GOVERNMENT CODE
TITLE 10. GENERAL GOVERNMENT
SUBTITLE F. STATE AND LOCAL CONTRACTS AND FUND MANAGEMENT
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.
(1-a) "Center" means the center for alternative finance and procurement established under Section 2152.110 by the Texas Facilities Commission.
(1-b) "Commission" means the Partnership Advisory Commission established under Chapter 2268.
(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.
(5-a) "Improvement" means:
(A) a building, structure, fixture, or fence erected on or affixed to land;
(B) the installation of water, sewer, or drainage lines on, above, or under land;
(C) the paving of undeveloped land; and
(D) specialized software that in any manner is related to the control, management, maintenance, or operation of an improvement.
(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.
(9-a) "Private entity" means any individual person, corporation, general partnership, limited liability company, limited partnership, joint venture, business trust, public benefit corporation, nonprofit entity, or other business entity.
(9-b) "Property" means any matter or thing capable of public or private ownership.
(9-c) "Proposer" means a private entity that submits a proposal to a responsible governmental entity or affected jurisdiction.
(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, technology facility, 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 real property owned by a governmental entity.
(10-a) "Real property" means:
(A) improved or unimproved land;
(B) an improvement;
(C) a mine or quarry;
(D) a mineral in place;
(E) standing timber; or
(F) an estate or interest, other than a mortgage or deed of trust creating a lien on property or an interest securing payment or performance of an obligation, in a property described by Paragraphs (A) through (E).
(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 arise out of or in connection with 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.
(14-a) "State entity" means a governmental entity described by Subdivision (5)(A).
(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.
Added by Acts 2011, 82nd Leg., R.S., Ch. 1334 (S.B. 1048), Sec. 1, eff. September 1, 2011.
Amended by:
Acts 2013, 83rd Leg., R.S., Ch. 271 (H.B. 768), Sec. 1, eff. June 14, 2013.
Acts 2013, 83rd Leg., R.S., Ch. 1153 (S.B. 211), Sec. 23, eff. June 14, 2013.
Acts 2015, 84th Leg., R.S., Ch. 1075 (H.B. 2475), Sec. 2, eff. September 1, 2015.
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) Repealed by Acts 2015, 84th Leg., R.S., Ch. 1075 , Sec. 12(1), eff. September 1, 2015.
Added by Acts 2011, 82nd Leg., R.S., Ch. 1334 (S.B. 1048), Sec. 1, eff. September 1, 2011.
Amended by:
Acts 2015, 84th Leg., R.S., Ch. 1075 (H.B. 2475), Sec. 12(1), eff. September 1, 2015.
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 operating under Chapter 451, 452, 453, or 460, Transportation Code, other than a metropolitan rapid transit authority operating under Chapter 451, Transportation Code, in which the principal municipality has a population of 1.9 million or more;
(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; or
(4) except as provided by Section 2165.259, a qualifying project located in the Capitol Complex, as defined by Section 443.0071.
Added by Acts 2011, 82nd Leg., R.S., Ch. 1334 (S.B. 1048), Sec. 1, eff. September 1, 2011.
Amended by:
Acts 2013, 83rd Leg., R.S., Ch. 1153 (S.B. 211), Sec. 24, eff. June 14, 2013.
Acts 2017, 85th Leg., R.S., Ch. 526 (S.B. 255), Sec. 7, eff. September 1, 2017.
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.
Added by Acts 2011, 82nd Leg., R.S., Ch. 1334 (S.B. 1048), Sec. 1, eff. September 1, 2011.
Sec. 2267.005. CONFLICT OF INTEREST. An employee of a responsible governmental entity or a person related to the employee within the second degree by consanguinity or affinity, as determined under Chapter 573, may not accept money, a financial benefit, or other consideration from a contracting person that has entered into a comprehensive agreement with the responsible governmental entity.
Added by Acts 2013, 83rd Leg., R.S., Ch. 1153 (S.B. 211), Sec. 25, eff. June 14, 2013.
