Part 1.
TEXAS DEPARTMENT OF TRANSPORTATION
Chapter 5.
FINANCE
Subchapter C. HARDSHIP FINANCING FOR UTILITY ADJUSTMENTS, RELOCATIONS, AND REMOVALS
The Texas Department of Transportation proposes the repeal of §§5.24
and 5.25, amendments to §5.22, and new §§5.24 and 5.25, concerning
hardship financing for utility adjustments, relocations, and removals.
EXPLANATION OF PROPOSED REPEALS, AMENDMENTS AND NEW SECTIONS
In 1997, the 75th Legislature amended Transportation Code, §§203.092
and 203.093, and added Transportation Code, §203.0921 to enable the department
to finance a utility relocation that is not eligible for state reimbursement
when a short term financial condition exists that prevents the utility from
being able to fund the relocation. By financing these utility adjustments,
the department will be able to complete its highway projects in a more timely
manner, and displaced utilities will be allowed to maintain continuous service
to the public during highway construction.
The department has generally decentralized the responsibility for constructing
highway projects. That responsibility is handled by each of the 25 department
districts throughout the state, each overseen by a district engineer. As part
of that responsibility, each district must ensure that all necessary utility
relocations are completed before construction may begin. This requires the
districts to work closely with the relevant utility, and to ascertain if conditions
exist that may prevent the utility from paying for the relocation in a timely
manner. Accordingly, the district engineer of each department district is
in the best position to perform an initial review of utility relocations and
to determine if a particular utility is in need of financing under this subchapter.
Transportation Code, §203.0921 requires that a finding be made that
a short term financial condition exists that would prevent a utility from
being able to pay the cost of relocation at the time of relocation or, if
paid at that time, would adversely affect the utility's ability to operate
or provide essential services to its customers. Under that section, the utility
must reimburse the department within five years of completion of the relocation
work. Under those requirements, the financial condition need not exist prior
to the time funding for relocation work is needed.
Section §5.22 is amended to delete words and terms no longer used
in the subchapter, including cash and near cash assets, CPA, and executive
director. This section is also amended to define new words and terms used
in the subchapter, namely district and district engineer. The definition of
short term financial condition is amended to be more consistent with the meaning
of the phrase in Transportation Code, §203.0921.
Existing §§5.24 and 5.25 are proposed for repeal and simultaneously
proposed as new §§5.24 and 5.25 in an amended form. The order of
the procedures in those two sections was reversed, as it is more appropriate
for the memorandum of understanding required by Transportation Code, §203.0921
to be obtained after a preliminary review of a request for financial assistance.
The preliminary review will establish whether a request meets initial eligibility
requirements. Only those requests meeting those requirements must be followed
with the memorandum of understanding required before commission approval of
a request for financing.
New §5.24, Request, sets forth revised requirements for a request
to the commission for financing. This section specifies that the district
engineer of the district in which the utility relocation work is located shall
submit a request for financing. This will ensure that there is another level
of preliminary review of the need for financing, and also ensure that this
review is completed by the person or persons most familiar with prior steps
taken by the utility to pay for or finance needed relocation work.
The list of items that must be included in or attached to a request for
financing has been revised to delete a number of those items. The revised
list requires a utility to provide a statement of hardship and a financing
plan for paying a loan. These two, and the remaining requirements, comply
with the eligibility conditions set out in Transportation Code, §203.0921,
and enable the department to process requests for financing more efficiently,
thereby ensuring the timely completion of highway projects. The amendments
to the definition of short term financial condition makes the requirement
for financial statements covering the prior three years unnecessary. The information
provided by the other deleted items is either already provided by the remaining
items or not necessary to make a determination of eligibility.
New §5.25, Memorandum of Understanding, includes the requirements
of the former §5.24 with no change, other than a change to the title
of that section and to specify that the memorandum of understanding must be
entered into prior to consideration by the commission of a request for financing,
rather than as a prerequisite to an application for financing.
FISCAL NOTE
James M. Bass, Director, Finance Division, has determined that for the
first five-year period the repeals, amendments, and new sections are in effect,
there will be fiscal implications for state and local governments as a result
of enforcing or administering the repeals, amendments, and new sections. This
fiscal impact will result from amendments affecting the number of utilities
that will be eligible for financing. The exact fiscal impact cannot be quantified
with any specificity, as it will depend on the individual circumstances of
each utility and the number of utilities that request financing. There are
no anticipated economic costs for persons required to comply with the sections
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 repeals, amendments, and new sections.
PUBLIC BENEFIT
Mr. Bass has also determined that for each year of the first five years
the repeals, amendments, and new sections are in effect, the public benefit
anticipated as a result of enforcing or administering the proposed sections
will be to avoid delaying highway construction activities as a result of more
efficient utility relocation work. There will be no effect on small businesses.
SUBMITTAL OF COMMENTS
Written comments on the proposed repeals, amendments, and new sections
may be submitted to James M. Bass, Director, Finance Division, Texas Department
of Transportation, 125 East 11th Street, Austin, Texas 78701-2483. The deadline
for receipt of comments is 5:00 p.m. on July 10, 2000.
43 TAC §§5.22, 5.24, 5.25
STATUTORY AUTHORITY
The repeals, amendments and new sections are proposed under Transportation
Code, §201.101, which provides the Texas Transportation Commission with
the authority to establish rules for the conduct of the work of the Texas
Department of Transportation, and more specifically, Transportation Code, §203.095,
which provides the Texas Transportation Commission with the authority to establish
rules to implement Transportation Code, Chapter 203, Subchapter E.
No statutes, articles, or codes are affected by the proposed amended and
new sections.
§5.22.Definitions.
The following words and terms, when used in this subchapter, shall
have the following meanings unless the context clearly indicates otherwise.
[
(1)
[
(2)
[
[
(3)
[
(4)
District - One of the 25 districts
of the department.
