Part 1.
TEXAS DEPARTMENT OF TRANSPORTATION
Chapter 5.
FINANCE
Subchapter E. PASS-THROUGH FARES AND TOLLS
43 TAC §§5.51 - 5.59
The Texas Department of Transportation (department) proposes
amendments to §§5.51-5.59, concerning pass-through fares and tolls.
EXPLANATION OF PROPOSED AMENDMENTS
House Bill 2702, 79th Legislature, Regular Session, 2005, amended Transportation
Code, §222.104, which governs agreements providing for pass-through tolls.
Transportation Code, §222.104, requires changes to the rules to address
the new statutory provisions allowing pass-through toll payments made by a
public or private entity to the department and addresses additional subjects
that can be included in an agreement providing for pass-through tolls. House
Bill 2702 also added Transportation Code, §91.075, to allow the payment
of pass-through fares on railway projects.
In addition, the department has now entered into several pass-through agreements
under its current rules. Practical experience with these agreements has suggested
ways in which the rules may be improved, so amendments are desirable to reflect
that experience.
Section 5.51 is amended to include the new statutory language adding design,
development, and financing as subjects suitable for a pass-through agreement.
Section 5.51 is also amended to reference new Transportation Code, §222.104(c),
which allows the department to receive a pass-through toll payment from a
public or private entity. In addition, §5.51 is amended to reference
new Transportation Code, §91.075(b), which allows pass-through fares
on railway projects.
Section 5.52, concerning Definitions, is revised to add new definitions,
delete definitions that are no longer necessary, and amend existing language.
Paragraph (3) is amended to generalize the definition of department estimate
so it will apply equally whether the department is paying or receiving pass-through
tolls or fares.
For the same reason, paragraph (4) is amended to delete the definition
of developer. Throughout the amended rules, the term developer is replaced
by the term public or private entity.
New paragraph (6) is added to clarify that references to a highway include
facilities necessary or convenient to the highway's construction.
New paragraph (8) is added to define the term pass-through agreement. The
use of this term allows general references that will address both pass-through
tolls and pass-through fares.
New paragraph (9) is added to define the term pass-through fare. The definition
establishes that the term includes both passenger and freight rail and encompasses
fares, surcharges, and user fees. Otherwise, the definition tracks the statutory
language.
New paragraph (10) is amended so the definition of pass-through toll will
more closely track the statutory language.
New paragraph (11) is added to define the phrase public or private entity,
which is used throughout the rules to identify the entity with which the department
may enter a pass-through agreement. This phrase replaces the term developer,
which is used in the current rules, and is no longer appropriate because the
law now allows the department to be the entity that develops a project.
New paragraph (12) is added to define railway so that it includes both
passenger and freight rail and any facility in connection with a railway.
This definition is essential to achieving the purpose of House Bill 2702 in
allowing pass-through fares on any railway project.
Section 5.53(a), paragraph (1) is amended to require submission of a project
location map with the public or private entity's proposal. Experience has
shown that a project location map is extremely useful to the department in
evaluating proposals.
Section 5.53(a), paragraph (5) is amended to clarify that experience in
developing highway projects is only relevant if the pass-through agreement
is for a highway project. Section 5.53(a), new paragraph (6) is added to impose
a corresponding requirement for a statement of experience with regard to a
pass-through agreement for a railway project. Subsequent paragraphs are renumbered.
Section 5.53(a), renumbered paragraph (7) is amended to clarify that information
on development experience is unnecessary if the proposer will not be the one
developing the project.
New paragraph (8) is added to address the corresponding situation in which
the project will be developed by the department and the proposer will be making
payments; the proposer must then provide information sufficient to show the
proposer's ability to make the promised payments.
Section 5.53(a), paragraph (10) is amended to clarify that information
on tolling is only necessary and relevant if the project will be for a highway.
Section 5.53(a), paragraph (11) is amended to clarify that information
about the proposer's intention to enter a comprehensive development agreement
is only necessary and relevant if the project will be for a highway.
Section 5.53(c) is amended to distinguish between highway and railway projects.
For highway projects, the relevant citation for comprehensive development
agreements is 43 TAC Chapter 27, while the corresponding citation for comprehensive
development agreements for railway projects is 43 TAC Chapter 7.
Section 5.54 is amended to improve the grammatical construction. In addition,
the amendments clarify that the initial approval by the Texas Transportation
Commission (commission) permits the executive director to negotiate financial
terms of a pass-through agreement, but that the detailed agreement itself
will be negotiated after final commission approval of the financial terms.
The amendments to paragraphs (3), (7), (8), and (9), clarify when certain
requirements are only relevant to highway projects and impose corresponding
requirements for railway projects. Paragraph (10) is amended to require additional
information about the proposer's financial capability when the department
will be constructing a project in reliance on future pass-through payments
from the proposer.
Section 5.55(c) is amended to recognize that some of the listed factors
will not be relevant to all pass-through agreements and to add the financial
capability of the proposer as one of the criteria to be considered in evaluating
proposals.
Section 5.55(g) is amended to recognize that the department cannot know
in advance whether negotiations will be successful.
Section 5.56(a) is amended to reflect that at the time of commission approval,
the department and the proposer will have negotiated the financial terms of
the agreement, but may not have reached agreement on every word of a contract.