Sec. 2267.0051. PROHIBITED EMPLOYMENT WITH FORMER OR RETIRED GOVERNMENTAL ENTITY EMPLOYEES. (a) A contracting person may not 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 first anniversary of the date on which the former or retired employee terminates employment with the entity.
(b) This section does not prohibit the contracting person from entering into a professional services contract with a corporation, firm, or other business organization that employs a former or retired employee of the responsible governmental entity 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 or retired employee worked on before terminating employment with the entity.
Added by Acts 2013, 83rd Leg., R.S., Ch. 1153 (S.B. 211), Sec. 25, eff. June 14, 2013.
Sec. 2267.0052. PROHIBITED EMPLOYMENT OF RESPONSIBLE GOVERNMENTAL ENTITY EMPLOYEES. (a) An employee of a responsible governmental entity may not be employed or hired by another person to perform duties that relate to the employee's specific duties in developing and implementing a qualifying project, including review, evaluation, development, and negotiation of a qualifying project proposal.
(b) The responsible governmental entity shall obtain from each employee sufficient information to determine whether:
(1) the employee is employed by another person; and
(2) a potential conflict of interest exists between the employee's duties for the entity and the employee's duties with the other employer.
(c) Each employee of a responsible governmental entity whose duties relate to a qualifying project shall attest that the employee is aware of and agrees to the responsible governmental entity's ethics and conflict-of-interest policies.
(d) To the extent the other employment is authorized by the responsible governmental entity's policy, this section does not prohibit additional employment for an employee of a responsible governmental entity whose duties are not related to a qualifying project.
Added by Acts 2013, 83rd Leg., R.S., Ch. 1153 (S.B. 211), Sec. 25, eff. June 14, 2013.
Sec. 2267.006. DEVELOPMENT PLAN. (a) If the state intends to develop or operate a qualifying project under this chapter, the state entity proposing to develop or operate the project may adopt a development plan on the real property associated with the project.
(b) The purpose of a development plan is to conserve and enhance the value of real property belonging to the state, taking into consideration the preservation of the health, safety, and general welfare of the communities in which the real property is situated.
(c) The plan must address local land use planning ordinances, which may include the following:
(1) allocation and location of specific uses of the real property, including residential, commercial, industrial, recreational, or other appropriate uses;
(2) densities and intensities of designated land uses;
(3) the timing and rate of development;
(4) timely delivery of adequate facilities and services, including water, wastewater collection and treatment systems, parks and public recreational facilities, drainage facilities, school sites, and roads and transportation facilities; or
(5) needed zoning and other land use regulations.
(d) The plan must comply with existing rules, regulations, orders, or ordinances for real property development to the extent the rules, regulations, orders, or ordinances are not detrimental to the interests of the state as determined by the special board of review.
Added by Acts 2013, 83rd Leg., R.S., Ch. 1153 (S.B. 211), Sec. 25, eff. June 14, 2013.
Sec. 2267.0061. PUBLIC HEARING BEFORE PREPARATION OF DEVELOPMENT PLAN. (a) If the state entity is requested to prepare a development plan under Section 2267.006, the state entity shall notify the local government to which the plan will be submitted under Section 2267.0062 of the state entity's intent to prepare a development plan. The state entity shall provide the local government with information relating to:
(1) the location of the real property to be offered for sale or lease;
(2) the highest and best use of the real property; and
(3) the process for preparing the development plan under Section 2267.006 and the process provided under Sections 2267.0065 and 2267.0066 for the special board of review.
(b) Not later than the 30th day after the date the local government receives the notice provided under Subsection (a), the local government may request the state entity to hold a public hearing to solicit public comment. If requested by the local government, the state entity shall hold a public hearing. The local government shall provide notice of the hearing to real property owners in at least the same manner that notice is provided for adopting zoning regulations or subdivision requirements in the local government's jurisdiction. The state entity shall set the agenda for the hearing, which must be completed not later than the 120th day after the date notice is provided under Subsection (a).