(5)
District Engineer - The chief administrative
officer in charge of a district of the department.
(6)
Elective betterment - Any expansion, enlargement,
or design enhancement which is not required to comply with current statutes
or codes and which is not necessitated by highway construction requirements
or technological obsolescence.
[
(7)
[
(8)
[
(9)
[
(10)
[
(11)
[
(12)
[
§5.24.Request.
(a)
The district engineer of the district in which the utility
project is located desiring to obtain financing for a utility shall submit
a request for financing to the Finance Division in a form prescribed by the
department.
(b)
The request must contain a statement that the utility agrees
to enter into a reimbursement agreement pursuant to §5.27 of this subchapter
and to secure the payment of the reimbursement including interest.
(c)
The request must include or be accompanied by:
(1)
a statement of hardship consisting of either:
(A)
an explanation of the short term financial condition that
would prevent a utility from being able to pay the cost of the relocation
in full or in part at the time of the relocation; or
(B)
an explanation of the adverse affect on the utility's ability
to operate or provide essential services to its customers if the cost of the
relocation is paid at the time of the relocation;
(2)
the total estimated cost of the proposed utility
adjustment;
(3)
the amount being requested;
(4)
the source of repayment and citation of the legal
authority to pledge selected revenues;
(5)
the financing plan for repaying the total amount of
the loan, plus interest; and
(6)
any special request for repayment terms, structure
of payments, or considerations that reflect the particular needs of the utility.
(d)
The district engineer or the Finance Division may request
further information, data, or explanations as may reasonably be needed to
complete and evaluate the application.
§5.25.Memorandum of Understanding.
Prior to consideration by the commission of an application for financing
under this subchapter, a utility must enter into a memorandum of understanding
in a form prescribed by the department establishing that:
(1)
appropriate safeguards are in place to ensure that relocation
work activities are conducted safely in full compliance with applicable law
and utility construction standards;
(2)
relocation work can be coordinated between the department
and the utility in a manner that will ensure that any disruption of utility
service is minimized;
(3)
all contractors and/or subcontractors selected for
relocation work activities will be qualified to perform the relocation activities;
and
(4)
there exists a factual basis for the commission findings
required under §5.26 of this subchapter.
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 May 26, 2000.
TRD-200003761
Richard Monroe
General Counsel
Texas Department of Transportation
Earliest possible date of adoption: July 9, 2000
For further information, please call: (512) 463-8630
43 TAC §5.24, §5.25
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Department of Transportation or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
STATUTORY AUTHORITY
The repealed sections are proposed under Transportation Code, §201.101,
which provides the Texas Transportation Commission with the authority to establish
rules for the conduct of the work of the Texas Department of Transportation,
and more specifically, Transportation Code, §203.095, which provides
the Texas Transportation Commission with the authority to establish rules
to implement Transportation Code, Chapter 203, Subchapter E.
No statutes, articles, or codes are affected by the proposed repealed sections.
§5.24.Pre-Application Procedures.
§5.25.Application.
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 May 26, 2000.
TRD-200003760
Richard Monroe
General Counsel
Texas Department of Transportation
Earliest possible date of adoption: July 9, 2000
For further information, please call: (512) 463-8630
Subchapter D. TEXAS HIGHWAY TRUNK SYSTEM
43 TAC §§15.40 - 15.42
The Texas Department of Transportation proposes amendments
to §§15.40-15.42, concerning the Texas Highway Trunk System.
EXPLANATION OF PROPOSED AMENDMENTS
Current §§15.40-15.42 provide criteria by which routes are chosen
for the Texas Highway Trunk System. This system is a planned rural network
of four-lane or better divided roadways that will serve as a principal connector
of all Texas cities with over 20,000 population as well as major ports and
points of entry, not to exceed a total system mileage of 11,500 miles. Subsequent
to adoption of §§15.40-15.42, the Texas Transportation Commission
selected the system of routes based on the criteria listed in §15.42.
The commission also ordered that periodic updates be performed to ensure
the timeliness of the system. These updates would review the existing selection
criteria and subsequently the existing system to determine if both are meeting
the changing needs of rural transportation within the state. With the ratification
of the North American Free Trade Agreement (NAFTA) and its subsequent effects
on the state's highway system, it was determined that a review of the selection
criteria was now needed.
The department recently held public meetings throughout the state to obtain
input on possible criteria additions the public felt important. Meetings were
held in Childress, San Angelo, Uvalde, Corsicana, and Huntsville. Approximately
280 people attended these meetings and suggested proposed changes.
After reviewing and analyzing the current criteria and the public comments,
the department concluded that two additional criteria be added. Amendments
to §15.42 will give consideration to closing gaps in the system and providing
system connectivity. These additional selection criteria will allow the commission
to amend the system so that it will provide more statewide coverage and more
directional opportunities to meet the new demands placed on it by the growing
economy and NAFTA.
Non-substantive revisions have been made to §§15.40 and 15.41
to acknowledge that these rules now comprise a subchapter, to correct a typographical
error, and to update titles to the commission, department, and the department's
executive director.
FISCAL NOTE
James Bass, Director, Finance Division, has determined that for the first
five-year period the amendments 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 sections as proposed.
Alvin R. Luedecke, Jr., Director, Transportation Planning and Programming
Division, 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
Alvin R. Luedecke, Jr., Director, Transportation Planning and Programming
Division, has also determined that for each year of the first five years the
sections are in effect the public benefit anticipated as a result of enforcing
or administering the amendments will be the improved ability to address the
additional needs of rural transportation resulting from the increased traffic
caused by the North American Free Trade Agreement and the expanding Texas
economy. There will be no effect on small businesses.
