Wednesday, 9:00 a.m., May 31, 2000Commission Hearing Room
4200 Smith School Road
Austin, TX 78744
Agenda Item No.
|Approval of the Committee Minutes from the previous meeting.|
|Summary of Minutes|
|1.||Chairman's Charges (Oral Presentation)||Committee Only|
|2.||Financial Review and Fiscal
Year 2001 Budget Preview
Staff: Suzy Whittenton
Reinstatement of Reciprocal
License Agreement with
LA & OK
|4.|| Texas Outdoor Connection
License Point of Sale System
Staff: Suzy Whittenton
|5.||Senior Combination Licenses
Staff: Jayna Burgdorf
Staff: Larry McKinney
|7.||Proposal for Contract
Staff: Judy Doran
Summary of Minutes
Texas Parks and Wildlife Commission
April 5, 2000
BE IT REMEMBERED that heretofore on the 5th day of April 2000, there came to be heard matters under the regulatory authority of the Parks and Wildlife Commission of Texas, in the commission hearing room of the Texas Parks and Wildlife Headquarters complex, Austin, Travis County, Texas beginning at 11:12 p.m., to-wit:
Dick Heath, Chair
Lee M. Bass (absent)
Carol E. Dinkins
Ernest Angelo, Jr.
John Avila, Jr.
Alvin L. Henry
Katharine Armstrong Idsal
Mark E. Watson, Jr.
OPENING STATEMENT: Commissioner Dick Heath called the meeting to order.
APPROVAL OF MINUTES: Commissioner Dick Heath asked for a motion to approve the minutes from the January 19, 2000 meeting. The motion was moved by Commissioner Ernest Angelo, Jr. and seconded by Commissioner Nolan Ryan. The motion passed unanimously.
THE FOLLOWING ITEMS WERE PRESENTED TO THE COMMITTEE:
1. BRIEFING - Chairman’s Charges
Presenter: Mr. Andrew Sansom
A briefing was given regarding the process of renegotiating our contract to provide Texas Outdoor Connection to the citizens of our State. Development of the RFP for that service has been completed.
As far as monitoring and tracking current initiatives at the Federal level which would enhance funding for our programs, Commissioner Dinkins, Mr. Sansom and key TPW staff traveled to Washington to meet with the leadership of the House of Representatives regarding the CARA bill. The issue before the House is to try to get a vote scheduled on the floor. A companion Bill has been filed in the Senate that mirrors House Bill 701, but the Committee has not heard the bill to date. The Bill would revive the Land and Water Conservation Fund and provide funding for wildlife diversity. It could also be a major contributor to coastal issues and finance a buyback program.
2. BRIEFING – Financial Overview
Presenter: Ms. Suzy Whittenton
Account 9 Game, Fish and Water Safety comparisons showed that license revenue is up $1.9 million compared to prior year. With the updated license and boat revenue numbers, it is projected that we will have a cash balance at the end of the year of approximately $2 million. No revenue adjustment is recommended at this time.
Account 64, State Parks, comparing revenue through February of the prior year, is up 18.7%, amounting to a total of $1.4 million. This increase is primarily due to the bad weather we had last year. Preliminary revenue data from spring break looks to be up approximately 7% from last year. We have collected approximately 42% of the original revenue estimate for park fees, however we are not recommending a revenue adjustment at this time in case there’s a drought this summer. The cash statement for Account 64 is slightly higher than the one that was presented in January, due to additional Federal funds that are outlined under the category of "Other." It is projected that the ending balance for this account will be approximately $2 million.
The Fiscal Year 2000 operating budget status at the end of February, which is approximately halfway through the fiscal year, shows approximately 51% remaining funds. That number is 52% if you back out grant funds. Therefore, we are right on target with our operating budget.
