Bill Text: TX SB1048 | 2011-2012 | 82nd Legislature | Enrolled


Bill Title: Relating to the creation of public and private facilities and infrastructure.

Spectrum: Partisan Bill (Republican 2-0)

Status: (Passed) 2011-06-17 - Effective on 9/1/11 [SB1048 Detail]

Download: Texas-2011-SB1048-Enrolled.html
 
 
  S.B. No. 1048
 
 
 
 
AN ACT
  relating to the creation of public and private facilities and
  infrastructure.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Subtitle F, Title 10, Government Code, is
  amended by adding Chapters 2267 and 2268 to read as follows:
  CHAPTER 2267.  PUBLIC AND PRIVATE FACILITIES AND INFRASTRUCTURE
  SUBCHAPTER A.  GENERAL PROVISIONS
         Sec. 2267.001.  DEFINITIONS. In this chapter:
               (1)  "Affected jurisdiction" means any county or
  municipality in which all or a portion of a qualifying project is
  located.
               (2)  "Comprehensive agreement" means the comprehensive
  agreement authorized by Section 2267.058 between the contracting
  person and the responsible governmental entity.
               (3)  "Contracting person" means a person who enters
  into a comprehensive or interim agreement with a responsible
  governmental entity under this chapter.
               (4)  "Develop" means to plan, design, develop, finance,
  lease, acquire, install, construct, or expand a qualifying project.
               (5)  "Governmental entity" means:
                     (A)  a board, commission, department, or other
  agency of this state, including an institution of higher education
  as defined by Section 61.003, Education Code, that elects to
  operate under this chapter through the adoption of a resolution by
  the institution's board of regents; and
                     (B)  a political subdivision of this state that
  elects to operate under this chapter by the adoption of a resolution
  by the governing body of the political subdivision.
               (6)  "Interim agreement" means an agreement authorized
  by Section 2267.059 between a contracting person and a responsible
  governmental entity that proposes the development or operation of
  the qualifying project.
               (7)  "Lease payment" means any form of payment,
  including a land lease, by a governmental entity to the contracting
  person for the use of a qualifying project.
               (8)  "Material default" means any default by a
  contracting person in the performance of duties imposed under
  Section 2267.057(f) that jeopardizes adequate service to the public
  from a qualifying project.
               (9)  "Operate" means to finance, maintain, improve,
  equip, modify, repair, or operate a qualifying project.
               (10)  "Qualifying project" means:
                     (A)  any ferry, mass transit facility, vehicle
  parking facility, port facility, power generation facility, fuel
  supply facility, oil or gas pipeline, water supply facility, public
  work, waste treatment facility, hospital, school, medical or
  nursing care facility, recreational facility, public building, or
  other similar facility currently available or to be made available
  to a governmental entity for public use, including any structure,
  parking area, appurtenance, and other property required to operate
  the structure or facility and any technology infrastructure
  installed in the structure or facility that is essential to the
  project's purpose; or
                     (B)  any improvements necessary or desirable to
  unimproved real estate owned by a governmental entity.
               (11)  "Responsible governmental entity" means a
  governmental entity that has the power to develop or operate an
  applicable qualifying project.
               (12)  "Revenue" means all revenue, income, earnings,
  user fees, lease payments, or other service payments that support
  the development or operation of a qualifying project, including
  money received as a grant or otherwise from the federal government,
  a governmental entity, or any agency or instrumentality of the
  federal government or governmental entity in aid of the project.
               (13)  "Service contract" means a contract between a
  governmental entity and a contracting person under Section
  2267.054.
               (14)  "Service payment" means a payment to a
  contracting person of a qualifying project under a service
  contract.
               (15)  "User fee" means a rate, fee, or other charge
  imposed by a contracting person for the use of all or part of a
  qualifying project under a comprehensive agreement.
         Sec. 2267.002.  DECLARATION OF PUBLIC PURPOSE; CONSTRUCTION
  OF CHAPTER.  (a)  The legislature finds that:
               (1)  there is a public need for timely acquisition,
  design, construction, improvement, renovation, expansion,
  equipping, maintenance, operation, implementation, and
  installation of education facilities, technology and other public
  infrastructure, and government facilities in this state that serve
  a public need and purpose;
               (2)  the public need may not be wholly satisfied by
  existing methods of procurement in which qualifying projects are
  acquired, designed, constructed, improved, renovated, expanded,
  equipped, maintained, operated, implemented, or installed;
               (3)  there are inadequate resources to develop new
  education facilities, technology and other public infrastructure,
  and government facilities for the benefit of the citizens of this
  state, and there is demonstrated evidence that partnerships between
  public entities and private entities or other persons can meet
  these needs by improving the schedule for delivery, lowering the