PUBLIC HEARING
Pursuant to the Administrative Procedure Act, Government Code, Chapter
2001, the Texas Department of Transportation will conduct a public hearing
to receive comments concerning the proposed amendments. The public hearing
will be held at 9:00 a.m. on June 23, 2000, in the first floor hearing room
of the Dewitt C. Greer State Highway Building, 125 East 11th Street, Austin,
Texas and will be conducted in accordance with the procedures specified in
43 TAC §1.5. Those desiring to make comments or presentations may register
starting at 8:30 a.m. Any interested persons may appear and offer comments,
either orally or in writing; however, questioning of those making presentations
will be reserved exclusively to the presiding officer as may be necessary
to ensure a complete record. While any person with pertinent comments will
be granted an opportunity to present them during the course of the hearing,
the presiding officer reserves the right to restrict testimony in terms of
time and repetitive content. Organizations, associations, or groups are encouraged
to present their commonly held views and identical or similar comments through
a representative member when possible. Comments on the proposed text should
include appropriate citations to sections, subsections, paragraphs, etc. for
proper reference. Any suggestions or requests for alternative language or
other revisions to the proposed text should be submitted in written form.
Presentations must remain pertinent to the issues being discussed. A person
may not assign a portion of his or her time to another speaker. A person who
disrupts a public hearing must leave the hearing room if ordered to do so
by the presiding officer. Persons with disabilities who plan to attend this
meeting and who may need auxiliary aids or services such as interpreters for
persons who are deaf or hearing impaired, readers, large print or braille,
are requested to contact Eloise Lundgren, Director, Public Information Office,
125 East 11th Street, Austin, Texas 78701-2483, 512/463-8588 at least two
working days prior to the hearing so that appropriate services can be provided.
SUBMITTAL OF COMMENTS
Written comments on the proposed amendments may be submitted to Alvin R.
Luedecke, Jr. Director, Transportation Planning and Programming Division,
125 East 11th Street, Austin, Texas 78701-2483. The deadline for receipt of
comments is 5:00 p.m. on July 10, 2000.
STATUTORY AUTHORITY
The amendments are proposed under Transportation Code, §201.101, which
provides the Texas Transportation Commission with the authority to establish
rules for the conduct of the work of the Texas Department of Transportation,
and more specifically, Transportation Code, §201.103, which requires
the commission to plan and make policies for the location, construction, and
maintenance of a comprehensive system of state highways.
No statutes, articles, or codes are affected by the proposed amendments.
§15.40.Purpose.
The sections under this
subchapter
[
§15.41.Definitions.
The following words and terms, when used in this
subchapter
[
(1)
Commission - The
Texas
[
(2)
Department - The
Texas
[
(3)
Executive director - The executive
director of the department.
[
(4)
Mexican ports of entry - Connections between Mexico
and the State of Texas at international bridge crossings of 5,000 vehicles
or more average daily traffic.
(5)
Routes - All or a portion of a roadway between two
specific geographical locations.
(6)
Texas Highway
Trunk
[
§15.42.Selection Criteria.
Routes to be included in and developed as a part of the Texas Highway
Trunk System shall be chosen by the commission as recommended by the
executive director
[
(1)
maximizing the use of existing four-lane divided roadways;
(2)
minimizing circuitous or indirect routing;
(3)
connecting with principal roadways from adjacent states;
(4)
connecting with principal deep water ports with channel
depths of 40 feet or more;
(5)
connecting with principal Mexican ports of entry;
(6)
serving significant military or other national security
installations;
(7)
serving tourism and/or recreational areas;
(8)
comprising major truck routes; [
(9)
which are within 25 miles or less of cities of 10,000
population or greater
;
(10)
closing gaps in the existing selected
system; and
(11)
providing system connectivity.
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 May 26, 2000.
TRD-200003762
Richard Monroe
General Counsel
Texas Department of Transportation
Earliest possible date of adoption: July 9, 2000
For further information, please call: (512) 463-8630
43 TAC §15.52
The Texas Department of Transportation proposes amendments
to §15.52, concerning agreements for federal, state and local participation.
EXPLANATION OF PROPOSED AMENDMENTS
Transportation Code, §222.052 authorizes a local government to contribute
funds to be spent by the Texas Transportation Commission in the development
and construction of the public roads and the state highway system within the
local government. Pursuant to this section, the department requires a local
government to enter into a cost participation agreement with the department
related to a highway improvement project.
Local governments have limited financial resources with which to meet their
many financial obligations. Their cost participation in off system bridge
program projects is often prohibitive which results in delaying necessary
bridge improvements that are critical in nature. Local governments are also
reluctant to commit their scarce resources to these projects due to the potential
risk of cost escalation resulting in the local government owing the department
more than the amount originally estimated.
To ensure the safety of the travelling public and to accelerate these needed
bridge improvements, §15.52 is amended to change the required provisions
of cost participation agreements that the department and local governments
enter into when a local government is responsible for providing cost participation
for a highway improvement project included in the off state highway system
bridge program.
Due to the critical nature of these safety improvements and to help minimize
the risk of cost escalation to the local government, amendments to §15.52(3)
provide a new funding arrangement for off state highway system bridge projects.
The local participation is based upon the department's estimate of the eligible
work at the time of the agreement and would not be adjusted during construction
except as needed to include any project cost item or portion of a cost item
ineligible for state or federal participation. If it is found that the amount
received is in excess of the local government's required funding share, the
excess funds paid by the local government shall be returned. To maintain the
intent of the federal bridge program, the local government is also responsible
for any cost resulting from changes made at the request of the local government,
either during preliminary engineering or construction.
To allow the local government time to budget for its cost participation,
proposed amendments retain the provision for an initial payment for its portion
of the estimated cost of preliminary engineering for the project upon execution
of the agreement, and payment of the remainder due prior to the department's
scheduled date for contract letting.
To allow for an efficient transition consistent with state law, the proposed
amendments apply to projects for which the construction contract has not been
awarded. The department will not return any funds already received by the
department under the terms of existing agreements.