Fiscal Year 2001 budget preparation has begun. We will be using the 95% budgeting technique again this year. We will analyze each division’s budget requests and look at the ratios between salary, operating expenses, and equipment to ensure that the budgets are consistent. Supplemental requests or anything over the 95% will be categorized and prioritized. As far as capital budgets, we will continue to focus on critical repairs. The budget will also include revenue from the remaining $12.7 million in revenue bonds, which will be the final issuance of the $60 million bond package. A preliminary budget, over 95%, will be presented at the next meeting and then final approval from the Commission will be sought in August. It was suggested that a meeting/workshop be scheduled between June 1 and August, so that the Commission can review the budgets and consider any critical decisions regarding the budgets prior to approving it in August.
We will be preparing a
request for Fiscal Years
2002 and 2003 that will
be considered at the next
Legislative Session. This
is the mechanism that we
use to ask for the authority
to spend our funds. We anticipate
a due date of mid-August
for this request, but the
due date and guidelines
have not been received to
3. BRIEFING – Texas Outdoor Connection License Point of Sale System
Presenter: Ms. Jayna Burgdorf
Ms. Burgdorf discussed the Point of Sale Licensing System. Last year, 3.2 million transactions brought in $65 million in revenue. We continue to have current system issues and are working with Transactive and their parent company, G-Tech, to resolve those issues. We want to ensure a smooth final year into our transition to a new system. One of the issues is printing problems. We are evaluating new paper at this time that has a glue strip between the actual license and the receipt that will keep the paper from slipping when it is printing. It is anticipated that our consumers will not notice this change. Also, internet transactions do not appear to be compatible with the current system, and so we will pilot that with our new system. We have decided to bid a new system and we do not recommend purchasing the existing one.
With regard to the new system, we have finalized the report with the consultant on the analysis of alternatives, issued a draft RFP for vendor comments, held a conference and an open house so that vendors could demonstrate their equipment, printers and the types of licenses they are doing for other states. The final RFP will be issued on April 10, 2000 and we should receive our bids by May 24. We also need to obtain the Legislative Budget Board approval on our biennial-operating plan (our technology plan) that we prepare every two years. We need their approval prior to proceeding with the transition. We plan to negotiate with a new contractor in June and hopefully sign a contract in July. The system design will continue through August. We will then develop the system September through December, pilot January through March, and roll it out for full implementation about this time next year.
Also discussed were two license issues for the upcoming license year. The first request is Commission approval to offer senior combination licenses and publish the proposal in the Texas Register. The second recommendation is offering mule deer tags as a totally free option. This could eliminate 2 tags off the license for those who do not hunt mule deer. Therefore, approximately 980,000 hunters would have a shorter license. This would also benefit Wildlife staff since they would have a record of those individuals who specifically request mule deer tags. Those individuals who opt to not take the mule deer tags, will have the opportunity to go back later and get them. This item does not need to be published in the Texas Register since it is just a format change and not a fee change.
ACTION – Proposal to Reinstatement of Reciprocal License Agreement with Louisiana and Oklahoma
Presenter: Mr. Ken Kurzawski
Commission approval was requested to publish proposed changes to our reciprocal fishing license agreements with Louisiana and Oklahoma in the Texas Register. Last August the exemption for out-of-state seniors from Oklahoma, Louisiana, and Kansas was eliminated. Therefore these residents now have to purchase a nonresident fishing license to fish here. Our annual license is $30 nonresident, or a five-day temporary for $20. With this being a reciprocal agreement, our seniors now have to purchase a license to fish in those states. Currently they run between $28.50 and $30 depending on the state. This change was prompted by complaints we received from our anglers in Texas, however we are receiving more complaints now that the reciprocal license has been eliminated because our anglers have to pay a substantial increase to go fish in those other states. The revenue in this matter is fairly insignificant.
A motion for approval to publish the proposed item in the Texas Register for public comment and consideration was made by Commissioner Dick Heath. The motion passed unanimously.