  cost, and providing other benefits to the public;
               (4)  financial incentives exist under state and federal
  tax provisions that encourage public entities to enter into
  partnerships with private entities or other persons to develop
  qualifying projects; and
               (5)  authorizing private entities or other persons to
  develop or operate one or more qualifying projects may serve the
  public safety, benefit, and welfare by making the projects
  available to the public in a more timely or less costly fashion.
         (b)  An action authorized under Section 2267.053 serves the
  public purpose of this chapter if the action facilitates the timely
  development or operation of a qualifying project.
         (c)  The purposes of this chapter include:
               (1)  encouraging investment in this state by private
  entities and other persons;
               (2)  facilitating bond financing or other similar
  financing mechanisms, private capital, and other funding sources
  that support the development or operation of qualifying projects in
  order to expand and accelerate financing for qualifying projects
  that improve and add to the convenience of the public; and
               (3)  providing governmental entities with the greatest
  possible flexibility in contracting with private entities or other
  persons to provide public services through qualifying projects
  subject to this chapter.
         (d)  This chapter shall be liberally construed in conformity
  with the purposes of this section.
         (e)  The procedures in this chapter are not exclusive.  This
  chapter does not prohibit a responsible governmental entity from
  entering into an agreement for or procuring public and private
  facilities and infrastructure under other statutory authority.
         Sec. 2267.003.  APPLICABILITY. This chapter does not apply
  to:
               (1)  the financing, design, construction, maintenance,
  or operation of a highway in the state highway system;
               (2)  a transportation authority created under Chapter
  451, 452, 453, or 460, Transportation Code; or
               (3)  any telecommunications, cable television, video
  service, or broadband infrastructure other than technology
  installed as part of a qualifying project that is essential to the
  project.
         Sec. 2267.004.  APPLICABILITY OF EMINENT DOMAIN LAW.  This
  chapter does not alter the eminent domain laws of this state or
  grant the power of eminent domain to any person who is not expressly
  granted that power under other state law.
  [Sections 2267.005-2267.050 reserved for expansion]
  SUBCHAPTER B.  QUALIFYING PROJECTS
         Sec. 2267.051.  APPROVAL REQUIRED; SUBMISSION OF PROPOSAL
  FOR QUALIFYING PROJECT. (a)  A person may not develop or operate a
  qualifying project unless the person obtains the approval of and
  contracts with the responsible governmental entity under this
  chapter.  The person may initiate the approval process by
  submitting a proposal requesting approval under Section
  2267.053(a), or the responsible governmental entity may request
  proposals or invite bids under Section 2267.053(b).
         (b)  A person submitting a proposal requesting approval of a
  qualifying project shall specifically and conceptually identify
  any facility, building, infrastructure, or improvement included in
  the proposal as a part of the qualifying project.
         (c)  On receipt of a proposal submitted by a person
  initiating the approval process under Section 2267.053(a), the
  responsible governmental entity shall determine whether to accept
  the proposal for consideration in accordance with Sections 2267.052
  and 2267.065 and the guidelines adopted under those sections.  A
  responsible governmental entity that determines not to accept the
  proposal for consideration shall return the proposal, all fees, and
  the accompanying documentation to the person submitting the
  proposal.
         (d)  The responsible governmental entity may at any time
  reject a proposal initiated by a person under Section 2267.053(a).
         Sec. 2267.052.  ADOPTION OF GUIDELINES BY RESPONSIBLE
  GOVERNMENTAL ENTITIES. (a)  Before requesting or considering a
  proposal for a qualifying project, a responsible governmental
  entity must adopt and make publicly available guidelines that
  enable the governmental entity to comply with this chapter.  The
  guidelines must be reasonable, encourage competition, and guide the
  selection of projects under the purview of the responsible
  governmental entity.
         (b)  The guidelines for a responsible governmental entity
  described by Section 2267.001(5)(A) must:
               (1)  require the responsible governmental entity to:
                     (A)  make a representative of the entity available
  to meet with persons who are considering submitting a proposal; and
                     (B)  provide notice of the representative's
  availability;
               (2)  provide reasonable criteria for choosing among
  competing proposals;
               (3)  contain suggested timelines for selecting
  proposals and negotiating an interim or comprehensive agreement;
               (4)  allow the responsible governmental entity to
  accelerate the selection, review, and documentation timelines for
  proposals involving a qualifying project considered a priority by
  the entity;
               (5)  include financial review and analysis procedures
  that at a minimum consist of:
                     (A)  a cost-benefit analysis;
                     (B)  an assessment of opportunity cost;