(c) If the local government does not request a public hearing under Subsection (b), the state entity may hold a hearing to solicit public comment. The state entity shall provide notice of the hearing in the same manner that a local government is required to provide notice under Subsection (b). The state entity shall set the agenda for the hearing and must complete the hearing not later than the 120th day after the date the notice is provided under Subsection (a).
(d) A public hearing under this section may include:
(1) a presentation by the state entity relating to the state entity's classification of the real property as unused or substantially underused and the state entity's recommendation of the highest and best use to which the real property may legally be placed;
(2) a presentation by the local government relating to relevant local plans, development principles, and ordinances that may affect the development of the real property; and
(3) oral comments and presentations of information by and written comments received from other persons relating to the development of the real property.
(e) The state entity shall prepare a summary of the information and testimony presented at a hearing conducted under this section and may develop recommendations based on the information and testimony. The state entity shall prepare a report summarizing the information and testimony presented at the hearing and the views presented by the state, the affected local governments, and other persons who participated in the hearing process. The governing body of the state entity shall review the state entity's report and may instruct the state entity to incorporate information based on the report in preparing the development plan under Section 2267.006.
(f) The state entity may adopt rules to implement this section. The state entity shall administer the process provided by this section.
Added by Acts 2013, 83rd Leg., R.S., Ch. 1153 (S.B. 211), Sec. 25, eff. June 14, 2013.
Sec. 2267.0062. SUBMISSION OF PLAN TO AFFECTED LOCAL GOVERNMENT. (a) The development plan adopted under Section 2267.006 shall be submitted to any local government having jurisdiction over the real property in question for consideration.
(b) The local government shall evaluate the plan and either accept or reject the plan not later than the 120th day after the date the state entity submits the plan.
(c) The plan may be rejected by the local government only on grounds that it does not comply with local ordinances and land use regulations, including zoning and subdivision ordinances.
(d) If the plan is rejected, the local government shall specifically identify any ordinance with which the plan conflicts and propose specific modifications to the plan that will bring it into compliance with the local ordinance.
(e) If the plan is rejected by the affected local government, the state entity may modify the plan to conform to the ordinances specifically identified by the local government and resubmit the plan for approval, or the state entity may apply for necessary rezoning or variances from the local ordinances.
(f) Failure by the local government to act within the 120-day period prescribed by Subsection (b) is considered an acceptance by the local government of the plan.
Added by Acts 2013, 83rd Leg., R.S., Ch. 1153 (S.B. 211), Sec. 25, eff. June 14, 2013.
Sec. 2267.0063. REZONING. (a) If the plan would require zoning inconsistent with any existing zoning or other land use regulation, the state entity or its designated representative may at any time submit a request for rezoning to the local government with jurisdiction over the real property in question.
(b) The rezoning or variance request shall be submitted in the same manner as any such request is submitted to the affected local government provided the local government takes final action on the request not later than the 120th day after the date the request for rezoning or variance is submitted.
(c) Failure by the local government to act within the 120-day period prescribed by Subsection (b) is considered an approval of the rezoning request by the local government.
Added by Acts 2013, 83rd Leg., R.S., Ch. 1153 (S.B. 211), Sec. 25, eff. June 14, 2013.
Sec. 2267.0064. FEES AND ASSESSMENTS. (a) The local government may not impose application, filing, or other fees or assessments on the state for consideration of the plan or the application for rezoning or variance submitted by the state.
(b) The local government may not require the submission of architectural, engineering, or impact studies to be completed at state expense before considering the plan or application for rezoning or variance.
Added by Acts 2013, 83rd Leg., R.S., Ch. 1153 (S.B. 211), Sec. 25, eff. June 14, 2013.
Sec. 2267.0065. SPECIAL BOARD OF REVIEW. (a) If the local government denies the rezoning request submitted under this chapter, the matter may be appealed to a special board of review consisting of the following members:
(1) the land commissioner;
(2) the mayor of the municipality within whose corporate boundaries or extraterritorial jurisdiction the real property is located;
(3) the county judge of the county in which the qualifying project is located;
(4) the executive director of the state entity that proposes to develop or operate the qualifying project; and
(5) a member appointed by the governor.