ACTION – Local Park Funding – Federal Urban Parks and Recreation Recovery Act Grants
Presenter: Mr. Tim Hogsett
The Urban Parks and Recreation Recovery Act is a Federal program which provides 70% matching grants to local governments for rehabilitation of recreation facilities that have fallen into disrepair in the urban areas of the State. This year Congress appropriated $2 million on a national basis, which no state is eligible for more than 15%. Therefore, Texas communities are eligible for only $300,000. The Government allows states to and offers and incentive for local governments, if states participate in providing part of the match for this program. States can provide 15% against the Federal 70%, for which that 15% would be matched dollar for dollar by the Federal Government. We recommend that we set aside $30,000, a 10% match, for those projects out of the Texas Recreation and Parks account. If the Federal Government didn’t approve $300,000 worth of projects, then any unused portion of the $30,000 match would go back into the account for normal grants. The Texas Recreation and Parks Society have been consulted and are in favor of this action.
A motion was moved by Commissioner Mark E. Watson, Jr. and seconded by Commissioner Katharine Armstrong Idsal to move the item to the full Commission. The motion passed unanimously.
V. ADJOURNMENT: Chairman Dick Heath adjourned the Finance Committee.
Committee Agenda Item No. 1
Presenter: Andrew Sansom
(This item will be an oral presentation.)
Committee Agenda Item No. 2
Presenter: Suzy Whittenton
Financial Review and Fiscal
Year 2001 Budget Preview
I. Discussion: Staff will present a financial review for year to date FY2000, including an update on Account 9, Game, Fish and Water Safety and Account 64, State Parks. This presentation will focus on the sale of hunting and fishing licenses, boat registration and titling fees, and state park fees. Updated budget and expenditure information will also be presented.
Staff will also present preliminary information on the development of the FY2001 operating, capital and grant budgets.
Agenda Item No. 3
Presenter: Ken Kurzawski
Reinstatement of Reciprocal
License Agreement with Louisiana
(This is Public Hearing Agenda Item No. 4.)
Agenda Item No. 4
Presenter: Suzy Whittenton
Texas Outdoor Connection
License Point of Sale System
I. Discussion: Staff will present an update regarding the status of the current license system and efforts to replace the system. This briefing will include information on recently received bids from vendors.
Agenda Item No. 5
Presenter: Jayna Burgdorf
Senior Combination Licenses
(This is Public Hearing Agenda Item No. 5.)
Agenda Item No. 6
Presenter: Larry McKinney
Saltwater Sportfishing Stamp
(This is Public Hearing Agenda Item No. 6.)
Agenda Item No. 7
Presenter: Judy Doran
Contract Dispute Resolution
I. Discussion: Staff will present proposed rules that set out a procedure of TPWD contract claims. The rules are for resolution required by Texas Government Code, Chapter 2260.
II. Recommendation: The staff recommends the Finance Committee adopt the following motion:
"The Finance Committee of Texas Parks and Wildlife Commission authorizes the staff to publish the proposed 31 TAC Section 2000, as shown in Exhibit A, in the Texas Register for public comment."
Attachment – 1
1. Exhibit A – Proposed Rules
Agenda Item No. 7
These rules are intended to serve as guidelines for units of state government for the negotiation and mediation of a claim of breach of contract asserted by a contractor against Texas Parks and Wildlife Department under the Government Code, Chapter 2260. These rules are not intended to replace agency procedures relating to breach of contract claims that are mandated by state or federal law, but are intended to provide procedures when none are so mandated.
2. Fiscal Note.
Melanie Callahan, Finance Director, has determined that for each of the first five years that the proposed new section is in effect, there will be no negative financial implication to state or local governments as a result of enforcing or administering the proposed new section.
- Public Benefit - Cost Note
- The public benefit anticipated as a result of the amended rules as proposed will be increased satisfaction of those who contract with the department, adding more consistency and fairness to resolution of contract disputes.
