| project and any proposed alignments, procedural requirements, and
the completion of any and all environmental documents required to
be completed by the department and any federal agency acting as a
lead agency. The department:
(1) shall determine the scope of work to be performed
by the private entity or its consultants or subcontractors;
(2) shall specify the level of design, alternatives
to be reviewed, impacts to consider, and other information to be provided
by the private entity or its consultants or subcontractors; and
(3) shall independently review any studies and conclusions
reached by the private entity or its consultants or subcontractors
before their inclusion in an environmental document.
(m) Effect of environmental requirements on comprehensive
development agreement. Completion of the environmental review is required
before the private entity may be authorized to conduct and complete
the final design and start construction of a project. Additionally,
all applicable state and federal environmental permits and approvals
must be obtained before the private entity may start construction
of the portion of a project requiring the permit or approval. Unless
and until that occurs, the department is not bound to any further
development of the project. The department, and any federal agency
acting as a lead agency, may select an alternative other than the
one in the proposed project, including the "no-build" alternative.
A comprehensive development agreement shall provide that the agreement
will be modified as necessary to address requirements in the final
environmental documents, and shall provide that the agreement may
be terminated if the "no-build" alternative is selected or if another
alternative is selected that is incompatible with the requirements
of the agreement.
(n) Public meetings and hearings. All public meetings
or hearings required to be held pursuant to applicable law or regulation
will be directed and overseen by the department, with participation
by such other parties as it deems appropriate.
(o) Additional matters. Any matter not specifically
addressed in this subchapter which pertains to the acquisition, design,
development, financing, construction, reconstruction, extension, expansion,
maintenance, or operation of an eligible project pursuant to this
subchapter, shall be deemed to be within the primary purview of the
commission, and all decisions pertaining thereto, whether or not addressed
in this subchapter, shall be as determined by the commission, subject
to the provisions of applicable law.
(p) Performance and payment security. The department
shall require a private entity entering into a comprehensive development
agreement to provide a performance and payment bond or an alternative
form of security in an amount that, in the department's sole determination,
is sufficient to ensure the proper performance of the agreement, and
to protect the department and payment bond beneficiaries supplying
labor or materials to the private entity or a subcontractor of the
private entity. Bonds and alternate forms of security shall be in
the form and contain the provisions required in the request for proposals
or the comprehensive development agreement, with such changes or modifications
as the department determines to be in the best interest of the state.
In addition to, or in lieu of, performance and payment bonds, the
department may require:
(1) a cashier's check drawn on a federally insured
financial institution, and drawn to the order of the department;
(2) United States bonds or notes, accompanied by a
duly executed power of attorney and agreement authorizing the collection
or sale of the bonds or notes in the event of the default of the private
entity or a subcontractor of the private entity, or such other act
or event that, under the terms of the comprehensive development agreement,
would allow the department to draw upon or access such security;
(3) an irrevocable letter of credit issued or confirmed
by a financial institution to the benefit of the department, meeting
the credit rating and other requirements prescribed by the department,
and providing coverage for a period of at least one year following
final acceptance of the project and completion of any warranty period;
(4) an irrevocable letter signed by a guarantor meeting
the net worth or other financial requirements prescribed in the request
for proposals or comprehensive development agreement, and which guarantees,
to the extent required under the request for proposals or comprehensive
development agreement, the full and prompt payment and performance
when due of the private entity's obligations under the comprehensive
development agreement and other documents and agreements executed
by the private entity in connection with the comprehensive development
agreement; or
(5) any other form of security deemed suitable by the
department.
(q) Performance evaluations. The department will evaluate
the performance of a private entity that enters into a comprehensive
development agreement, and will evaluate the performance of the private
entity's major team members, consultants, and subcontractors, in accordance
with the requirements of this subsection. Evaluations will be conducted
annually at twelve month intervals during the term of the comprehensive
development agreement, upon termination of the comprehensive development
agreement, and when the department determines that work is materially
behind schedule or not being performed according to the requirements
of the comprehensive development agreement. Optional evaluations may
be conducted as provided in the comprehensive development agreement.
Acts or omissions that are the subject of a good faith dispute will
not be considered. After a performance evaluation is conducted, and
for at least 30 days before the evaluation becomes final and is used
by the department, the department will provide for review and comment
a copy of the performance evaluation report to the entity being evaluated
and, if that entity is a consultant or subcontractor, to the entity
that entered into the comprehensive development agreement. The department
will consider and take into account any submitted comments in finalizing
the performance evaluation report. The results of performance evaluations
will be provided to the entity that was evaluated and may be used
in the evaluation of qualifications submittals and proposals under §27.4
of this subchapter and §9.153 of this title (relating to Solicitation
of Proposals) by proposers that include the major team members, consultants,
and subcontractors evaluated.
|
| Source Note: The provisions of this §27.3 adopted to be effective July 18, 2002, 27 TexReg 6377; amended to be effective September 18, 2003, 28 TexReg 8005; amended to be effective August 19, 2004, 29 TexReg 7998; amended to be effective January 5, 2006, 30 TexReg 9000; amended to be effective May 17, 2007, 32 TexReg 2670; amended to be effective July 19, 2012, 37 TexReg 5339 |