Final commission authorization will be based on various criteria, including
the new criterion that the project will serve the public interest and not
merely a private interest. This criterion is added to ensure that the public
interest is always paramount, particularly when a private entity is the proposer.
Section 5.56, new subsection (b), is added to list the required terms of
any pass-through agreement. These terms combine in one place various terms
that were previously implicit in several rules or were located in former §5.58(e).
Experience with the pass-through mechanism has indicated that it is possible
and desirable to combine the financial terms and project development terms
in a single legal document. The list of matters that must be addressed in
a pass-through agreement also includes items that have been shown through
experience to be useful, such as a map of the project, a project schedule,
and an estimated project budget.
Section 5.57, new subsection (a), is added to provide a method for calculating
pass-through fares for railway projects. In concept, the methodology is similar
to and runs parallel to the methodology used to establish pass-through tolls
and considered in more detail in connection with new subsection (b). Subsection
(a)(2)(B) allows pass-through fares to be calculated on any reasonable basis,
including number, type, and class of passengers; type of freight; tonnage
of freight; number or type of cars; mileage traveled; or characteristics of
track. This flexibility is essential to allow pass-through fares to be tailored
to the particular circumstances of a given railway.
New subsection (b)(1) of §5.57 is amended to clarify the standards
to be considered by the commission in establishing the level of pass-through
tolls. This includes rewording to improve the structure and clarity of the
standards. One standard is added to ensure that the commission considers any
benefit from the more rapid construction of a project. Amendments to this
paragraph also clarify that the commission will not approve a level of pass-through
tolls that exceed the department's cost estimate except by an amount equal
to the savings realized through earlier construction of the project. Finally,
the amended paragraph establishes that the commission will not compensate
a public or private entity for its financing costs. As a whole, the amendments
to new subsection (b)(1) establish necessary parameters that are designed
to encourage the proper use of pass-through tolls while curbing demands that
could result in excessive expenditures from the state highway fund.
Section 5.57(b)(2) is amended to improve the clarity of its original meaning
by improving the grammatical structure. Paragraph (2), subparagraph (B) is
rewritten to generalize the types of pass-through toll that will be allowed
and to add whether the highway is tolled as a possible basis for varying pass-through
toll payments. Paragraph (3) is rewritten to clarify the existing procedure
with regard to overruns and underruns and to add a corresponding provision
governing overruns and underruns when a project will be developed by the department.
The provision governing overruns and underruns when a project will be developed
by the department places the risk of overruns and underruns on the public
or private entity unless the commission directs otherwise. Paragraph (3),
subparagraph (B) rewrites the provision governing traffic volume to clarify
the existing procedure.
Section 5.58(a) is amended to permit department, rather than commission,
approval of environmental review. This allows projects to proceed expeditiously
after receiving the commission's final approval of financial terms. New subsection
(b) is added to establish procedures for right of way acquisition and the
adjustment of utilities. In general, a public or private entity is required
to follow the same procedures as would apply to the department. For right
of way acquisition, alternative procedures may be approved if it would be
sufficient to meet legal requirements.
Section 5.58, new subsection (c), is amended to make explicit that the
standards in the former rule are intended for application to highway projects
under the former rule and to establish design criteria for railway projects.
The design criteria for railway projects are comparable in scope and nature
to the preexisting design criteria for highway projects. Former subsection
(c) is deleted because the specific provisions previously considered for a
separate project development agreement will now be handled in a single pass-through
toll agreement. This provides for a single definitive legal document and thus
reduces the department's legal risk, and it also reflects the department's
successful experience to date in negotiating pass-through agreements that
are complete and comprehensive.
Section 5.59 is amended to clarify the distinction between the standards
applicable to highways and those applicable to railways. New subsection (d)
is added to establish maintenance standards for railways. The railway maintenance
standards are comparable in scope and nature to the preexisting maintenance
standards for highways.
FISCAL NOTE
James Bass, Chief Financial Officer, has determined that for each of the
first five years the amendments as proposed are in effect, there will be no
fiscal implications for state or local governments as a result of enforcing
or administering the amendments. There are no anticipated economic costs for
persons required to comply with the amendments as proposed.
Mr. Bass has certified that there will be no significant impact on local
economies or overall employment as a result of enforcing or administering
the amendments.
PUBLIC BENEFIT
Mr. Bass has also determined that for each year of the first five years
the amendments are in effect, the public benefit anticipated as a result of
enforcing or administering the amendments will be enhanced public understanding
of the use of pass-through agreements and increased efficiency in the use
of pass-through agreements to facilitate needed highway and railway improvements.
There will be no adverse economic effect on small businesses.
SUBMITTAL OF COMMENTS
Written comments on the amendments may be submitted to James Bass, Chief
Financial Officer, Texas Department of Transportation, 125 East 11th Street,
Austin, Texas 78701-2483. The deadline for receipt of comments is 5:00 p.m.
on March 13, 2006.
STATUTORY AUTHORITY
The amendments are proposed under Transportation Code, §201.101, which
provides the commission with the authority to establish rules for the conduct
of the work of the department, and more specifically, Transportation Code, §222.104,
which authorizes the department to enter agreements for pass-through tolls,
and Transportation Code, §91.075, which authorizes the department to
enter agreements for pass-through fares.
CROSS REFERENCE TO STATUTE
Transportation Code, §91.075, and §222.104.