FISCAL NOTE
James M. Bass, Director, Finance Division, has determined that there will
be fiscal implications for state and local governments as a result of enforcing
or administering the amendments. The effect on state government for the first
five-year period the amendment will be in effect will be an estimated additional
cost of $700,000 for each of the next five years. It is anticipated that the
local governments will realize a comparable savings during this same period.
There are no anticipated costs for persons required to comply with the section
as proposed.
Mary Lou Ralls, P.E., Director, Bridge Division, 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
Ms. Ralls has also determined that for each year of the first five years
the section as proposed is in effect, the public benefits anticipated as a
result of enforcing or administering the amendments will be to maximize the
department's ability to improve off state highway system bridges, and to ensure
that projects funded by local governments are developed as expeditiously as
possible, thereby improving the efficiency of the state's transportation system,
and maximizing the safety of the traveling public. There will be no effect
on small businesses.
SUBMITTAL OF COMMENTS
Written comments on the proposed amendments may be submitted to Mary Lou
Ralls, P. E., Director, Bridge Division, 125 East 11th Street, Austin, Texas
78701-2483. The deadline for receipt of comments is 5:00 p.m. on July 10,
2000.
STATUTORY AUTHORITY
The amendments are proposed under Transportation Code, §201.101, which
provides the Texas Transportation Commission with the authority to establish
rules for the conduct of the work of the Texas Department of Transportation.
No statutes, articles, or codes are affected by the proposed amendments.
§15.52.Agreements.
When a local government or reservoir agency is responsible for providing
financial assistance for a highway improvement project, the department and
the local government or reservoir agency shall enter into an agreement before
any work is performed. The agreement will include, but not be limited to,
the following provisions of this section.
(1)
Right of entry. If the local government or reservoir agency
is the owner of the project site, it shall permit the department or its authorized
representative access to occupy the site to perform all activities required
to execute the work.
(2)
Right of way and/or utility relocation/adjustments.
The local government will provide all necessary right of way and utility relocation/adjustments,
whether publicly or privately owned, in accordance with §15.55 of this
subchapter
[
(3)
Funding arrangement. The agreement will specify the
type of funding share arrangement agreed upon by the department and the local
government. The funding share arrangement shall include any adjustments required
by §15.55 of this
subchapter
[
(A)
Standard. The local government is responsible for all,
or a specified percentage as shown in Appendix A of §15.55 of this title
(relating to Construction Cost Participation), of the direct costs incurred
by the department for preliminary engineering, construction engineering, construction,
and right of way as well as the direct cost for any work included which is
ineligible for federal or state participation. When specified, the reservoir
agency is responsible for all of the direct costs incurred by the department
for preliminary engineering, construction engineering, construction, and right
of way as well as the direct cost for any work included which is ineligible
for federal or state participation.
(B)
Alternate. A fixed price funding arrangement may be used
if requested by the local government and approved by the executive director.
(i)
Definition. Under this arrangement, a local government
is responsible for a firm fixed price which is a lump sum price not subject
to adjustment except:
(I)
in the event of changed site conditions;
(II)
if work requested by the local government is ineligible
for federal participation; or
(III)
as mutually agreed upon by the department and the local
government.
(ii)
Conditions. The department may enter into a firm fixed
price agreement only:
(I)
for projects that include state participation, as shown
in Appendix A of §15.55 of this
subchapter
[
(II)
if the fixed price is based on the estimated cost of the
work for which the funds are received.
(iii)
Approval. In approving a request for an alternate funding
arrangement, the executive director will consider:
(I)
requests by the local government to include work which
is ineligible for federal or state participation;
(II)
need for expeditious project completion;
(III)
type of work proposed and the ability to accurately estimate
its cost; and
(IV)
any other considerations relating to the benefit of the
state, the traveling public, and the operations of the department.
(C)
Off State Highway System Bridge Program.
For projects funded in the Off State Highway System Bridge Program, the local
government is responsible for the specified percentage, as shown in Appendix
A to §15.55 of this subchapter, of the estimated direct costs for preliminary
engineering, construction engineering, and construction, and the actual direct
costs for right of way and eligible utilities. The estimated direct costs
are based on the department's estimate of the eligible work at the time of
the agreement. The local government is responsible for the direct cost of
any project cost item or portion of a cost item that is not eligible for federal
participation under the Federal Highway Bridge Replacement and Rehabilitation
Program under 23 U.S.C. §144 and 23 C.F.R. §650 Subpart D. The local
government is also responsible for any cost resulting from changes made at
the request of the local government, either during preliminary engineering
or construction.
(4)
Interest. The department will not pay interest
on funds provided by the local government or the reservoir agency. Funds provided
by the local government or the reservoir agency will be deposited into, and
retained in, the state treasury.
(5)
Amendments. In the case of significantly changed site
conditions or other mutually agreed upon changes in the scope of work authorized
in the agreement, the department and the local government or reservoir agency
will amend the funding agreement, setting forth the reason for the change
and establishing the revised participation to be provided by the local government
or reservoir agency.
(6)
Payment provision. The agreement will establish the
conditions for payment by the local government or reservoir agency, including,
but not limited to, the method of payment and the time of payment.
(A)
Standard. Following execution of the agreement, the local
government or reservoir agency will pay, as a minimum, its funding share for
the estimated cost of preliminary engineering for the project. Prior to the
department's scheduled date for contract letting, the local government or
reservoir agency will remit to the department an amount equal to the remainder
of the local government's or reservoir agency's funding share for the project.
(i)
When the standard funding arrangement is used, after the
project is completed the final cost will be determined by the department,
based on its standard accounting procedures. If it is found that the amount
received is insufficient to pay the local government's or reservoir agency's
funding share, then the department shall notify the local government or reservoir
agency which shall transmit the required amount to the department. If it is
found that the amount received is in excess of the local government's or reservoir
agency's funding share, the excess funds paid by the local government or reservoir
agency shall be returned.