                     (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
  and analyses related to the proposed qualifying project;
               (6)  allow the responsible governmental entity to
  consider the nonfinancial benefits of a proposed qualifying
  project;
               (7)  include criteria for:
                     (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;
                     (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
  2268;
               (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
  2267.053(g);
               (9)  establish criteria, key decision points, and
  approvals required to ensure that the responsible governmental
  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:
                     (A)  specific information and documentation
  regarding the nature, timing, and scope of the qualifying project,
  as required under Section 2267.053(a);
                     (B)  a reasonable period of not less than 45 days,
  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
                     (C)  a requirement for advertising the notice on
  the governmental entity's Internet website and on TexasOnline or
  the state's official Internet website.
         (c)  The guidelines of a responsible governmental entity
  described by Section 2267.001(5)(B):
               (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
  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.
         Sec. 2267.053.  APPROVAL OF QUALIFYING PROJECTS BY
  RESPONSIBLE GOVERNMENTAL ENTITY. (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 following, unless waived by the responsible
  governmental entity:
               (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;
  and
               (10)  any additional material and information the
  responsible governmental entity reasonably requests.
         (b)  A responsible governmental entity may request proposals
  or invite bids from persons for the development or operation of a
  qualifying project. A responsible governmental entity shall
  consider the total project cost as one factor in evaluating the
  proposals received, but is not required to select the proposal that
  offers the lowest total project cost. 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 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; and
               (10)  other criteria that the responsible governmental
  entity considers appropriate.
         (c)  The responsible governmental entity may approve as a
  qualifying project the development or operation of a facility
  needed by the governmental entity, or the design or equipping of a
  qualifying project, if the responsible governmental entity
  determines that the project serves the public purpose of this
  chapter.  The responsible governmental entity may determine that
  the development or operation of the project as a qualifying project
  serves the public purpose if:
               (1)  there is a public need for or benefit derived from
  the project of the type the person proposes as a qualifying project;
               (2)  the estimated cost of the project is reasonable in
  relation to similar facilities; and
               (3)  the person's plans will result in the timely
  development or operation of the qualifying project.
         (d)  The responsible governmental entity may charge a
  reasonable fee to cover the costs of processing, reviewing, and
  evaluating the proposal, including reasonable legal fees and fees
  for financial, technical, and other necessary advisors or
  consultants.
         (e)  The approval of a responsible governmental entity
  described by Section 2267.001(5)(A) is subject to the private
  entity or other person entering into an interim or comprehensive
  agreement with the responsible governmental entity.
         (f)  On approval of the qualifying project, the responsible
  governmental entity shall establish a date by which activities
  related to the qualifying project must begin.  The responsible
  governmental entity may extend the date.
         (g)  The responsible governmental entity shall take action
  appropriate under Section 552.153 to protect confidential and
  proprietary information provided by the contracting person under an
  agreement.
         (h)  Before entering into the negotiation of an interim or
  comprehensive agreement, each responsible governmental entity
  described by Section 2267.001(5)(A) must submit copies of detailed
  proposals to the Partnership Advisory Commission in accordance with
  Chapter 2268.
         (i)  This chapter and an interim or comprehensive agreement
  entered into under this chapter do not enlarge, diminish, or affect
  any authority a responsible governmental entity has to take action
  that would impact the debt capacity of this state.
         Sec. 2267.054.  SERVICE CONTRACTS. A responsible
  governmental entity may contract with a contracting person for the
  delivery of services to be provided as part of a qualifying project
  in exchange for service payments and other consideration as the
  governmental entity considers appropriate.
         Sec. 2267.055.  AFFECTED JURISDICTIONS. (a)  A person
  submitting a proposal to a responsible governmental entity under
  Section 2267.053 shall notify each affected jurisdiction by
  providing a copy of its proposal to the affected jurisdiction.
         (b)  Not later than the 60th day after the date an affected
  jurisdiction receives the notice required by Subsection (a), the
  affected jurisdiction that is not the responsible governmental
  entity for the respective qualifying project shall submit in