(b) The land commissioner shall serve as the presiding officer of the special board of review.
Added by Acts 2013, 83rd Leg., R.S., Ch. 1153 (S.B. 211), Sec. 25, eff. June 14, 2013.
Sec. 2267.0066. HEARING. (a) The special board of review shall conduct one or more public hearings to consider the proposed development plan.
(b) Hearings shall be conducted in accordance with rules adopted by the General Land Office for conducting a special review.
(c) If real property is located in more than one municipality, the hearings on any single tract of real property may be combined.
(d) Any political subdivision in which the tract in question is located and the appropriate central appraisal district shall receive written notice of board hearings at least 14 days before the date of the hearing.
(e) At least one hearing shall be conducted in the county where the real property is located.
(f) If after the hearings the special board of review determines that local zoning requirements are detrimental to the best interest of the state, the board shall issue an order establishing a development plan to govern the use of the real property as provided in this section.
(g) Development of the real property shall be in accordance with the plan and must comply with all local rules, regulations, orders, or ordinances except as specifically identified in an order of the special board of review issued pursuant to Subsection (f). In the event that substantial progress is not made toward development of the tract within five years of the date of adoption by the special board of review, local development policies and procedures shall become applicable to development of the tract, unless the special board of review promulgates a new plan.
(h) The hearing may not be considered a contested case proceeding under Chapter 2001 and is not subject to appeal under that chapter.
Added by Acts 2013, 83rd Leg., R.S., Ch. 1153 (S.B. 211), Sec. 25, eff. June 14, 2013.
Sec. 2267.0067. BINDING EFFECT OF DEVELOPMENT PLAN. (a) Except as provided by this subsection, a development plan promulgated by the special board of review under this chapter and any plan accepted by a local government shall be final and binding on the state, its lessees, successors in interest and assigns, and affected local governments or political subdivisions unless revised by the special board of review. If the state entity does not receive a bid or auction solicitation for the real property subject to the development plan, the state entity, at the direction of the executive director of the entity, may revise the development plan to conserve and enhance the value and marketability of the real property.
(b) A local government, political subdivision, owner, builder, developer, or any other person may not modify the development plan without specific approval by the special board of review.
(c) The special board of review must file a copy of the development plan in the deed records of the county in which the real property is located. Revisions to the development plan that are requested after the later of the 10th anniversary of the date on which the development plan was adopted by the special board of review or the date on which the state no longer holds a financial or property interest in the real property subject to the plan are governed by local development policies and procedures.
Added by Acts 2013, 83rd Leg., R.S., Ch. 1153 (S.B. 211), Sec. 25, eff. June 14, 2013.
Sec. 2267.007. QUALIFYING PROJECTS IN CAPITOL COMPLEX. The Texas Facilities Commission may develop or operate a qualifying project located in the Capitol complex, as defined by Section 443.0071, as provided by this chapter only if specifically granted the authority by the legislature.
Added by Acts 2013, 83rd Leg., R.S., Ch. 713 (H.B. 3436), Sec. 2, eff. June 14, 2013.
Added by Acts 2013, 83rd Leg., R.S., Ch. 1339 (S.B. 894), Sec. 2, eff. June 14, 2013.
Redesignated from Government Code, Section 2267.005 by Acts 2015, 84th Leg., R.S., Ch. 1236 (S.B. 1296), Sec. 21.001(30), eff. September 1, 2015.
SUBCHAPTER B. QUALIFYING PROJECTS
Sec. 2267.051. APPROVAL REQUIRED. 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.
Added by Acts 2011, 82nd Leg., R.S., Ch. 1334 (S.B. 1048), Sec. 1, eff. September 1, 2011.
Amended by:
Acts 2015, 84th Leg., R.S., Ch. 1075 (H.B. 2475), Sec. 3, eff. September 1, 2015.
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) ensure that the governmental entity, for a proposed project to improve real property, evaluates design quality, life-cycle costs, and the proposed project's relationship to any relevant comprehensive planning or zoning requirements;
(8) 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) the center's role in the review, analysis, or evaluation of the qualifying project;
(9) 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); and
(10) 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.
