that includes the proposed |
|
major responsibilities and timeline for activities to be performed |
|
by the governmental entity and the person; |
|
(3) a statement of the method the person proposes for |
|
securing necessary property interests required for the qualifying |
|
project; |
|
(4) information relating to any current plans for the |
|
development of facilities or technology infrastructure to be used |
|
by a governmental entity that are similar to the qualifying project |
|
being proposed by the person for each affected jurisdiction; |
|
(5) a list of all permits and approvals required for |
|
the development and completion of the qualifying project from |
|
local, state, or federal agencies and a projected schedule for |
|
obtaining the permits and approvals; |
|
(6) a list of any facilities that will be affected by |
|
the qualifying project and a statement of the person's plans to |
|
accommodate the affected facilities; |
|
(7) a statement on the person's general plans for |
|
financing the qualifying project, including the sources of the |
|
person's funds and identification of any dedicated revenue source |
|
or proposed debt or equity investment for the person; |
|
(8) the name and address of each individual who may be |
|
contacted for further information concerning the request; |
|
(9) user fees, lease payments, and other service |
|
payments over the term of any applicable interim or comprehensive |
|
agreement and the methodology and circumstances for changes to the |
|
user fees, lease payments, and other service payments over time; |
|
(10) a statement of the specific public purpose served |
|
by the qualifying project; |
|
(11) a statement describing the qualifying project's |
|
compliance with the responsible governmental entity's best value |
|
determination under Subsection (b-1); and |
|
(12) [(10)] any additional material and information |
|
the responsible governmental entity reasonably requests. |
|
(a-1) A responsible governmental entity that approves a |
|
proposal for a qualifying project under Subsection (a) shall select |
|
the contracting person for the project by soliciting additional |
|
proposals through a request for qualifications, request for |
|
proposals, or invitation to bid. |
|
(b) A responsible governmental entity may request proposals |
|
or invite bids from persons for the development or operation of a |
|
qualifying project. |
|
(b-1) A responsible governmental entity shall make a best |
|
value determination in evaluating the proposals received and |
|
consider the total project cost as one factor in evaluating the |
|
proposals. The responsible governmental entity [received, but] is |
|
not required to select the proposal that offers the lowest total |
|
project cost and[. The responsible governmental entity] may |
|
consider the following factors: |
|
(1) the proposed cost of the qualifying project; |
|
(2) the general reputation, industry experience, and |
|
financial capacity of the person submitting a proposal; |
|
(3) the proposed design and overall quality of the |
|
qualifying project; |
|
(4) the eligibility of the project for accelerated |
|
selection, review, and documentation timelines under the |
|
responsible governmental entity's guidelines; |
|
(5) comments from local citizens and affected |
|
jurisdictions; |
|
(6) benefits to the public; |
|
(7) the person's good faith effort to comply with the |
|
goals of a historically underutilized business plan; |
|
(8) the person's plans to employ local contractors and |
|
residents; |
|
(9) for a qualifying project that involves a |
|
continuing role beyond design and construction, the person's |
|
proposed rate of return and opportunities for revenue sharing; |
|
(10) the relationship and conformity of the qualifying |
|
project to a state or local community plan impacted by the |
|
qualifying project or to the uses of property surrounding the |
|
qualifying project; |
|
(11) the historic significance of the property on |
|
which the qualifying project is proposed to be located; |
|
(12) the environmental impact of the qualifying |
|
project; and |
|
(13) [(10)] other criteria that the responsible |
|
governmental entity considers appropriate. |
|
(b-2) A responsible governmental entity may approve a |
|
qualifying project that the governmental entity determines serves a |
|
public purpose. The responsible governmental entity must include |
|
in the comprehensive agreement for the qualifying project a written |
|
declaration of the specific public purpose served by the project. |
|
SECTION 7. Subsection (a), Section 2267.058, Government |
|
Code, as added by Chapter 1334 (S.B. 1048), Acts of the 82nd |