- There will be no effect on small businesses. There is no economic costs to persons required to comply with the new amended rules as proposed because the rules allow for a procedure to resolve contract claims.
- The department has not filed a local impact statement with the Texas Workforce Commission as required by Government Code Section 2001.022, as the agency has determined that the rule will not impact local economies.
- The department has determined that thee will not be taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rules.
2. Request for Public Comments.
Comments on the proposed rules will be solicited and submitted to Judith Doran, Texas Parks and Wildlife Department, 4200 Smith School road, Austin, Texas 78744.
3. Statutory Authority
The proposed rules are authorized by Government Code chapter 2260 and Parks and Wildlife Code Chapter 11.
(a) This chapter does not apply to an action of Texas Parks and Wildlife Department for which a contractor is entitled to a specific remedy pursuant to state or federal constitution or statute.
(B) This chapter does not apply to contracts:
(1) between Texas Parks and Wildlife Department and the federal government or its agencies, another state or another nation;
(2) between two or more units of state government;
(3) between Texas Parks and Wildlife Department and a local governmental body, or a political subdivision of another state;
(4 )between a subcontractor and a contractor;
(5) subject to §201.112 of the Transportation Code;
(6) within the exclusive jurisdiction of state or local regulatory bodies;
(7) within the exclusive jurisdiction of federal courts or regulatory bodies; or
(8) that are solely and entirely funded by federal grant monies other than for a project defined in .5.(10);
The following words and terms, when used in this chapter, shall have the following meaning, unless the context clearly indicates otherwise:
(1) Chief administrative officer - The executive director, or other executive officer responsible for the day to day operations of Texas Parks and Wildlife Department.
(2) Claim - A demand for damages by the contractor based upon the Texas Parks and Wildlife Department's alleged breach of the contract.
(3) Contract - A written contract between Texas Parks and Wildlife Department and a contractor by the terms of which the contractor agrees either:
(A) to provide goods or services, by sale or lease, to or for Texas Parks and Wildlife Department; or
(B) to perform a project as defined by Government Code, §2166.001.
(4) Contractor - Independent contractor who has entered into a contract directly with Texas Parks and Wildlife Department. The term does not include:
(A) The contractor's subcontractor, officer, employee, agent or other person furnishing goods or services to a contractor;
(B) An employee of Texas Parks and Wildlife Department; or
(C) A student at an institution of higher education.
(5) Counterclaim - A demand by the Texas Parks and Wildlife Department based upon the contractor's claim.
(6) Day - A calendar day. If an act is required to occur on a day falling on a Saturday, Sunday, or holiday, the first working day which is not one of these days should be counted as the required day for purpose of this act.
(7) Event - An act or omission or a series of acts or omissions giving rise to a claim.
(8) Goods - Supplies, materials or equipment.
(9) Parties - The contractor and Texas Parks and Wildlife when they have entered into a contract in connection with which a claim of breach of contract has been filed under this chapter.
(10) Project - As defined in Government Code §2166.001, a building construction project that is financed wholly or partly by a specific appropriation, bond issue or federal money, including the construction of
(A) a building, structure, or appurtenant facility or utility, including the acquisition and installation of original equipment and original furnishing; and
(B) an addition to, or alteration, modification, rehabilitation or repair of an existing building, structure, or appurtenant facility or utility
(11) Services - The furnishing of skilled or unskilled labor or consulting or professional work, or a combination thereof, excluding the labor of an employee of Texas Parks and Wildlife Department.
.3. Prerequisites to Suit
The procedures contained in this chapter are exclusive and required prerequisites to suit under the Civil Practice & Remedies Code, Chapter 107, and the Government Code, Chapter 2260.
.5. Sovereign Immunity.
This chapter does not waive Texas Parks and Wildlife Department's sovereign immunity to suit or liability.
Subchapter B: NEGOTIATION OF CONTRACT DISPUTES
.21. Notice of Claim of Breach of Contract.