(ii)
When a fixed price funding arrangement is used, the lump
sum price is not subject to adjustment except as provided for in paragraph
(3)(B) of this section.
(iii)
For projects funded in the Off State
Highway System Bridge Program, the department will determine the final cost
after the project is completed, based on its standard accounting procedures.
The department will notify the local government of any amount due for payment
of costs related to any ineligible items and for changes made at the request
of the local government. The local government shall promptly transmit the
required amount to the department. The department will return excess funds
paid by the local government if the amount received is in excess of the local
government's funding share required by §15.55(c) of this subchapter.
(B)
Alternate. Incremental payments may be made if requested
by the local government and approved by the executive director. When the standard
funding arrangement is used, after the project is completed, the final cost
will be determined by the department based on its standard accounting procedures.
If it is found that the amount received is insufficient to pay the local government's
funding share, then the department shall notify the local government which
shall transmit the required amount to the department. If it is found that
the amount received is in excess of the local government's funding share,
the excess funds paid by the local government shall be returned. When a fixed
price funding arrangement is used, the lump sum price is not subject to adjustment
except as provided for in paragraph (3)(B) of this section.
For projects
funded in the Off State Highway System Bridge Program, the department will
determine the final cost after the project is completed, based on its standard
accounting procedures. The department will notify the local government of
any amount due for payment of costs related to any ineligible items and for
changes made at the request of the local government. The local government
shall promptly transmit the required amount to the department. The department
will return excess funds paid by the local government if it is found that
the amount received is in excess of the local government's funding share required
by §15.55(c) of this subchapter.
(i)
Conditions. The department may approve incremental payments
only if:
(I)
the incremental payments sought are based on the estimated
cost for the work for which the funds are received and payment is made in
accordance with the schedule established in the funding agreement; and
(II)
the local government does not have a delinquent obligation
to the department, as defined in §5.10 of this title (relating to Collection
of Debts).
(ii)
Approval. In approving a request for incremental payments,
the executive director will consider:
(I)
inability of the local government to pay its total funding
share prior to the department's scheduled date for contract letting, based
upon population level, bonded indebtedness, tax base, and tax rate;
(II)
past payment performance;
(III)
need for expeditious project completion;
(IV)
whether the project is located in a local government that
consists of all or a portion of an economically disadvantaged county; and
(V)
any other considerations relating to the benefit of the
state, the public, and the operations of the department.
(7)
Termination. If the local government
or reservoir agency withdraws from the project after the agreement is executed,
it shall be responsible for all direct and indirect project costs incurred
by the department for the items of work in which the local government or reservoir
agency is participating.
(8)
Responsibilities of the parties. The agreement shall
identify the responsibilities of each party, including, but not limited to,
preparing or providing construction plans, advertising for bids, awarding
a construction contract, and construction supervision.
(A)
Local performance of construction work.
(i)
Request. If requested by a county or municipality and approved
by the executive director or designee, an agreement with the commissioners
court of a county or the governing body of a municipality may provide for
minor improvement of the state highway system by county or municipal employees
under direct county or municipal control, where minor improvements are to
include:
(I)
projects on a metropolitan highway not maintained by the
department and not contained in the off-state highway system bridge program;
or
(II)
projects or activities appurtenant to a state highway
and including drainage facilities, surveying, traffic counts, driveway construction,
landscaping, signs, lighting, guardrails and other items incidental to the
roadway itself on facilities for which the department is responsible for maintenance.
(ii)
Approval. The executive director or designee may authorize
a county or municipality to perform minor improvement of the state highway
system, if the county or municipality commits in the agreement to comply with
all federal, state and department requirements and agrees to forfeit any claim
to federal and/or state reimbursement if they fail to comply. In approving
a request from a county or municipality for minor improvement of the state
highway system, the executive director or designee will consider:
(I)
previous experience of the county or municipality in performing
the type of work proposed;
(II)
need for expeditious project completion;
(III)
cost effectiveness of the proposal as compared to awarding
the project through the competitive bidding process; and
(IV)
any other considerations relating to the benefit of the
state, the traveling public, and the operations of the department.
(iii)
Exceptions. The commission may authorize a county or
municipality to perform other than minor improvement of the state highway
system, if those improvements are determined to be in the best interest of
the state, and the county or municipality commits in the agreement to comply
with all federal, state and department requirements and agrees to forfeit
any claim to federal and/or state reimbursement if they fail to comply. In
approving a request, the commission will consider the criteria prescribed
in clause (ii) of this subparagraph.
(B)
Local letting and management of construction projects.
(i)
Request. A local government may submit a written request
to the department to assume the responsibility for letting, construction,
and construction management of a specific project.
(ii)
Approval. The executive director may authorize a local
government to award and manage a construction contract if:
(I)
the improvement is for a project not on the state highway
system or is for a project on a metropolitan highway not maintained by the
department;
(II)
the project is not in the off-state highway system bridge
program;
(III)
the department lacks the expertise or resources necessary
to award a construction contract in an efficient and timely manner;
(IV)
the local government is found to be capable of awarding
and managing the construction contract in a timely manner consistent with
federal, state and department regulations; and
(V)
the local government commits in the agreement to comply
with all federal, state and department requirements and agrees to forfeit
any claim to federal and/or state reimbursement if they fail to comply.
(C)
Acknowledgment. The local government or reservoir agency
must acknowledge in the agreement that while not an agent, servant, nor employee
of the state, it is responsible for its own acts and deeds and for those of
its agents or employees during the performance of the work authorized in the
contract.
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 May 26, 2000.
TRD-200003763
Richard Monroe
General Counsel
Texas Department of Transportation
Earliest possible date of adoption: July 9, 2000
For further information, please call: (512) 463-8630
43 TAC §15.55
The Texas Department of Transportation proposes amendments
to §15.55, concerning construction cost participation.
