1. (a) Transportation Code, §91.102, authorizes the department to lease all or part of a rail facility or system to a rail operator and to contract with a rail operator for the use or operation of all or part of a rail facility or system. Transportation Code, §91.052, authorizes the department to enter into an agreement with a public entity, including a political subdivision of this state, to permit the entity, independently or jointly with the department, to acquire, construct, maintain, or operate a rail facility or system.
2. (b) The department may lease a rail facility acquired or constructed by the department to a public entity. The public entity shall comply with all applicable laws when contracting for the operation of the rail facility. The lease agreement shall provide for the department's monitoring of the rail operator's service and performance.
3. (c) The department will use a competitive process to obtain private rail operators for rail facilities acquired or constructed by the department. The department will publish a notice in the Texas Register and in a newspaper of general circulation in the area in which the rail facility is located, requesting proposals to lease and operate a department rail facility.

4. (d) In evaluating proposals submitted in response to a request under subsection (c) of this section, the department will consider the:

   1. (1) qualifications and capability of the proposer to operate the rail facility;
   2. (2) proposer's experience in constructing and maintaining rail facilities;
   3. (3) financial capability of the proposer to operate and maintain the rail facility;
   4. (4) relative effectiveness of the proposer's management team and staff;
   5. (5) extent to which the proposal minimizes the department's financial obligations in acquiring or maintaining the rail facility;
   6. (6) proposer's plan for maintaining and improving equipment, trackwork, and right of way, including the planned schedule for carrying out the maintenance and improvements and planned funding sources; and
   7. (7) proposer's planned operating rules and procedures for servicing markets served by the rail facility, including plans and proposed schedules for improving service and adding additional markets.
5. (e) The department will rank all proposals submitted in response to a request under subsection (c) of this section using the criteria set out in the request for proposals. The criteria will, at a minimum, include the factors listed in subsection (d) of this section. The department will negotiate a lease agreement with the highest ranked proposer.
6. (f) If an agreement satisfactory to the department cannot be negotiated with the proposer, the department will formally end negotiations with that proposer. The department may reject all proposals or proceed to the next highest ranked proposal and attempt to negotiate an agreement with that proposer.
7. (g) The executive director will submit to the commission a summary of the final terms of a lease agreement successfully negotiated with a public or private entity under this section. The commission may authorize the executive director to execute the agreement if it finds that the agreement is in the best interest of the state and furthers state, regional, and local transportation plans, programs, policies, and goals.

Source Note:The provisions of this §7.13 adopted to be effective January 5, 2006, 30 TexReg 8991.