The following words and terms, when used in this subchapter,
shall have the following meanings, unless the context clearly indicates
otherwise.
(1) Affiliate--An entity that directly or indirectly
controls, is controlled by, or is under common control with a private
entity.
(2) Certification of eligibility status form--A notarized
form describing any suspension, voluntary exclusion, ineligibility
determination actions by an agency of the federal government, indictment,
conviction, or civil judgment involving fraud or official misconduct,
each with respect to the proposer or any person associated with the
proposer in the capacity of owner, partner, director, officer, principal
investor, project director/supervisor, manager, auditor, or a position
involving the administration of federal funds, covering the three-year
period immediately preceding the date of the qualification statement.
(3) Commission--The Texas Transportation Commission.
(4) Comprehensive development agreement--An agreement
with a private entity that, at a minimum, provides for the design
and construction, reconstruction, extension, expansion, or improvement
of an eligible project and may also provide for the financing, acquisition,
maintenance, or operation of an eligible project.
(5) Confidential questionnaire--A prequalification
form reflecting detailed financial and experience data.
(6) Conflict of interest--A circumstance arising out
of the existing or past activities, business interests, contractual
relationships, or organizational structure of a consultant, proposer,
or developer, where:
(A) the private entity is or may be unable to give
impartial assistance or advice to the department;
(B) the private entity's objectivity in performing
the scope of work sought by the department is or might be otherwise
impaired;
(C) the private entity has an unfair competitive advantage;
(D) the private entity's performance of services on
behalf of the department provides or may provide an unfair competitive
advantage to a third party; or
(E) there is a reasonable perception or appearance
of impropriety or unfair competitive advantage benefiting the private
entity or a third party as a result of the private entity's participation
in a comprehensive development agreement project.
(7) Consultant--An individual or business entity, including
any division or affiliate of the entity, retained by the department
to provide consultant services in connection with a comprehensive
development agreement project. The term includes an individual or
business entity providing or that has provided services under contract
to a consultant, either directly or through a subconsultant, at any
level.
(8) Consultant services--All services provided to the
department by an independent contractor under a best value or qualifications
based procurement method, including architectural and engineering
services, right-of-way acquisition services, environmental services,
planning services, procurement services, traffic and revenue services,
project oversight services, financial services (including financial
advisory and banking services), and legal services.
(9) Control--The possession, directly or indirectly,
of the power to cause the direction of the management of the entity,
whether through voting securities, by contract, family relationship,
or otherwise.
(10) Debarment--Disqualification of a private entity
from submitting a qualification submittal or other proposal to the
department, as described in §§27.3 - 27.5 of this subchapter,
entering into a comprehensive development agreement, or participating
as a member of a proposer or developer team.
(11) Department--The Texas Department of Transportation.
(12) Design--Includes planning services, technical
assistance, and technical studies provided in support of the environmental
review process undertaken with respect to an eligible project, as
well as surveys, investigations, the development of reports, studies,
plans and specifications, and other professional services provided
for an eligible project.
(13) Design-build contract--A comprehensive development
agreement that includes the design and construction of a toll project,
does not include the financing of a toll project, and may include
the acquisition, maintenance, or operation of a toll project.
(14) Developer--A private entity (including any division
or affiliate of the entity) that has entered into a comprehensive
development agreement with the department.
(15) Eligible project--A project described in Transportation
Code, §223.201, and including a:
(A) toll project;
(B) state highway improvement project that includes
both tolled and nontolled lanes and that may include nontolled appurtenant
facilities;
(C) state highway improvement project in which the
private entity has an interest in the project;
(D) state highway improvement project financed wholly
or partly with the proceeds of private activity bonds, as defined
by Section 141(a), Internal Revenue Code of 1986;
(E) project that combines a toll project and a rail
facility as defined in Transportation Code, §91.001;
(F) nontolled state highway improvement project authorized
by the Texas Legislature; or
(G) project that combines two or more eligible projects
described in Transportation Code, §223.201(f).
(16) Environmental and planning services--Some or all
of the following services provided to the department with respect
to a comprehensive development agreement project:
(A) the study and evaluation of alternatives and potential
environmental impacts of the proposed project;
(B) preparation of environmental analysis and impact
documents relating to the project, including facility and corridor
analyses and draft and final environmental impact statements; and
(C) planning associated with the environmental approval,
permitting, and clearance process for the project.
(17) Executive director--The executive director of
the department or designee not below the level of assistant executive
director.
(18) Financial services--Some or all of the following
services provided to the department with respect to a comprehensive
development agreement project:
(A) acting in the capacity of financial advisor to
the department by providing advice on finance-related issues, including
development of short-term or long-term finance strategy and plans
of finance for individual projects or on an ongoing basis;
(B) identifying and pursuing sources of funds; and
(C) acting as underwriter (either lead or co-lead)
for a revenue bond issuance on a comprehensive development agreement
project or facility, but excluding underwriters for bonds that are
not related to a comprehensive development agreement project.
(19) Gift or benefit--Anything reasonably regarded
as pecuniary gain or pecuniary advantage, including any benefit or
favor to another person in whose welfare the beneficiary has a direct
and substantial interest, regardless of whether the donor is reimbursed.
The term includes, but is not limited to, cash, loans, meals, lodging,
services, tickets, door prizes, free entry to entertainment or sporting
events, transportation, or hunting or fishing trips.
(20) Legal services--Some or all of the following services
with respect to a comprehensive development agreement project:
(A) providing advice on legal issues and strategies
relating to project environmental approvals, planning, procurement,
financing, contract administration, risk management, and disputes,
claims, or litigation; and
(B) reviewing, drafting, and negotiating procurement
documents, project contracts, and other documents.
(21) Preliminary engineering and architectural services--Preparation
of preliminary design and architectural documents and reports, utility
and right-of-way mapping, and provision of similar technical documents
that will be incorporated by others into a request for qualifications,
request for competing proposals and qualifications, or request for
proposals, but not including the evaluation or selection of alignments
in connection with the development of environmental documents, assistance
with development of the solicitation documents, developer scope of
work/technical provisions, evaluation criteria for a procurement,
or other items that would constitute environmental services or procurement
services.
(22) Procurement services--Some or all of the following
services provided to the department with respect to a comprehensive
development agreement project:
(A) development of procurement strategy;
(B) development and preparation of the solicitation
documents, developer scope of work/technical provisions, or contract
documents;
Cont'd... |