EXPLANATION OF PROPOSED AMENDMENTS
Transportation Code, Section 222.053(b), authorizes the Texas Transportation
Commission to require, request, or accept from a political subdivision matching
or other local funds to make the most efficient use of its highway funding.
Pursuant to this authority, the commission has previously adopted §§15.50-15.56,
to specify the roles of federal, state, and local entities in the development
of highway improvement projects.
Current §15.55 requires a local government to fund 10% of an off-state
highway system bridge project. The amendments add a new subsection (d) to §15.55.
Subsection (d) authorizes the department to waive the local government's required
10% fund participation in an off state system bridge program project if the
local government agrees to perform an equivalent dollar-amount of structural
improvement work on another deficient bridge(s) or other mainlane cross-drainage
structure(s) within the local government's jurisdiction.
Subsection (d)(1) defines the words and terms used in the new subsection.
While a bridge on a participation-waived project typically must be a roadway-bearing
structure of at least 20-foot length, a "bridge" on an equivalent-match project(s),
as defined in this subsection, includes mainlane cross-drainage structures
regardless of length along the roadway. This expansion of definition is needed
to provide more assistance to the local governments, and additional flexibility
in addressing their roadway structural needs. The term "deficient bridge"
is defined as a bridge identified by the department as having a condition
or load capacity that is inadequate. The definition is necessary in order
to ensure that the equivalent-match program targets structurally inadequate
bridges with a resulting increase in bridge safety for the traveling public.
The definition of "participation-waived project" is limited to projects that
are on the department's Unified Transportation Program and that satisfy minimum
standards established by the department. These stipulations are required to
remain consistent with the basic purpose of the bridge program, i.e., the
remedy of deficient bridges.
Subsection (d)(2) authorizes the department's district engineer to approve
a waiver. In order to receive consideration for a waiver, the local governmental
body is required to commit by written resolution to spend an equivalent dollar-amount
of funds for structural improvement work on another bridge(s) within its jurisdiction.
An equivalent amount includes, but is not limited to, expenditures for direct
or indirect costs for structural improvement work on bridge(s) in the equivalent-match
project(s).
Subsection (d)(3) describes the eligibility requirements for a waiver.
First, to assure that the integrity of the state's fund accounting and condition
project letting systems is maintained, the construction contract for the participation-waived
project may not have been awarded. Second, to ensure that the work is within
the intent and the monetary limitations of the rules, work on the equivalent-match
project may not have begun prior to approval of the waiver. Third, the local
government must be in compliance with load posting and closure regulations
as defined in the National Bridge Inspection Standards under 23 C.F.R. §650.303.
This compliance is necessary to further support the basic purpose of the bridge
program, which is to remedy deficient bridges and enhance bridge safety through
bridge replacement and rehabilitation. Fourth, the bridge on the proposed
equivalent-match project(s) must be classified as deficient or on a school
bus route that is weight restricted for school buses. This requirement is
necessary to properly discharge the basic purpose of the bridge program and
to ensure that a maximum number of bridges are made safe for school bus loading.
Finally, the structural improvement work on the equivalent-match project must
increase the load capacity of the existing bridge or upgrade the bridge to
its original capacity, with a minimum upgrade to safely carry school bus loading
if located on a school bus route. This requirement is needed to ensure substantive
improvement in the load carrying capacity of the deficient bridge.
Subsection (d)(4) describes the procedures a local government must follow
to request a waiver. The local government is required to provide a written
request to the department district engineer that includes the location(s),
description of structural improvement work proposed, estimated cost for the
equivalent-match project(s), and a copy of the resolution of the local governmental
body. These requirements are needed to properly determine if the waiver complies
with all the requirements of this subsection. The resolution from the local
government must acknowledge assumption of all responsibilities for engineering
and construction and complying with all applicable state and federal environmental
regulation and permitting requirements for the bridges(s) on the equivalent-match
project(s). Acknowledgement of these responsibilities is necessary since the
bridges on the equivalent-match projects are not a part of the state highway
system. Also, structural improvement work is being accomplished outside the
department's purview. Therefore, in the interest of public safety and legal
compliance, the department desires to inform the local government of its responsibilities.
Subsection (d)(5) specifies the criteria that will be considered by the
district engineer when deciding whether to approve a waiver. The department
is responsible for the administration of the off system bridge program, and
desires to enhance the safety of the traveling public and ensure stewardship
of public funds. The criteria described in this paragraph will ensure that
a project is not undertaken by a local government without assurance that the
public will be best served by the proposal. The district engineer will consider
the type of work proposed for the equivalent-match project(s). Consideration
of the type of work is needed to ensure that, to the greatest extent possible,
the most deficient and unsafe off system bridges are being addressed. "Regional
transportation needs" are required to be addressed to ensure that optimum
movement and volume of traffic service are considered. The past performance
of the local government in the participation-waived program must be considered
in order to ensure overall efficiency and equitable administration of this
program.
Subsection (d)(6) describes the procedures to be used by the district engineer
when notifying a local government of the approval or disapproval of a waiver.
After review of the request for waiver by the district engineer, a letter
will be submitted to the requesting local government indicating approval or
disapproval. If disapproved, the letter will state the reasons for disapproval.
If the waiver is approved, the letter will state that the local government,
for the equivalent-match project(s), will assume: all costs of the work; responsibility
for complying with all applicable state and federal environmental regulations
and permitting requirements; and responsibility for the engineering and construction
necessary for completion of the work.
Subsection (d)(7) described additional provisions and conditions related
to the administration of this subsection. The local government will be allowed
three years after the contract award bid opening of the participation-waived
project to complete structural improvements on the equivalent-match project(s).
The department believes this requirement will allow the local government time
to marshal forces, accumulate materials, and otherwise carry out the agreed-to
work. Within the specified three-year period for accomplishing the equivalent-match
project(s), and no later than 30 days after completion of the equivalent-match
project(s), documentation of completion of the equivalent-match project(s)
requirement will be provided by letter to the district engineer. This notification
is necessary in order for the department to verify compliance. If the local
government fails to adequately complete the equivalent-match project(s), the
local government will be excluded from future waivers under this subsection
for a minimum of five years. This requirement is necessary to ensure program
efficiency and equitable administration for all participating local governments.