(c) The guidelines of a responsible governmental entity described by Section 2267.001(5)(B) must include:
(1) the provisions required under Subsection (b); and
(2) a requirement that the governmental entity engage the services of qualified professionals, including an architect, professional engineer, or registered municipal advisor, not otherwise employed by the governmental entity, or the center to provide independent analyses regarding the specifics, advantages, disadvantages, and long-term and short-term costs of a qualifying project unless the governing body of the governmental entity determines that the analysis is to be performed by similarly qualified employees of the governmental entity.
(c-1) For a proposal with an estimated cost of $5 million or more for construction or renovation of a qualifying project, the analysis conducted under Subsection (c)(2) must include review by an architect, a professional engineer, and a registered municipal advisor not otherwise employed by the governmental entity.
(d) A responsible governmental entity described by Section 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 commission consistent with the requirements of Subsection (b). The commission shall prescribe the procedure for submitting the guidelines for review under this section. The commission must complete its review of the guidelines not later than the 60th day after the date the commission receives the guidelines and provide written comments and recommendations to the governmental entity to ensure timely compliance with Subsection (b). The governmental entity may not request or consider a proposal for a qualifying project until the guidelines are approved by the commission.
Added by Acts 2011, 82nd Leg., R.S., Ch. 1334 (S.B. 1048), Sec. 1, eff. September 1, 2011.
Amended by:
Acts 2013, 83rd Leg., R.S., Ch. 1153 (S.B. 211), Sec. 27, eff. June 14, 2013.
Acts 2015, 84th Leg., R.S., Ch. 1075 (H.B. 2475), Sec. 4, eff. September 1, 2015.
Sec. 2267.053. APPROVAL OF QUALIFYING PROJECTS BY RESPONSIBLE GOVERNMENTAL ENTITY.
(a) Repealed by Acts 2015, 84th Leg., R.S., Ch. 1075 , Sec. 12(2), eff. September 1, 2015.
(a-1) Repealed by Acts 2015, 84th Leg., R.S., Ch. 1075 , Sec. 12(2), eff. September 1, 2015.
(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 is not required to select the proposal that offers the lowest total project cost and 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) 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.
(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, fees for financial and technical advisors or consultants, and fees for the center's review or consultation.
(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 a private entity submitting the proposal and by the contracting person under an agreement.
(h) Before completing the negotiation and entering into an interim or comprehensive agreement, each responsible governmental entity described by Section 2267.001(5)(A) must submit copies of detailed proposals, including drafts of any interim agreement and the comprehensive agreement, 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.
Added by Acts 2011, 82nd Leg., R.S., Ch. 1334 (S.B. 1048), Sec. 1, eff. September 1, 2011.
Amended by:
Acts 2013, 83rd Leg., R.S., Ch. 1153 (S.B. 211), Sec. 28, eff. June 14, 2013.
Acts 2015, 84th Leg., R.S., Ch. 1075 (H.B. 2475), Sec. 5, eff. September 1, 2015.
Acts 2015, 84th Leg., R.S., Ch. 1075 (H.B. 2475), Sec. 12(2), eff. September 1, 2015.
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.
Added by Acts 2011, 82nd Leg., R.S., Ch. 1334 (S.B. 1048), Sec. 1, eff. September 1, 2011.
Sec. 2267.055. AFFECTED JURISDICTIONS. (a) A private entity whose proposal, other than a proposal for a service contract, is accepted for conceptual stage evaluation 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.
Added by Acts 2011, 82nd Leg., R.S., Ch. 1334 (S.B. 1048), Sec. 1, eff. September 1, 2011.
Amended by:
Acts 2013, 83rd Leg., R.S., Ch. 1153 (S.B. 211), Sec. 29, eff. June 14, 2013.
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.
Added by Acts 2011, 82nd Leg., R.S., Ch. 1334 (S.B. 1048), Sec. 1, eff. September 1, 2011.