§5.51.Purpose.
Transportation Code, §222.104(b) authorizes the Texas Department
of Transportation to enter into an agreement with a public or private entity
that provides for the payment of pass-through tolls to the public or private
entity as reimbursement for the
design, development, financing,
construction,
maintenance, or operation of a toll or non-toll facility on the state highway
system by the public or private entity.
Transportation Code, §222.104(c)
authorizes the department to enter into an agreement with a private entity
that provides for the payment of pass-through tolls to the department as reimbursement
for the department's design, development, financing, construction, maintenance,
or operation of a toll or non-toll facility on the state highway system by
the public or private entity. Transportation Code, §91.075(b) authorizes
the department to enter into an agreement with a public or private entity
that provides for the payment of pass-through fares to the public or private
entity as reimbursement for the acquisition, design, development, financing,
construction, relocation, maintenance, or operation of a passenger railway
facility or a freight railway facility by the entity.
This subchapter
prescribes the policies and procedures governing the department's implementation
of
these statutory provisions
[
§5.52.Definitions.
The following words and terms, when used in this subchapter, shall
have the following meanings, unless the context clearly indicates otherwise.
(1)
Commission--The Texas Transportation Commission.
(2)
Department--The Texas Department of Transportation.
(3)
Department estimate--An estimate of what it would cost
the department to
perform
[
[
(4)
[
(5)
[
(6)
Highway--Includes any facility convenient
or necessary to the operation of a highway.
(7)
Operation--Includes maintenance.
(8)
Pass-through agreement--A pass-through
toll agreement or a pass-through agreement entered under the terms of this
subchapter by the department and a public or private entity.
(9)
Pass-through fare--A dollar amount, including
a surcharge or user fee for freight shipments, that is tied to a measure of
actual usage of a railway and is used under this subchapter as a means of
calculating payments made by one entity to another to provide reimbursement
for some or all of the costs of acquiring, designing, developing, financing,
constructing, relocating, maintaining, or operating a passenger or freight
railway.
(10)
[
(11)
Public or private entity--Any entity authorized
by law to enter into a pass-through agreement with the department under this
subchapter for the acquisition, design, development, financing, construction,
relocation, maintenance, or operation of a highway or railway.
(12)
Railway--Includes both passenger and freight
railways and any facility convenient or necessary to the operation of a railway.
§5.53.Proposal.
(a)
A
public or private
[
(1)
a
project location map showing proposed alignments
and
description of the project, including the project limits, connections
with other transportation facilities, and
any
[
(2)
a statement of the benefits anticipated to result from
completion of the project;
(3)
a description of the local public support for the project
and any local public opposition;
(4)
a proposed project development and implementation schedule;
(5)
a description of the entity's experience in developing
highway projects, if the proposer is a public entity
and if the proposal
is for the development of a highway project by that entity
;
(6)
a description of the entity's experience
in developing railway projects, if the proposer is a public entity and if
the proposal is for the development of a railway project by that entity;
(7)
[
(8)
complete information sufficient to show
the capability of the proposer to make all projected future payments, if the
proposal is for the development of a project by the department;
(9)
[
(10)
[
(11)
[
(b)
If requested, and unless prohibited by law, the department
will release to the public a proposal submitted under this section.
(c)
The private entity and the department may agree to develop
a project under a comprehensive development agreement if authorized by other
law.
For a highway project that is developed by the proposer, notwithstanding
[
§5.54.Commission Approval To [
The commission may authorize the executive director to negotiate
the financial terms of a potential pass-through
[
(1)
financial benefits to the state;
(2)
local public support for the project;
(3)
for a highway project,
whether the project is
in the department's Unified Transportation Program;
(4)
the
extent to which the project will relieve
congestion on the state highway system;
(5)
potential benefits to regional air quality that may be
derived from the project;
(6)
the
compatibility of the proposed project with
existing and planned transportation facilities;
(7)
the
entity's experience in developing highway
projects, if the proposer is a public entity
and if the proposal is for
the development of a highway project by that entity
; [
(8)
the entity's experience in developing railway
projects, if the proposer is a public entity and if the proposal is for the
development of a railway project by that entity;
(9)
[
(10)
the financial capability of the proposer
to make all projected pass-through payments, if the proposal is for the development
of a project by the department
.
§5.55.Proposals from Private Entities.
(a)
If the commission approves the further evaluation of a
proposal of a private entity under §5.54 of this subchapter, the department
will publish notice of that decision and provide an opportunity for the submission
of competing proposals.
(b)
The department will publish a notice in the
Texas Register
and in one or more newspapers of general circulation.
The notice will state that the department has received a proposal under this
subchapter, that it intends to evaluate the proposal, that it may negotiate
a pass-through [
(c)
The notice will summarize the proposed project and identify
its proposed location. The notice will also specify the general criteria that
will be used to evaluate all proposals and the relative weight given to the
criteria. Specific evaluation criteria will be set forth in the request for
proposals. The criteria will, at a minimum, include
:
(1)
the factors listed in §5.54 of this subchapter,
to the extent applicable;
(2)
the proposer's qualifications
,
[
(3)
an analysis of the proposer's project implementation
schedule.
(d)
A proposal submitted in response to a notice must contain
the information required by §5.53 of this subchapter.
(e)
The original proposer may submit a revised proposal in
response to a notice.