The local government is responsible for all of the direct cost of any participation-waived
project cost item or portion of a cost item that is not eligible for federal
participation under the Federal Highway Bridge Replacement and Rehabilitation
Program (HBRRP) under 23 U.S.C. §144 and 23 C.F.R. §650 Subpart
D. The local government is also responsible for any costs resulting from changes
made at the request of the local government. Since participation-waived projects
are HBRRP projects, all work involved is required to meet specified eligibility
requirements.
A local government located in an economically disadvantaged county that
receives an adjustment under subsection (b) of this section may participate
in the provisions of subsection (d) in the amount of its reduced matching
funds requirement. This requirement is needed for equitable administration
of the equivalent-match program to all local governments. To ensure compliance
with state law, the department will not reimburse funds already received by
the department under the terms of existing agreements.
FISCAL NOTE
James Bass, Director, Finance Division, has determined that for the first
five-year period the amendments are in effect, there will be fiscal implications
for state or local governments as a result of enforcing or administering the
amendments. The effect on state government for the first five-year period
the amended section will be in effect will be an additional cost of $2.5 million
to the department for each of the next five years due to waiving the local
contribution. There will be no effect on local governments. There are no anticipated
economic costs for persons required to comply with the amendments as proposed.
Mary Lou Ralls, P.E., Director, Bridge Division, has certified that there
will be no significant impact on local economies or overall employment as
a result of enforcing or administering the amended section.
PUBLIC BENEFIT
Ms. Ralls has also determined that for each year of the first five years
the section is in effect, the public benefit anticipated as a result of enforcing
or administering the amendments will be that construction of additional priority
projects will result in increased numbers of deficient off system structures
being structurally improved thereby reducing their numbers and increasing
safety. There will be no effect on small businesses.
SUBMITTAL OF COMMENTS
Written comments on the proposed amendments may be submitted to Mary Lou
Ralls, P.E., Director, Bridge Division, 125 E. 11th Street, Austin, Texas
78701-2483. The deadline for receipt of comments is 5:00 p.m. on July 10,
2000.
STATUTORY AUTHORITY
The amendments are proposed under Transportation Code, §201.101, which
provides the Texas Transportation Commission with the authority to establish
rules for the conduct of the work of the Texas Department of Transportation.
No statutes, articles, or codes are affected by the proposed amendments.
§15.55.Construction Cost Participation.
(a)
Required cost participation. The commission may require,
request, or accept from a local government matching or other funds, rights-of-way,
utility adjustments, additional participation, planning, documents, or any
other local incentives.
(b)
Economically Disadvantaged Counties
[
(1)-(2)
(No change.)
(c)
Participation ratios.
The following Appendix
A to this section establishes federal, state, and local cost participation
ratios for highway improvement projects, subject to the availability of funds
to the department.
Figure: 43 TAC §15.55(c)(No Change)
(d)
Off state highway system bridge
program.
(1)
Definitions. The following words and terms,
when used in this subsection, shall have the following meanings, unless the
context clearly indicates otherwise.
(A)
Bridge - For an equivalent-match project, a
bridge or other mainlane cross-drainage structure.
(B)
Deficient bridge - A bridge having a condition
or load capacity that is inadequate.
(C)
District engineer - The chief executive officer
in each designated district office of the department.
(D)
Equivalent-match project - A project in which
the local government will structurally improve off state system bridges utilizing
100% local funds.
(E)
Participation-waived project - An off-state
system bridge project in which the state agrees to pay for local participation
for eligible preliminary engineering, construction, and construction engineering
costs as shown in subsection (c) of this section. This project must be on
the department's approved Unified Transportation Program, satisfy minimum
standards established by the department for off state system bridges, and
meet the additional requirements of this subsection.
(2)
Waiver. The district engineer may
waive the requirement for a local government to provide the original 10% estimate
of direct costs for preliminary engineering, construction engineering, and
construction funds on the participation-waived project(s) if the local governmental
body commits by written resolution, as described in paragraph (4) of this
subsection, to spend an equivalent amount of funds for structural improvement
work on another bridge or bridges on the equivalent-match project(s) within
its jurisdiction. An equivalent amount includes, but is not limited to, expenditures
for direct or indirect costs for structural improvement work on bridge(s)
in the equivalent-match project(s).
(3)
Eligibility. A local government is eligible
for a waiver if:
(A)
the construction contract for the participation-waived
project has not been awarded;
(B)
work on the equivalent-match project has not
begun prior to approval of the waiver;
(C)
the local government is in compliance with load
posting and closure regulations as defined in the National Bridge Inspection
Standards under 23 C.F.R. §650.303;
(D)
the bridge on the proposed equivalent-match
project(s) is a deficient bridge or a bridge on a school bus route that is
weight restricted for school buses; and
(E)
the equivalent-match project increases the load
capacity of the existing bridge or upgrades the bridge to its original capacity,
with a minimum upgrade to safely carry school bus loading if located on a
school bus route.
(4)
Request for waiver. To request a waiver,
a local government must provide a written request to the district engineer
that includes the location(s), description of structural improvement work
proposed, estimated cost for the equivalent-match project(s), and a copy of
the local governmental body's resolution. The resolution must acknowledge
assumption of all responsibilities for engineering and construction and complying
with all applicable state and federal environmental regulations and permitting
requirements for the bridge(s) on the equivalent-match project(s).
(5)
Considerations. In approving a request
for waiver, the district engineer will consider:
(A)
the type of work proposed for the equivalent-match
project(s);
(B)
regional transportation needs; and
(C)
past performance under this subsection.