(a) A contractor asserting a claim of breach of contract under the Government Code, Chapter 2260, shall file notice of the claim as provided by this section.
(b) The notice of claim shall:
(1) be in writing and signed by the contractor or the contractor's authorized representative;
(2) be delivered by hand, certified mail return receipt requested, or other verifiable delivery service, to the officer of the Texas Parks and Wildlife Department designated in the contract to receive a notice of claim of breach of contract under the Government Code, Chapter 2260; if no person is designated in the contract, the notice shall be delivered to the unit's chief administrative officer, and
(3) state in detail:
(A) the nature of the alleged breach of contract, including the date of the event that the contractor asserts as the basis of the claim and each contractual provision allegedly breached;
(B) a description of damages that resulted from the alleged breach, including the amount and method used to calculate those damages; and
(C) the legal theory of recovery, i.e., breach of contract, including the causal relationship between the alleged breach and the damages claimed.
(c) In addition to the mandatory contents of the notice of claim as required by subsection (b) of this section, the contractor may submit supporting documentation or other tangible evidence to facilitate the unit's evaluation of the contractor's claim.
(d) The notice of claim shall be delivered no later than 180 days after the date of the event that the contractor asserts as the basis of the claim; provided, however, that a contractor shall deliver notice of a claim that was pending before Texas Parks and Wildlife Department on August 30, 1999, to the unit no later than February 26, 2000.
.23. Agency Counterclaim.
(a) Texas Parks and Wildlife Department asserting a counterclaim under the Government Code, Chapter 2260, shall file notice of the counterclaim as provided by this section.
(b) The notice of counterclaim shall:
(1) be in writing;
(2) be delivered by hand, certified mail return receipt requested or other verifiable delivery service to the contractor or representative of the contractor who signed the notice of claim of breach of contract; and
(3) state in detail:
(A) the nature of the counterclaim;
(B) a description of damages or offsets sought, including the amount and method used to calculate those damages or offsets; and
(C) the legal theory supporting the counterclaim.
(c) In addition to the mandatory contents of the notice of counterclaim required by subsection (b) of this section, the unit may submit supporting documentation or other tangible evidence to facilitate the contractor's evaluation of the unit's counterclaim.
(d) The notice of counterclaim shall be delivered to the contractor no later than 90 days after the Texas Parks and Wildlife Department's receipt of the contractor's notice of claim.
(e) Nothing herein precludes the Texas Parks and Wildlife Department from initiating a lawsuit for damages against the contractor in a court of competent jurisdiction.
.25. Request for Voluntary Disclosure of Additional Information.
(a) Upon the filing of a claim or counterclaim, parties may request to review and copy information in the possession or custody or subject to the control of the other party that pertains to the contract claimed to have been breached, including, without limitation:
(1) accounting records;
(2) correspondence, including, without limitation, correspondence between the unit and outside consultants it utilized in preparing its bid solicitation or any part thereof or in administering the contract, and correspondence between the contractor and its subcontractors, materialmen, and vendors;
(4) the parties' internal memoranda;
(5) documents created by the contractor in preparing its offer to the unit and documents created by the unit in analyzing the offers it received in response to a solicitation.
(b) Subsection (a) of this section applies to all information in the parties' possession regardless of the manner in which it is recorded, including, without limitation, paper and electronic media.
(c) The contractor and the Texas Parks and Wildlife Department may seek additional information directly from third parties, including, without limitation, the unit's third-party consultants and the contractor's subcontractors.
(d) Nothing in this section requires any party to disclose the requested information or any matter that is privileged under Texas law.
(e) Material submitted pursuant to this subsection and claimed to be confidential by the contractor shall be handled pursuant to the requirements of the Public Information Act.
.27. Duty to Negotiate.
The parties shall negotiate in accordance with the timetable set forth in §68.29 of this chapter (relating to Timetable) to attempt to resolve all claims and counterclaims. No party is obligated to settle with the other party as a result of the negotiation.