(f)
Upon expiration of the 45-day period, or such additional
time as authorized by the commission, the department will evaluate the proposal
of the original proposer and any properly submitted competing proposals, utilizing
the evaluation criteria set forth in the request for proposals.
(g)
The department will rank all proposals after the evaluation
described in subsection (f) of this section, and may select the private entity
whose proposal provides the best value to the department. The department will
attempt to
negotiate a pass-through [
(h)
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 most highly ranked proposal and attempt to negotiate an agreement
with that party.
§5.56.Final Approval.
(a)
Authorization to negotiate final agreement.
The executive director will submit to the commission a summary of the
final
financial
terms of a
proposed
[
(1)
the project serves the public interest
and not merely a private interest;
(2)
the proposed pass-through agreement is
in the best interest of the state;
(3)
the project is compatible with existing
and planned transportation facilities; and
(4)
the project furthers state, regional, and
local transportation plans, programs, policies, and goals.
[
[
[
(b)
Contents of pass-through agreement. Before
any work is done for which reimbursement will be requested through a pass-through
toll or fare, the department and the public or private entity shall execute
a pass-through agreement containing, at a minimum, the following:
(1)
identification of the scope and nature
of the work to be performed;
(2)
all financial terms, as applicable, including
the levels of pass-through tolls or fares, maximum and minimum periodic payments,
and maximum and minimum total payments;
(3)
allocation of responsibility for all significant
work to be performed, including environmental documentation, right of way
acquisition, utility adjustments, engineering, construction, and maintenance;
(4)
provision for the collection and use of
toll or other revenues, if applicable;
(5)
all provisions required by state or federal
law;
(6)
a map showing the location of the project;
(7)
a proposed project schedule;
(8)
an estimated budget;
(9)
procedures and timelines for the submission
of materials and for approvals; and
(10)
for a local government, a copy of the
resolution or ordinance authorizing execution of the agreement.
§5.57. Calculation [
(a)
Pass-through fares.
(1)
Amount to be reimbursed.
(A)
General. The commission shall establish
the level of pass-through fares or shall establish parameters within which
the department may negotiate the level of pass-through fares. In establishing
the level of pass-through fares or parameters within which the department
may negotiate the level of pass-through fares, the commission shall consider
whether:
(i)
the project's estimated benefits to mobility
warrant a pass-through fare at a level that is more or less than the department's
estimate of project costs;
(ii)
the project will result in a significant
economic gain or loss to the entity responsible for its development;
(iii)
the public or private entity proposes
to share in the cost of the project; and
(iv)
the state or the public or private entity
will benefit, and to what extent, if the project is built sooner than would
be the case in the absence of a pass-through agreement.
(B)
Limits on pass-through fare levels.
(i)
The commission will not approve payment
by the department of a level of pass-through fares that exceeds the department's
estimate, except as permitted by this subparagraph. The commission may approve
the department's payment of a level of pass-through fares that exceeds the
department's current estimate, but only by the difference between the department's
current estimate and the department's estimate for the time when the project
would likely have been completed in the absence of a pass-through agreement.
(ii)
In determining the level of pass-through
fares, the commission will not consider any financing cost incurred by the
public or private entity.
(2)
Payment schedule and method.
(A)
Payment schedule. The schedule of pass-through
fare payments will be calculated based on the department's traffic projections
for the railway and a number and frequency of payments to be negotiated between
the department and the public or private entity. The payment schedule may
include a maximum and a minimum periodic amount to be paid annually or in
total.
(B)
Variable payments. The pass-through fare
may vary on any basis that reasonably reflects the value of improvements,
the nature of the railway traffic, or benefits to the highway system, including:
(i)
number, type, and class of passengers;
(ii)
type of freight;
(iii)
tonnage of freight;
(iv)
number or type of cars;
(v)
mileage traveled; or
(vi)
characteristics of track.
(3)
Allocation of risk.
(A)
Cost overruns and underruns. Unless otherwise
authorized by the commission and incorporated in a pass-through agreement
by the department, the department's liability under a pass-through agreement
shall be neither increased nor decreased by cost overruns or underruns. Pass-through
fare payments by the department shall not be increased if there is a cost
overrun or decreased if there is a cost underrun unless an adjustment is specifically
authorized by the commission and incorporated in a pass-through agreement
by the department.
(B)
Traffic volume. If traffic volume exceeds
or falls below expectations, the pass-through fare will not be adjusted. Payments
shall not exceed the maximum annual amount specified in the pass-through agreement
and shall not be below the minimum annual amount specified in the pass-through
agreement. The pass-through agreement shall provide that if required, payments
shall continue until the total of all payments equals the total pass-through
fare amount specified by the commission in approving the pass-through fare.
(b)
Pass-through tolls.
(1)
Level of pass-through tolls.
(A)
General. The commission shall establish
the level of pass-through tolls or shall establish parameters within which
the department may negotiate the level of pass-through tolls. In establishing
the level of pass-through tolls or parameters within which the department
may negotiate the level of pass-through tolls, the commission shall consider
whether:
(i)
the project's estimated benefits to mobility
warrant a pass-through toll at a level that is more or less than the department's
estimate of project costs;
(ii)
the project will result in a significant
economic gain or loss to the entity responsible for its development;
(iii)
the public or private entity proposes
to share in the cost of the project; and
(iv)
the state or the public or private entity
will benefit, and to what extent, if the project is built sooner than would
be the case in the absence of a pass-through agreement.