|
Legislature, Regular Session, 2011, is amended to read as follows: |
|
(a) Before developing or operating the qualifying project, |
|
the contracting person must enter into a comprehensive agreement |
|
with a responsible governmental entity. The comprehensive |
|
agreement shall provide for: |
|
(1) delivery of letters of credit or other security in |
|
connection with the development or operation of the qualifying |
|
project, in the forms and amounts satisfactory to the responsible |
|
governmental entity, and delivery of performance and payment bonds |
|
in compliance with Chapter 2253 for all construction activities; |
|
(2) review of plans and specifications for the |
|
qualifying project by the responsible governmental entity and |
|
approval by the responsible governmental entity indicating that |
|
[if] the plans and specifications conform to standards acceptable |
|
to the responsible governmental entity, except that the contracting |
|
person may not be required to provide final design documents for |
|
[complete the design of] a qualifying project before the execution |
|
of a comprehensive agreement; |
|
(3) inspection of the qualifying project by the |
|
responsible governmental entity to ensure that the contracting |
|
person's activities are acceptable to the responsible governmental |
|
entity in accordance with the comprehensive agreement; |
|
(4) maintenance of a public liability insurance |
|
policy, copies of which must be filed with the responsible |
|
governmental entity accompanied by proofs of coverage, or |
|
self-insurance, each in the form and amount satisfactory to the |
|
responsible governmental entity and reasonably sufficient to |
|
ensure coverage of tort liability to the public and project |
|
employees and to enable the continued operation of the qualifying |
|
project; |
|
(5) monitoring of the practices of the contracting |
|
person by the responsible governmental entity to ensure that the |
|
qualifying project is properly maintained; |
|
(6) reimbursement to be paid to the responsible |
|
governmental entity for services provided by the responsible |
|
governmental entity; |
|
(7) filing of appropriate financial statements on a |
|
periodic basis; and |
|
(8) policies and procedures governing the rights and |
|
responsibilities of the responsible governmental entity and the |
|
contracting person if the comprehensive agreement is terminated or |
|
there is a material default by the contracting person, including |
|
conditions governing: |
|
(A) assumption of the duties and |
|
responsibilities of the contracting person by the responsible |
|
governmental entity; and |
|
(B) the transfer or purchase of property or other |
|
interests of the contracting person to the responsible governmental |
|
entity. |
|
SECTION 8. The heading to Section 2267.066, Government |
|
Code, is amended to read as follows: |
|
Sec. 2267.066. POSTING OF PROPOSALS; PUBLIC COMMENT; PUBLIC |
|
ACCESS TO PROCUREMENT RECORDS; FINAL VOTE. |
|
SECTION 9. Section 2267.066, Government Code, is amended by |
|
amending Subsections (c) and (d) and adding Subsection (e-1) to |
|
read as follows: |
|
(c) Chapter 552 applies to qualifying project proposals |
|
[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. The public hearing shall be |
|
held in the area in which the proposed qualifying project is to be |
|
performed. |
|
(e-1) After making the proposed comprehensive agreement |
|
available as required by Subsection (e), the responsible |
|
governmental entity shall hold a public hearing on the final |
|
version of the proposed comprehensive agreement and vote on the |
|
proposed comprehensive agreement after the hearing. The hearing |
|
must be held not later than the 10th day before the date the entity |
|
enters into a comprehensive agreement with a contracting person. |
|
SECTION 10. Subchapter B, Chapter 2267, Government Code, as |
|
added by Chapter 1334 (S.B. 1048), Acts of the 82nd Legislature, |
|
Regular Session, 2011, is amended by adding Section 2267.067 to |
|
read as follows: |
|
Sec. 2267.067. QUALIFYING PROJECT IN CAPITOL COMPLEX. |
|
(a) A qualifying project for property located in the Capitol |
|
Complex, as defined by Section 411.061(a)(1), must be consistent |
|
with Capitol Complex design guidelines or standards adopted as part |
|
of a 1989 planning process or subsequently adopted based on a |
|
Capitol Complex master plan developed thereafter. |
|
(b) A responsible governmental entity shall include design |
|
guidelines and standards defined in Subsection (a) in the request |
|
for proposals or invitation for bids for the development or |