(a) Following receipt of a contractor's notice of claim, the executive director of Texas Parks and Wildlife Department or other representative designated in the contract shall review the contractor's claim(s) and the unit's counterclaim(s), if any, and initiate negotiations with the contractor to attempt to resolve the claim(s) and counterclaim(s).
(b) Subject to subsection (c) of this section, the parties shall begin negotiations within a reasonable period of time, not to exceed 60 days following the later of:
(1) the date of termination of the contract;
(2) the completion date, or substantial completion date in the case of construction projects, in the original contract; or
(3) the date the Texas Parks and Wildlife Department receives the contractor's notice of claim.
(c) Texas Parks and Wildlife Department may delay negotiations until after the 180th day after the date of the event giving rise to the claim of breach of contract by:
(1) delivering written notice to the contractor that the commencement of negotiations will be delayed; and
(2) delivering written notice to the contractor when the unit is ready to begin negotiations.
(d) The parties may conduct negotiations according to an agreed schedule as long as they begin negotiations no later than the deadlines set forth in subsections (b) or (c) of this section, whichever is applicable.
(e) Subject to subsection (f) of this section, the parties shall complete the negotiations that are required by this chapter as a prerequisite to a contractor's request for contested case hearing no later than 270 days after the Texas Parks and Wildlife Department receives the contractor's notice of claim.
(f) The parties may agree in writing to extend the time for negotiations on or before the 270th day after the Texas Parks and Wildlife Department receives the contractor's notice of claim. The agreement shall be signed by representatives of the parties with authority to bind each respective party and shall provide for the extension of the statutory negotiation period until a date certain. The parties may enter into a series of written extension agreements that comply with the requirements of this section.
(g) The contractor may request a contested case hearing before the State Office of Administrative Hearings ("SOAH") pursuant to §68.39 of this title (relating to Request for Contested Case Hearing) after the 270th day after the unit receives the contractor's notice of claim, or the expiration of any extension agreed to under subsection (f) of this section.
(h) The parties may agree to mediate the dispute at any time before the 270th day after the Texas Parks and Wildlife Department receives the contractor's notice of claim or before the expiration of any extension agreed to by the parties pursuant to subsection (f) of this section. The mediation shall be governed by Subchapter C of this chapter.
(i) Nothing in this section is intended to prevent the parties from agreeing to commence negotiations earlier than the deadlines established in subsections (b) and (c) of this section, or from continuing or resuming negotiations after the contractor requests a contested case hearing before SOAH.
.31.Conduct of Negotiation.
(a) Negotiation is a consensual bargaining process in which the parties attempt to resolve a claim and counterclaim. A negotiation under this subchapter may be conducted by any method, technique, or procedure authorized under the contract or agreed upon by the parties, including, without limitation, negotiation in person, by telephone, by correspondence, by video conference, or by any other method that permits the parties to identify their respective positions, discuss their respective differences, confer with their respective advisers, exchange offers of settlement, and settle.
(b) The parties may conduct negotiations with the assistance of one or more neutral third parties. If the parties choose to mediate their dispute, the mediation shall be conducted in accordance with Subchapter C of this chapter. Parties may choose an assisted negotiation process other than mediation, including without limitation, processes such as those described in Subchapter D of this chapter.
(c) To facilitate the meaningful evaluation and negotiation of the claim(s) and any counterclaim(s), the parties may exchange relevant documents that support their respective claims, defenses, counterclaims or positions.
(d) Material submitted pursuant to this subsection and claimed to be confidential by the contractor shall be handled pursuant to the requirements of the Public Information Act.
.33. Settlement Approval Procedures.
The parties' settlement approval procedures shall be disclosed prior to, or at the beginning of, negotiations. To the extent possible, the parties shall select negotiators who are knowledgeable about the subject matter of the dispute, who are in a position to reach agreement, and who can credibly recommend approval of an agreement
.35. Settlement Agreement.