(B)
Limits on pass-through toll levels.
(i)
The commission will not approve payment
by the department of a level of pass-through tolls that exceeds the department's
estimate, except as permitted by this subparagraph. The commission may approve
the department's payment of a level of pass-through tolls that exceeds the
department's current estimate, but only by the difference between the department's
current estimate and the department's estimate for the time when the project
would likely have been completed in the absence of a pass-through agreement.
(ii)
In determining the level of pass-through
tolls, the commission will not consider any financing cost incurred by the
public or private entity.
[
[
[
[
[
[
[
[
[
(2)
[
(A)
[
(B)
[
(i)
the number of vehicles using the highway;
(ii)
the number of vehicle-miles traveled on
the highway;
(iii)
the condition of the highway; and
(iv)
whether the highway is tolled.
(3)
[
(A)
Cost overruns and underruns. Unless otherwise
authorized by the commission and incorporated in a pass-through agreement
by the department, the department's liability under a pass-through agreement
shall be neither increased nor decreased by cost overruns or underruns.
(i)
Projects developed by the public or private
entity. If the project is being developed by the public or private entity,
the pass-through toll payments by the department shall not be increased if
there is a cost overrun or decreased if there is a cost underrun unless an
adjustment is specifically authorized by the commission and incorporated in
a pass-through agreement by the department.
(ii)
Projects developed by the department.
If the project is being developed by the department, the pass-through agreement
shall provide that the pass-through toll or the maximum amount payable, or
both, shall be adjusted to reflect the department's actual costs unless the
commission specifically directs that the department shall bear the risk of
cost overruns or underruns.
(B)
Traffic volume. If traffic volume exceeds
or falls below expectations, the pass-through toll will not be adjusted. Payments
shall not exceed the maximum annual amount specified in the pass-through agreement
and shall not be below the minimum annual amount specified in the pass-through
agreement. The pass-through agreement shall provide that if required, payments
shall continue until the total of all payments equals the total pass-through
toll amount specified by the commission in approving the pass-through toll.
[
[
[
[
[
[
§5.58.Project Development by Public or Private Entity .
(a)
Social and environmental impact.
(1)
General. A
public or private entity
[
(2)
Department
[
(b)
Right of way and utilities.
(1)
Responsibility. This subsection applies
when the public or private entity is responsible for the acquisition of right
of way or the adjustment of utilities.
(2)
Right of way procedures.
(A)
Manual requirements. The acquisition of
right of way performed by or on behalf of the public or private entity shall
comply with the latest version of each of the department's manuals.
(B)
Alternative procedures. A public or private
entity may request written approval to use a different accepted procedure
for a particular item or phase of work. The use of an alternative procedure
is subject to the approval of the Federal Highway Administration. The executive
director may approve the use of an alternative procedure if the alternative
procedure is determined to be sufficient to discharge the department's state
and federal responsibilities in acquiring real property.
(3)
Utility adjustments. The adjustment, removal,
or relocation of utility facilities performed by or on behalf of the public
or private entity shall comply with applicable federal and state laws and
regulations.
(c)
[
(1)
Responsibility.
This subsection applies when the public
or private entity is
[
(2)
Design criteria.
(A)
State criteria. All designs developed by or on behalf of
the
public or private entity
[
(i)
Highway projects. Each highway project
shall, at a minimum, comply with the:
(I)
[
(II)
Pavement Design Manual
;
[
(III)
Hydraulic Design Manual
;
[
(IV)
[
(V)
Bridge Design Manual
;
[
(VI)
[
(ii)
Railway projects. Each railway project
shall comply, at a minimum, with the current version of the American Railway
Engineering and Maintenance of Right of Way Association standards.
(B)
Alternative criteria. A
public or private entity
[
(C)
Exceptions to design criteria. A
public or private
entity
[
(3)
Access
to a highway project
.
(A)
Access management. Access to
a highway
[
(B)
Interstate access. For proposed
highway
projects
that will change the access control line to an interstate highway, the
public or private entity
[
(4)
Preliminary design submission and approval. When design
is approximately 30% complete [
(A)
for a highway project,
a completed Design Summary
Report form as contained in the department's Project Development Process Manual;
(B)
a design schematic depicting plan, profile, and superelevation
information for each roadway
or a design schematic depicting plan, profile,
and superelevation based on top of railway for each railway line
;
(C)
typical sections showing existing and proposed horizontal
dimensions, cross slopes, location of profile grade line, pavement layer thickness
and composition, earthen slopes, and right of way lines
for each roadway
or subballast and ballast layer thickness and composition for each railway
line
;
(D)
bridge, retaining wall, and sound wall layouts;
(E)
hydraulic studies and drainage area maps showing the drainage
of waterways entering the project and local project drainage;
(F)
an explanation of the anticipated handling of existing
traffic during construction;
(G)
when structures meeting the definition of a bridge as defined
by the National Bridge Inspection Standards are proposed, an indication of
structural capacity in terms of design loading;
(H)
an explanation of how the U.S. Army Corps of Engineers
permit requirements, including associated certification requirements of the
Texas Commission on Environmental Quality, will be satisfied if the project
involves discharges into waters of the United States; and
(I)
for a highway project,
the location and text
of proposed mainlane guide signs shown on a schematic that includes lane lines
or arrows indicating the number of lanes.