  writing to the responsible governmental entity any comments the
  affected jurisdiction has on the proposed qualifying project and
  indicate whether the facility or project is compatible with the
  local comprehensive plan, local infrastructure development plans,
  the capital improvements budget, or other government spending plan.  
  The responsible governmental entity shall consider the submitted
  comments before entering into a comprehensive agreement with a
  contracting person.
         Sec. 2267.056.  DEDICATION AND CONVEYANCE OF PUBLIC
  PROPERTY. (a)  After obtaining any appraisal of the property
  interest that is required under other law in connection with the
  conveyance, a governmental entity may dedicate any property
  interest, including land, improvements, and tangible personal
  property, for public use in a qualifying project if the
  governmental entity finds that the dedication will serve the public
  purpose of this chapter by minimizing the cost of a qualifying
  project to the governmental entity or reducing the delivery time of
  a qualifying project.
         (b)  In connection with a dedication under Subsection (a), a
  governmental entity may convey any property interest, including a
  license, franchise, easement, or another right or interest the
  governmental entity considers appropriate, subject to the
  conditions imposed by general law governing such conveyance and
  subject to the rights of an existing utility under a license,
  franchise, easement, or other right under law, to the contracting
  person for the consideration determined by the governmental entity.  
  The consideration may include the agreement of the contracting
  person to develop or operate the qualifying project.
         Sec. 2267.057.  POWERS AND DUTIES OF CONTRACTING PERSON.
  (a)  The contracting person has:
               (1)  the power granted by:
                     (A)  general law to a person that has the same form
  of organization as the contracting person; and
                     (B)  a statute governing the business or activity
  of the contracting person; and
               (2)  the power to:
                     (A)  develop or operate the qualifying project;
  and
                     (B)  collect lease payments, impose user fees
  subject to Subsection (b), or enter into service contracts in
  connection with the use of the project.
         (b)  The contracting person may not impose a user fee or
  increase the amount of a user fee until the fee or increase is
  approved by the responsible governmental entity.
         (c)  The contracting person may own, lease, or acquire any
  other right to use or operate the qualifying project.
         (d)  The contracting person may finance a qualifying project
  in the amounts and on the terms determined by the contracting
  person.  The contracting person may issue debt, equity, or other
  securities or obligations, enter into sale and leaseback
  transactions, and secure any financing with a pledge of, security
  interest in, or lien on any or all of its property, including all of
  its property interests in the qualifying project.
         (e)  In operating the qualifying project, the contracting
  person may:
               (1)  establish classifications according to reasonable
  categories for assessment of user fees; and
               (2)  with the consent of the responsible governmental
  entity, adopt and enforce reasonable rules for the qualifying
  project to the same extent as the responsible governmental entity.
         (f)  The contracting person shall:
               (1)  develop or operate the qualifying project in a
  manner that is acceptable to the responsible governmental entity
  and in accordance with any applicable interim or comprehensive
  agreement;
               (2)  subject to Subsection (g), keep the qualifying
  project open for use by the public at all times, or as appropriate
  based on the use of the project, after its initial opening on
  payment of the applicable user fees, lease payments, or service
  payments;
               (3)  maintain, or provide by contract for the
  maintenance or upgrade of, the qualifying project, if required by
  any applicable interim or comprehensive agreement;
               (4)  cooperate with the responsible governmental
  entity to establish any interconnection with the qualifying project
  requested by the responsible governmental entity; and
               (5)  comply with any applicable interim or
  comprehensive agreement and any lease or service contract.
         (g)  The qualifying project may be temporarily closed
  because of emergencies or, with the consent of the responsible
  governmental entity, to protect public safety or for reasonable
  construction or maintenance activities.
         (h)  This chapter does not prohibit a contracting person of a
  qualifying project from providing additional services for the
  qualifying project to the public or persons other than the
  responsible governmental entity, provided that the provision of
  additional service does not impair the contracting person's ability
  to meet the person's commitments to the responsible governmental
  entity under any applicable interim or comprehensive agreement.
         Sec. 2267.058.  COMPREHENSIVE AGREEMENT. (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 if the plans and
  specifications conform to standards acceptable to the responsible
  governmental entity, except that the contracting person may not be
  required to 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.
         (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
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