(a)A settlement agreement may resolve an entire claim or any designated and severable portion of a claim.
(b)To be enforceable, a settlement agreement must be in writing and signed by representatives of the contractor and the Texas Parks and Wildlife Department who have authority to bind each respective party.
(c)A partial settlement does not waive a parties' rights under the Government Code, Chapter 2260, as to the parts of the claims or counterclaims that are not resolved.
.37 Costs of Negotiation.
Unless the parties agree otherwise, each party shall be responsible for its own costs incurred in connection with a negotiation, including, without limitation, the costs of attorney's fees, consultant's fees and expert's fees.
.39. Request for Contested Case Hearing.
(a) If a claim for breach of contract is not resolved in its entirety through negotiation, mediation or other assisted negotiation process in accordance with this chapter on or before the 270th day after the unit receives the notice of claim, or after the expiration of any extension agreed to by the parties pursuant to §68.29(f) of this chapter (relating to Timetable), the contractor may file a request with the Texas Parks and Wildlife Department for a contested case hearing before SOAH.
(b) A request for a contested case hearing shall state the legal and factual basis for the claim, and shall be delivered to the chief administrative officer of the Texas Parks and Wildlife Department or other officer designated in the contract to receive notice within a reasonable time after the 270th day or the expiration of any written extension agreed to pursuant to §68.29(f) of this chapter.
(c)The Texas Parks and Wildlife Department shall forward the contractor's request for contested case hearing to SOAH within a reasonable period of time, not to exceed thirty days, after receipt of the request.
(d)The parties may agree to submit the case to SOAH before the 270th day after the notice of claim is received by the Texas Parks and Wildlife Department if they have achieved a partial resolution of the claim or if an impasse has been reached in the negotiations and proceeding to a contested case hearing would serve the interests of justice.
Subchapter C. MEDIATION OF CONTRACT DISPUTES
.47. Mediation Timetable.
(a)The contractor and Texas Parks and Wildlife Department may agree to mediate the dispute at any time before the 270th day after the Texas Parks and Wildlife Department receives a notice of claim of breach of contract, or before the expiration of any extension agreed to by the parties in writing.
(b)A contractor and Texas Parks and Wildlife Department may mediate the dispute even after the case has been referred to SOAH for a contested case. SOAH may also refer a contested case for mediation pursuant to its own rules and guidelines, whether or not the parties have previously attempted mediation.
.49. Conduct of Mediation.
(a)Mediation is a consensual process in which an impartial third party, the mediator, facilitates communication between the parties to promote reconciliation, settlement, or understanding among them. A mediator may not impose his or her own judgment on the issues for that of the parties. The mediator must be acceptable to both parties.
(b)The mediation is subject to the provisions of the Governmental Dispute Resolution Act, Government Code, Chapter 2009. For purposes of this subchapter, "mediation" is assigned the meaning set forth in the Civil Practice and Remedies Code, §154.023.
(c)To facilitate a meaningful opportunity for settlement, the parties shall, to the extent possible, select representatives who are knowledgeable about the dispute, who are in a position to reach agreement, or who can credibly recommend approval of an agreement.
.51. Agreement to Mediate.
(a)Parties may agree to use mediation as an option to resolve a breach of contract claim at the time they enter into the contract and include a contractual provision to do so. The parties may mediate a breach of contract claim even absent a contractual provision to do so if both parties agree.
(b)Any agreement to mediate should include consideration of the following factors:
(1)The source of the mediator. Potential sources of mediators include governmental officers or employees who are qualified as mediators under Section 154.052, Civil Practice and Remedies Code, private mediators, SOAH, the Center for Public Policy Dispute Resolution at The University of Texas School of Law, an alternative dispute resolution system created under Chapter 152, Civil Practice and Remedies Code, or another state or federal agency or through a pooling agreement with several state agencies. Before naming a mediator source in a contract, the parties should contact the mediator source to be sure that it is willing to serve in that capacity. In selecting a mediator, the parties should use the qualifications set forth in subsection §68.53 (qualifications and immunity of mediator).