(5)
Highway construction
[
(A)
All plans, specifications, and estimates developed by or
on behalf of the
public or private entity for a highway project
[
(B)
The executive director may approve the use of an alternative
specification if the proposed alternative specification is determined to be
sufficient to ensure the quality and durability of the finished product for
the intended use and the safety of the traveling public.
(6)
Railway construction specifications.
(A)
All plans, specifications, and estimates
developed by or for the public or private entity for a railway project shall
conform to all construction and material specifications established in the
American Railway Engineering and Maintenance of Right of Way Association standards.
(B)
The executive director may approve the
use of an alternative specification if the proposed alternative specification
is determined to be sufficient to ensure the quality and durability of the
finished product for the intended use and the safety of the public and the
railway system.
(7)
[
(A)
seven copies of the final set of plans, specifications,
and engineer's estimate (PS&E) that have been signed and sealed by the
responsible engineer;
(B)
revisions to the preliminary design submission previously
approved by the department in a format that is summarized or highlighted for
the department;
(C)
a proposal for awarding the construction contract in compliance
with applicable state and federal requirements;
(D)
contract administration procedures for the construction
contract with criteria that comply with the applicable national or state administration
criteria and manuals; and
(E)
the location and description of all EPIC addressed in construction.
(8)
[
(A)
Unless the department agrees in writing to assume responsibility
for some or all of the following items, the
public or private entity
[
(i)
overseeing all construction operations, including the oversight
and follow through with all EPIC;
(ii)
assessing contract revisions for potential environmental
impacts; and
(iii)
obtaining any necessary EPIC required for contract revisions.
(B)
The department may inspect the construction of the project
at times and in a manner it deems necessary to ensure compliance with this
section.
(9)
[
(10)
[
(11)
[
(12)
[
(d)
[
(e)
[
[
[
[
[
[
§5.59.Operation.
(a)
Agreement. A pass-through [
(b)
Responsibility. To the extent provided in the agreement,
a
public or private entity
[
(c)
Maintenance
of highways
.
[
(d)
Maintenance of railways. In performing
work under this section on a railway, the public or private entity shall meet
all standards for safety and maintenance established by the Federal Railroad
Administration and the National Transportation Safety Board, including all
standards published in 49 CFR Subtitle B, Chapters II and VIII.
(e)
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on January 27, 2006.
TRD-200600422
Richard D. Monroe
General Counsel
Texas Department of Transportation
Earliest possible date of adoption: March 12, 2006
For further information, please call: (512) 463-8683
Subchapter B. UTILITY ADJUSTMENT, RELOCATION, OR REMOVAL
Transportation Code, §222.104(b)
].
complete
] the work proposed
by the
public or private entity, whether the work is proposed to be performed
by the department or whether it is proposed to be performed by the public
or private entity
[
developer
]. The estimate is developed
or updated by the department after receipt of a
public or private entity's
[
developer's
] request and prior to the time the department
executes an agreement with the
public or private entity
[
developer
].
(4)
Developer--The public or private entity
that enters into a pass-through toll agreement with the department under this
subchapter for the construction, maintenance, or operation of a state highway.
]
(5)
] Environmental Permits, Issues,
and Commitments (EPIC)--Any permit, issue, coordination, commitment, or mitigation
obtained to satisfy social, economic, or environmental impacts of a project,
including[
, but not limited to,
] sole source aquifer coordination,
wetland permits, stormwater permits, traffic noise abatement, threatened or
endangered species coordination, archeological permits, and any mitigation
or other commitment associated with any of those issues.
(6)
] Executive director--The executive
director of the department or the executive director's designee not below
district engineer, division director, or office director.
(8)
] Pass-through toll--A
dollar amount that is tied to a measure of actual usage of a highway and is
used under this subchapter as a means of calculating payments made by one
entity to another to provide reimbursement for some or all of the costs of
designing, developing, financing, constructing, maintaining, or operating
a highway on the state highway system
[
per vehicle fee or a per
vehicle-mile fee that is determined by the number of vehicles using a highway
].
governmental
]
entity [
authorized to finance, construct, maintain, or operate a state
highway or a private entity
] may submit in writing to the department
a proposal for a project[
,
] or a series of projects[
,
]
to be developed under a pass-through [
toll
] agreement. The proposal
must include:
a description
of the
] services to be provided [
by the developer
];
(6)
] complete information concerning
the experience, expertise, technical competence, and qualifications of the
proposer and of each member of the proposer's management team and of other
key employees or consultants, including the name, address, and professional
designation of each member of the proposer's management team and of other
key employees or consultants, and the capability of the proposer to develop
the proposed projects, if the proposer is a private entity
and if the
proposal is for the development of a project by that entity
;
(7)
] if available, a proposed pass-through
[
toll
] payment schedule;
(8)
]
for a highway project,
a statement indicating whether the proposer intends for the project
to be tolled and, if the proposer intends for a tolled project to be first
opened to traffic as a non-tolled highway, the approximate date on which the
highway will begin to be tolled; and
(9)
] a statement indicating whether
the proposer intends to enter into a comprehensive development agreement,
if the proposer is a private entity
and if the proposal is for the development
of a project by that entity
.