(6)
Approval. The district engineer will
submit a letter to the local government indicating the district engineer's
approval or disapproval of the waiver. If disapproved, the letter will state
the reasons for disapproval. If the waiver is approved, the letter will state
that the local government, for the equivalent-match project(s) will assume:
(A)
all costs of the work;
(B)
responsibility for complying with all applicable
state and federal environmental regulations and permitting requirements; and
(C)
responsibility for the engineering and construction
necessary for completion of the work.
(7)
Agreement and conditions.
(A)
If the district engineer approves the waiver,
the local government and the department will enter into an agreement for the
participation-waived project as specified in §15.52 of this subchapter.
(B)
Local governments will be allowed three years
after the contract award of the participation-waived project to complete structural
improvements on the equivalent-match project(s). No later than 30 days after
completion, documentation of completion of the equivalent-match project(s)
requirement will be provided by letter to the district engineer. If the local
government fails to adequately complete the equivalent-match project(s), it
will be excluded from future waivers under this subsection for a minimum of
five years.
(C)
The local government is responsible for all
of the direct cost of any participation-waived project cost item or portion
of a cost item that is not eligible for federal participation under the Federal
Highway Bridge Replacement and Rehabilitation Program under 23 U.S.C. §144
and 23 C.F.R. §650 Subpart D. The local government is also responsible
for any costs resulting from changes made at the request of the local government.
(D)
The local government will be responsible for
100% of right of way and utilities for the participation-waived project.
(E)
A local government located in an economically
disadvantaged county that receives an adjustment under subsection (b) of this
section may participate in the provisions of this subsection in the amount
of its reduced matching funds requirement.
(F)
The department will not reimburse funds already
received by the department under the terms of existing agreements.
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 May 26, 2000.
TRD-200003764
Richard Monroe
General Counsel
Texas Department of Transportation
Earliest possible date of adoption: July 9, 2000
For further information, please call: (512) 463-8630
Subchapter B. MOTOR VEHICLE REGISTRATION
(1)
Cash and near-cash assets - All currency,
negotiable instruments, bank deposits, savings deposits, certificates of deposit,
and all other accounts and marketable financial securities which the utility
owns and could convert to currency within one year.
]
(2)
] Commission - The Texas
Transportation Commission.
(3)
] Completion of work -
That point in time at which operational capability is restored to the utility
facility.
(4)
CPA - A certified public accountant,
licensed to practice in Texas.
]
(5)
] Department - The Texas
Department of Transportation.
(7)
Executive director - The executive
director of the department.
]
(8)
] Hardship - A short term
financial condition which prevents a utility from being able to pay for the
cost of a relocation or adjustment to its facilities in full or in part at
the time of relocation, or if paid at that time, would adversely affect the
utility's ability to operate or provide essential services to its customers.
(9)
] Interest at six percent
per annum - A daily accrual of interest calculated by multiplying the accumulated
balance of the total amount expended or advanced under this subsection plus
any prior accrued interest less any payments received by a daily interest
factor calculated by dividing six percent per annum by 360 days per financial
year.
(10)
] Security - Pledges of
revenues, account balances, and/or other assets, other methods of guarantee
or surety, or pledges to raise utility rates or taxes, which are sufficient
to provide for timely payment of the amount financed under this subchapter
plus accrued interest.
(11)
] Short term financial
condition - A financial condition existing
at the time of a relocation
or adjustment, but that would not prevent a utility from paying for the cost
of a relocation or adjustment to its facilities within five
[
for
no more than three
] years [
prior to the utility relocation and
which is expected to exist for no more than three years
] after the utility
relocation
or adjustment
.
(12)
] Utility - A publicly,
privately, or cooperatively owned utility that provides telephone, telegraph,
communications, electric, gas, heating, water, railroad, storm sewer, sanitary
sewer, or pipeline service.
(13)
] Year - Except as required
by Transportation Code, Section 203.0921(b), to be defined by agreement between
the department and the utility as either a calendar year or the state fiscal
year or the utility's fiscal year.
Chapter 15.
TRANSPORTATION PLANNING AND PROGRAMMING
undesignated head
] set forth the procedures and criteria of the department by which routes
are to be chosen and included on the Texas Highway Trunk System.
undesignated head
], shall have the following meanings, unless
the context clearly indicates otherwise.
State Highway and
Public
] Transportation Commission.
State
]
Department of [
Highways and Public
] Transportation.
(3)
Engineer-director - The state engineer-director
for highways and public transportation.
]
Truck
]
System - A rural network of four-lane or better divided roadways that will
serve as a principal connector of all Texas cities with over 20,000 population
as well as major ports and points of entry, not to exceed a total system mileage
of 11,500 miles.
engineer-director
] based upon one or more
of the criteria set out in this section. To be included in the Texas Highway
Trunk System the commission will give consideration to routes:
and
]
Subchapter E. FEDERAL, STATE, AND LOCAL PARTICIPATION
title
] (relating to Construction Cost Participation).
When specified, the reservoir agency will provide all necessary right of way
and utility/relocation adjustments, whether publicly or privately owned. Existing
utilities will be relocated and/or adjusted with respect to location and type
of installation in accordance with the requirements of the department as specified
in §21.21 of this title (relating to State Participation in Relocation,
Adjustment, and/or Removal) and §21.31 et seq. of this title (relating
to Utility Accommodation).
title
]. The funding
arrangement agreed upon by the department and the reservoir agency will be
as specified under §15.54(f) of this
subchapter
[
title
(relating to Construction)
].
title
];
and
Exception
]. In evaluating a proposal for a highway improvement project in a local
government that consists of all or a portion of an economically disadvantaged
county, the commission shall, for those projects in which the commission is
authorized by law to provide state cost participation, adjust the minimum
local matching funds requirement after evaluating a local government's effort
and ability to meet the requirement.
Chapter 17.
VEHICLE TITLES AND REGISTRATION