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.
Added by Acts 2011, 82nd Leg., R.S., Ch. 1334 (S.B. 1048), Sec. 1, eff. September 1, 2011.
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 indicating that 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 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.
(g) The comprehensive agreement must provide that a security document or other instrument purporting to mortgage, pledge, encumber, or create a lien, charge, or security interest on or against the contracting party's interest may not extend to or affect the fee simple interest of the state in the qualifying project or the state's rights or interests under the comprehensive agreement. Any holder of debt shall acknowledge that the mortgage, pledge, or encumbrance or a lien, charge, or security interest on or against the contracting party's interest is subordinate to the fee simple interest of the state in the qualifying project.
Added by Acts 2011, 82nd Leg., R.S., Ch. 1334 (S.B. 1048), Sec. 1, eff. September 1, 2011.
Amended by:
Acts 2013, 83rd Leg., R.S., Ch. 1153 (S.B. 211), Sec. 30, eff. June 14, 2013.
Acts 2015, 84th Leg., R.S., Ch. 1075 (H.B. 2475), Sec. 6, eff. September 1, 2015.
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.
Added by Acts 2011, 82nd Leg., R.S., Ch. 1334 (S.B. 1048), Sec. 1, eff. September 1, 2011.
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.
Added by Acts 2011, 82nd Leg., R.S., Ch. 1334 (S.B. 1048), Sec. 1, eff. September 1, 2011.
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.
Added by Acts 2011, 82nd Leg., R.S., Ch. 1334 (S.B. 1048), Sec. 1, eff. September 1, 2011.
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.
Added by Acts 2011, 82nd Leg., R.S., Ch. 1334 (S.B. 1048), Sec. 1, eff. September 1, 2011.
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.
Added by Acts 2011, 82nd Leg., R.S., Ch. 1334 (S.B. 1048), Sec. 1, eff. September 1, 2011.
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.
Added by Acts 2011, 82nd Leg., R.S., Ch. 1334 (S.B. 1048), Sec. 1, eff. September 1, 2011.
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.
Added by Acts 2011, 82nd Leg., R.S., Ch. 1334 (S.B. 1048), Sec. 1, eff. September 1, 2011.
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) Subchapter G, Chapter 2269, for facilities projects described by Section 2269.302; or
(2) Subchapter H, Chapter 2269, for civil works projects as defined by Section 2269.351.
(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.
Added by Acts 2011, 82nd Leg., R.S., Ch. 1334 (S.B. 1048), Sec. 1, eff. September 1, 2011.
Amended by:
Acts 2015, 84th Leg., R.S., Ch. 1075 (H.B. 2475), Sec. 7, eff. September 1, 2015.
Sec. 2267.066. POSTING OF PROPOSALS; PUBLIC COMMENT; PUBLIC ACCESS TO PROCUREMENT RECORDS; FINAL VOTE. (a) Not later than the 10th day after the date a responsible governmental entity accepts a proposal submitted in accordance with Section 2267.053(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, proprietary information, financial records, and work product of a proposer are excluded from disclosure under Section 552.101 and may not be posted or made available for public inspection except as otherwise agreed to by the responsible governmental entity and the proposer. After submission by a responsible governmental entity of a detailed qualifying project proposal to the commission, the trade secrets, proprietary information, financial records, and work product of the proposer are not protected from disclosure unless expressly excepted from the requirements of Chapter 552 or considered confidential under other law.
(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) 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).
(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.
(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.
Added by Acts 2011, 82nd Leg., R.S., Ch. 1334 (S.B. 1048), Sec. 1, eff. September 1, 2011.
Amended by:
Acts 2013, 83rd Leg., R.S., Ch. 1153 (S.B. 211), Sec. 31, eff. June 14, 2013.
Acts 2013, 83rd Leg., R.S., Ch. 1153 (S.B. 211), Sec. 32, eff. June 14, 2013.
Acts 2015, 84th Leg., R.S., Ch. 1075 (H.B. 2475), Sec. 8, eff. September 1, 2015.