|
operation of a qualifying project and inform the persons who submit |
|
proposals of the requirement to comply with the design guidelines |
|
and standards. The final proposal or invitation must be submitted |
|
to the State Preservation Board for verification that the proposal |
|
complies with the standards. |
|
(c) A responsible governmental entity shall submit a final |
|
qualifying project proposal for property in the area described by |
|
Subsection (a) to the State Preservation Board. The State |
|
Preservation Board by majority vote may disapprove the proposal not |
|
later than the 60th day after the date the proposal is received. |
|
(d) A responsible governmental entity may not approve a |
|
qualifying project proposal for property in the area described by |
|
Subsection (a) before September 1, 2015. This subsection expires |
|
September 1, 2015. |
|
SECTION 11. Subsection (a), Section 2268.052, Government |
|
Code, is amended to read as follows: |
|
(a) The commission consists of the following five [11] |
|
members: |
|
(1) the chair of the House Appropriations Committee |
|
[or the chair's designee]; |
|
(2) one representative [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) one senator [three senators] appointed by the |
|
lieutenant governor; and |
|
(5) one public member [three representatives of the
|
|
executive branch,] appointed by the governor. |
|
SECTION 12. Subsection (a), Section 2268.056, Government |
|
Code, is amended to read as follows: |
|
(a) The State Preservation Board [legislative body that the
|
|
presiding officer serves] shall provide administrative staff |
|
support for the commission. |
|
SECTION 13. Subchapter B, Chapter 2268, Government Code, is |
|
amended by adding Section 2268.0585 to read as follows: |
|
Sec. 2268.0585. DISAPPROVAL OF QUALIFYING PROJECT |
|
PROPOSALS OF CERTAIN RESPONSIBLE GOVERNMENTAL ENTITIES. The |
|
commission by majority vote may disapprove a qualifying project |
|
proposal submitted by a governmental entity described by Section |
|
2267.001(5)(A). |
|
SECTION 14. Subsection (c), Section 211.013, Local |
|
Government Code, is amended to read as follows: |
|
(c) Except as provided by Section 2267.005, Government |
|
Code, this [This] subchapter does not apply to a building, other |
|
structure, or land under the control, administration, or |
|
jurisdiction of a state or federal agency. |
|
SECTION 15. Subsection (e), Section 31.155, Natural |
|
Resources Code, is amended to read as follows: |
|
(e) The duties of the division to make recommendations |
|
regarding real property and of the commissioner to prepare a report |
|
involving real property under this subchapter do not apply to: |
|
(1) the real property of the Texas Historical |
|
Commission; |
|
(2) the real property comprising the Alamo; |
|
(3) the real property comprising the French Legation; |
|
(4) the real property comprising the Governor's |
|
Mansion; |
|
(5) the real property comprising the Texas State |
|
Cemetery, more specifically described as 17.376 acres located at |
|
801 Comal, Lot 5, Division B, City of Austin, Travis County, Texas; |
|
(6) the real property administered by the State |
|
Preservation Board; [and] |
|
(7) highway rights-of-way owned by the Texas |
|
Department of Transportation; and |
|
(8) the real property located in the Capitol Complex |
|
as defined by Section 411.061(a)(1), Government Code. |
|
SECTION 16. Not later than December 1, 2016, the |
|
Partnership Advisory Commission established under Chapter 2268, |
|
Government Code, shall submit to the lieutenant governor, the |
|
speaker of the house of representatives, and the appropriate |
|
legislative standing committees recommendations on proposed |
|
amendments to Chapters 2267 and 2268, Government Code. |
|
SECTION 17. Section 552.153, Government Code, as added by |
|
Section 2, Chapter 1334 (Senate Bill No. 1048), Acts of the 82nd |
|
Legislature, Regular Session, 2011, is repealed. |
|
SECTION 18. If Senate Bill No. 894, 83rd Legislature, |
|
Regular Session, or similar legislation exempting property in the |
|
Capitol Complex as defined by Subdivision (1), Subsection (a), |
|
Section 411.061, Government Code, from Chapter 2267, Government |
|
Code, as added by Chapter 1334 (Senate Bill No. 1048), Acts of the |
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82nd Legislature, Regular Session, 2011, is passed and signed into |
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law, Sections 4 and 10 of this Act do not take effect. |
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SECTION 19. This Act takes effect September 1, 2013. |