Notwithstanding
] any other provision of this subchapter,
Chapter 27, Subchapter A, of this title (relating to
Comprehensive Development
Agreements
[
Policy, Rules, and Procedures for Private Involvement
in Department Turnpike Projects
]), applies to the solicitation, advertisement,
negotiation, and execution of a comprehensive development agreement.
For a railway project that is developed by the proposer, notwithstanding any
other provision of this subchapter, Chapter 7, Subchapter B, of this title
(relating to Contracts) applies to the solicitation, advertisement negotiation,
and execution of a comprehensive development agreement.
to ] Negotiate.
an
] agreement
under this subchapter or, if the proposer is a private entity, authorize the
department to solicit competitive proposals under §5.55 of this subchapter,
after considering [
the
]:
and
]
(8)
]
the
qualifications
of the proposer to accomplish the proposed work, if the proposer is a private
entity
and if the proposal is for the development of a project by that
entity; and
toll
] agreement with the proposer based on the
proposal, and that it will accept for simultaneous consideration any competing
proposals that the department receives in accordance with this subchapter
within 45 days of the initial publication of the notice in the
Texas Register
, or such additional time as authorized by the commission.
In determining whether to authorize additional time for submission of competing
proposals, the commission will consider the complexity of the proposal.
and
] technical competence, and
financial capability; and
toll
] agreement with
that proposer.
successfully
negotiated
] pass-through [
toll
] agreement.
The final
financial terms may consist of specific payment terms and schedules or may
consist of a range of acceptable parameters.
The commission may authorize
the executive director to
negotiate and
execute
a final
[
the
] agreement
only
if it finds that
:
the
agreement is in the best interest of the state and the project:
]
(1)
is compatible with existing and planned
transportation facilities; and
]
(2)
furthers state, regional, and local transportation
plans, programs, policies, and goals.
]
Payment ] of Pass-Through Fares and Tolls.
(a)
Amount to be reimbursed.
]
(1)
General. Except as provided in paragraph
(2) of this subsection, the department will reimburse the developer, through
the periodic payment of pass-through tolls, an amount equal to the department
estimate.
]
(2)
Exception.
]
(A)
The commission may direct the department
to provide for reimbursement in an amount less than the department estimate
if:
]
(i)
it determines that the project's estimated
benefits to mobility do not warrant full reimbursement;
]
(ii)
it determines that the construction of
the project will result in a significant economic gain to the developer; or
]
(iii)
the developer proposes to share in the
cost of the project.
]
(B)
The commission may direct the department
to provide for reimbursement in an amount more than the department estimate
if the commission determines that there will be a financial benefit to the
state, through the avoidance of inflation, as a result of building the project
sooner. The additional amount authorized by the commission may not be more
than the amount of the financial benefit determined by the commission.
]
(C)
The commission may establish the precise
amount to be reimbursed or may establish parameters within which the executive
director may negotiate.
]
(b)
] Payment schedule and method.
(1)
] Payment schedule. The schedule
of pass-through toll payments will be calculated based on the department's
traffic projections for the highway and a
number and frequency of payments
[
contract period
] to be negotiated between the department
and the
public or private entity
[
developer
]. The payment
schedule may include a maximum and a minimum annual amount to be paid
periodically or in total
. [
Payments will be made in accordance
with subsection (c)(2) of this section.
]
(2)
] Variable payments. The
pass-through toll
[
per vehicle fee
] may vary
on any
basis that reasonably reflects the value of improvements, the nature of the
highway, or benefits to other aspects of the highway system, including:
[
within different levels of traffic volume and by type of vehicle using the
facility.
]
(c)
] Allocation of risk.
(1)
Construction and operation costs.
]
(A)
Cost overruns. Unless otherwise specified
in the agreement, the developer is responsible for cost overruns caused by
any reason. The department may agree to share identified cost overruns if
it deems such action to be in the state's interest. The department may agree
to alter the payment schedule based upon cost overruns provided that the agreement
establishes a maximum amount or rate by which the department will do so.
]
(B)
Cost underruns. If actual costs are below
the department estimate, the developer is not required to repay the department
the difference between the actual costs and the amount designated in the agreement.
]
(2)
Traffic volume.
]
(A)
If traffic volume exceeds projections,
the department will not be responsible for annual payments above the highest
amount designated in the agreement. If traffic volume is less than projected,
the department will pay at least the lowest amount designated in the agreement.
]
(B)
If traffic volume exceeds projections,
the department may agree to reduce the time period in which the developer
is reimbursed the amount designated in the agreement. If traffic volume is
less than projected, the term of the agreement will be extended until the
developer is reimbursed the amount designated in the agreement.
]
developer
] that is responsible for the construction of a project shall conduct
the environmental review and public involvement for the project in the manner
prescribed by Chapter 2, Subchapter C of this title (relating to Environmental
Review and Public Involvement for Transportation Projects). The department
may choose to conduct the environmental review and public involvement.
Commission
] approval.
The
department
[
commission
] must approve each environmental
review under this section before construction of the project begins.
(b)
] Design and construction.
The developer is fully
] responsible
for the design, construction, and, operation, as applicable, of each project
it undertakes. This responsibility includes ensuring that all EPIC are addressed
in project design and carried out during project construction and operation.
developer
] shall comply
with the latest version of the department's manuals
.