(2)The time period for the mediation. The parties should allow enough time in which to make arrangements with the mediator and attending parties to schedule the mediation, to attend and participate in the mediation, and to complete any settlement approval procedures necessary to achieve final settlement. While this time frame can vary according to the needs and schedules of the mediator and parties, it is important that the parties allow adequate time for the process.
(3)The location of the mediation.
(4)Allocation of costs of the mediator.
(5)The identification of representatives who will attend the mediation on behalf of the parties, if possible, by name or position within the governmental unit or contracting entity.
(6)The settlement approval process in the event the parties reach agreement at the mediation.
.53. Qualifications and Immunity of the Mediator.
(a)The mediator shall possess the qualifications required under Civil Practice and Remedies Code, §154.052, be subject to the standards and duties prescribed by Civil Practice and Remedies Code, §154.053 and have the qualified immunity prescribed by Civil Practice and Remedies Code, §154.055, if applicable.
(b)The parties should decide whether, and to what extent, knowledge of the subject matter and experience in mediation would be advisable for the mediator.
(c)The parties should obtain from the prospective mediator the ethical standards that will govern the mediation.
.55. Confidentiality of Mediation and Final Settlement Agreement.
(a)A mediation conducted under this section is confidential in accordance with Government Code, §2009.054.
(b)The confidentiality of a final settlement agreement to which Texas Parks and Wildlife Department is a signatory that is reached as a result of the mediation is governed by Government Code, Chapter 552.
.57. Costs of Mediation.
Unless the contractor and Texas Parks and Wildlife Department agree otherwise, each party shall be responsible for its own costs incurred in connection with the mediation, including costs of document reproduction for documents requested by such party, attorney's fees, and consultant or expert fees. The costs of the mediation process itself shall be divided equally between the parties.
.59. Settlement Approval Procedures.
The parties' settlement approval procedures shall be disclosed by the parties prior to the mediation. To the extent possible, the parties shall select representatives who are knowledgeable about the subject matter of the dispute, who are in a position to reach agreement, and who can credibly recommend approval of an agreement.
.61. Initial Settlement Agreement.
Any settlement agreement reach during the mediation shall be signed by the representatives of the contractor and the Texas Parks and Wildlife Department, and shall describe any procedures required to be followed by the parties in connection with final approval of the agreement.
.63. Final Settlement Agreement.
(a)A final settlement agreement reached during, or as a result of mediation, that resolves an entire claim or any designated and severable portion of a claim shall be in writing and signed by representatives of the contractor and the Texas Parks and Wildlife Department who have authority to bind each respective party.
(b)If the settlement agreement does not resolve all issues raised by the claim and counterclaim, the agreement shall identify the issues that are not resolved.
(c)A partial settlement does not waive a contractor's rights under the Government Code, Chapter 2260, as to the parts of the claim that are not resolved.
.65. Referral to the State Office of Administrative Hearings.
If mediation does not resolve all issues raised by the claim, the contractor may request that the claim be referred to SOAH by the Texas Parks and Wildlife Department. Nothing in these rules prohibits the contractor and Texas Parks and Wildlife Department from mediating their dispute after the case has been referred for contested case hearing, subject to the rules of SOAH.
Subchapter D. ASSISTED NEGOTIATION PROCESSES
.71. Assisted Negotiation Processes.
Parties to a contract dispute under Government Code, Chapter 2260 may agree, either contractually or when a dispute arises, to use assisted negotiation (alternative dispute resolution) processes in addition to negotiation and mediation to resolve their dispute.
.73. Alternative dispute Resolution.
Parties to a contract dispute under these rules may agree, either contractually or when a dispute arises to use an Alternative Dispute Resolution process in addition to negotiation and mediation to resolve their disputes.
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