[
, including,
but not limited to,
]
the
] Roadway Design Manual
;
[
,
]
,
]
,
]
the
] Texas Manual on Uniform Traffic
Control Devices
;
[
, and
]
,
]
and
the
] Texas Accessibility Standards.
developer
] may request approval to use different accepted criteria for
a particular item of work. Alternative criteria may include [
, but are
not limited to,
] the latest version of the AASHTO Policy on Geometric
Design of Highways and Streets, the AASHTO Pavement Design Guide, and the
AASHTO Bridge Design Specifications. The use of alternative criteria is subject
to the approval of the Federal Highway Administration
or the Federal
Railroad Administration
for those projects involving federal funds.
The executive director may approve the use of alternative criteria if the
alternative criteria are determined to be sufficient to protect the safety
of the traveling public and protect the integrity of the transportation system.
developer
] may request approval to deviate from the
state or alternative criteria for a particular design element on a
case-by-case
[
case by case
] basis. The request for approval shall state
the criteria for which an exception is being requested and must include a
comprehensive description of the circumstances and engineering analysis supporting
the request. The executive director may approve an exception after determining
that the particular criteria could not reasonably be met due to physical,
environmental, or other relevant factors and that the proposed design is a
prudent engineering solution.
the facility
] shall be in compliance with the department's access management
policy.
developer
] shall submit to the
department all data necessary for the department to request Federal Highway
Administration approval.
(
] or as otherwise provided in
a pass-through
[
an
] agreement [
)
], the
public
or private entity
[
developer
] shall send the following preliminary
design information to the department for review and approval in accordance
with the procedures and timeline established in the project development agreement
described in subsection (d) of this section:
Construction
]
specifications.
developer
] shall conform to the latest version of the department's Standard
Specifications for Construction and Maintenance of Highways, Streets, and
Bridges, and shall conform to department-required special specifications and
special provisions.
(6)
] Submission and approval of
final design plans and contract administration procedures. When final plans
are complete, the
public or private entity
[
developer
]
shall send the following information to the executive director for review
and approval in accordance with the procedures and timelines established in
the project development agreement described in subsection (e) of this section:
(7)
] Construction inspection and
oversight.
developer
] is responsible for:
(8)
] Contract revisions. All revisions
to the construction contract shall comply with the latest version of the applicable
national or state administration criteria and manuals, and must be submitted
to the department for its records. Any revision that affects prior environmental
approvals or significantly revises project scope or the geometric design must
be submitted to the executive director for approval prior to beginning the
revised construction work. Procedures governing the executive director's approval,
including time limits for department review, shall be included in the project
agreement described in subsection (e) of this section.
(9)
] As-built plans. Within six
months after final completion of the construction project, the
public
or private entity
[
developer
] shall file with the department
a set of the as-built plans incorporating any contract revisions. These plans
shall be signed, sealed, and dated by a professional engineer licensed in
Texas certifying that the project was constructed in accordance with the plans
and specifications.
(10)
] Document and information
exchange. The
public or private entity
[
developer
] agrees
to deliver to the department all materials used in the development of the
project including [
, but not limited to,
] aerial photography, computer
files, surveying information, engineering reports, environmental documentation,
general notes, specifications, and contract provision requirements.
(11)
] State and federal law. The
public or private entity
[
developer
] shall comply with all
federal and state laws and regulations applicable to the project and the state
highway system, and shall provide or obtain all applicable permits, plans,
and other documentation required by a federal or state entity.
(c)
] Contracts. All contracts for
the development, construction, or operation of a project shall be awarded
in compliance with applicable law.
(d)
] Federal law. If any federal
funds are used in the development or construction of a project under this
subchapter, or if the department intends to fund pass-through toll payments
with federal funds, the development and construction of the project shall
be accomplished in compliance with all applicable federal requirements.
(e)
Project development agreement. The developer
and the department shall enter into an agreement governing the development
of a project under this subchapter. The agreement shall, at a minimum, include:
]
(1)
the responsibilities of each party concerning
the design and construction of the project;
]
(2)
procedures governing the submittal of
information required by this subchapter;
]
(3)
timelines governing approvals of the executive
director under this subchapter; and
]
(4)
other terms or conditions mutually agreed
upon by the parties.
]
toll
] agreement may
provide for a
public or private entity
[
developer
] to
operate a highway
or a railway
.
developer
] shall perform
or cause to be performed all work required to operate the highway
or
railway
. This work includes all maintenance and repair required to ensure
that the highway
or railway
functions as intended and meets the
performance standards established for maintenance under subsection (c) of
this section.
(1)
]
[
Department standards.
]In performing
work under this section
on a highway
, the
public or private
entity
[
developer
] shall meet or exceed the most current
"Texas Maintenance Assessment Program" minimum rating requirements for non-interstate
state highways as established by the commission in its implementation of Government
Accounting Standards
Board
[
Boards
] Statement No. 34.
If the highway will be tolled, the
public or private entity
[
developer
] shall meet or exceed the minimum rating requirements for
interstate highways.
(2)
] Alternative standards. A
public or private entity
[
developer
] may request approval
to use alternative maintenance standards. The executive director may approve
the use of alternative maintenance standards if the director determines that
the alternative standards are sufficient to protect the safety of the [
traveling
] public and
to
protect the integrity of the transportation
system.
Chapter 21.
RIGHT OF WAY