Part 1. TEXAS DEPARTMENT OF TRANSPORTATION

Chapter 9. CONTRACT MANAGEMENT

Subchapter A. GENERAL

43 TAC §9.3

The Texas Department of Transportation (department) proposes amendments to §9.3, Protest of Department Purchases under the State Purchasing and General Services Act.

EXPLANATION OF PROPOSED AMENDMENTS

House Bill 3560, 80th Legislature, 2007, adopted Government Code, §2155.0011, which transferred state purchasing duties from the Texas Building and Procurement Commission to the comptroller. Government Code, §2155.076 requires state agency protest rules to be consistent with protest rules adopted by the comptroller.

Amendments to §9.3, Protest of Department Purchases under the State Purchasing and General Services Act, update agency titles and statutory references to reflect the transfer of state purchasing responsibilities to the comptroller. Changes to the definitions, the deadline for filing a protest and an appeal, and document retention requirements are made to make the rules consistent with the rules adopted by the comptroller's office. Various minor grammatical amendments have also been made to clarify the existing provisions of this section.

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.

Scott Burford, Director, General Services 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 AND COST

Mr. Burford 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 efficient and effective resolution of protests concerning purchases. There are no anticipated economic costs for persons required to comply with the section as proposed. There will be no adverse economic effect on small businesses.

SUBMITTAL OF COMMENTS

Written comments on the proposed amendments to §9.3 may be submitted to Scott Burford, Director, General Services 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 April 14, 2008.

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 department and, more specifically, Government Code, §2155.076, which requires the department to adopt rules concerning protest of purchase.

CROSS REFERENCE TO STATUTE

Government Code, §2155.076.

§9.3.Protest of Department Purchases under the State Purchasing and General Services Act.

(a) Purpose. The purpose of this section is to provide a procedure for vendors to protest purchases made by the department. Purchases made by the Texas Procurement and Support Services division of the Comptroller of Public Accounts office [General Services Commission] on behalf of the department are addressed in 34 TAC Chapter 20 [1 TAC Chapter 111].

(b) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Act--Government Code, Chapters 2151-2177, the State Purchasing and General Services Act.

(2) Commission--The Texas Transportation Commission.

(3) Department--The Texas Department of Transportation.

(4) Director of general services--The director of the general services division of the department.

(5) Director of purchasing--The director of purchasing in the general services division of the department.

(6) District engineer--The chief administrative officer in charge of a district of the department.

(7) Division--An organizational unit in the department's Austin headquarters.

(8) Executive director--The executive director of the department.

(9) Interested party--A vendor that has submitted a bid , proposal, or other expression of interest for the purchase involved.

(10) Purchase--A procurement action for commodities or non-professional services under the Act.

[(11) Rules--1 TAC §§113.1-113.87, the State Purchasing Rules.]

(c) Filing of protest.

(1) An actual or prospective bidder or offeror who is aggrieved in connection with the solicitation, evaluation, or award of a purchase may file a written protest. The protest must be addressed to the attention of the district engineer in whose district the action is being or was processed, or to the director of purchasing for purchases made on behalf of a division, but sent to the office of the director of general services. The protest must be received in the office of the director of general services within 10 working days after such aggrieved person knows, or should have known, of the action.

(2) The protest must be sworn and contain:

(A) the [statutory or regulatory] provision of or rule adopted under the Act [or the rules] that the action is alleged to have violated;

(B) a specific description of the alleged violation;

(C) a precise statement of the relevant facts;

(D) the issue to be resolved;

(E) argument and authorities in support of the protest; and

(F) a statement that copies of the protest have been mailed or delivered to other identifiable interested parties.

(d) Suspension of award. If a protest or appeal of a protest has been filed, then the department will not proceed with the solicitation or the award of the purchase until the executive director or his or her designee, not below the level of division director, consults with the director of general services and the appropriate district engineer or the director of purchasing, and makes a written determination that the award of the purchase should be made without delay to protect substantial interests of the department.

(e) Informal resolution. The district engineer or the director of purchasing may informally resolve the dispute, including:

(1) soliciting written responses to the protest from other interested parties; and

(2) resolving the dispute by mutual agreement.

(f) Written determination. If the protest is not resolved by agreement, the district engineer or the director of purchasing will issue a written determination to the protesting party and interested parties which sets forth the reason of the determination. The district engineer or the director of purchasing may determine that:

(1) no violation has occurred; or

(2) a violation has occurred and it is necessary to take remedial action which may include [includes, but is not limited to]:

(A) declaring the purchase void;

(B) reversing the award; and

(C) re-advertising the purchase using revised specifications.

(g) Appeal.

(1) An interested party may appeal the determination to the executive director. The written [party must submit an] appeal must be received in [writing to ] the executive director's office no later than 10 working days after the date of the determination. The appeal is limited to a review of the determination.

(2) The appealing party must mail or deliver copies of the appeal to the determining district engineer or the director of purchasing and other interested parties with an affidavit that such copies have been provided.

(3) The general counsel shall review the protest, the determination, the appeal, and prepare a written opinion with recommendation to the executive director.

(4) The executive director may:

(A) issue a final written determination; or

(B) refer the matter to the commission for its consideration at a regularly scheduled open meeting.

(5) The commission may consider oral presentations and written documents presented by the department and interested parties. The chairman shall set the order and the amount of time allowed for presentation. The commission's determination of the appeal shall be adopted by minute order and reflected in the minutes of the meeting.

(6) The decision of the commission or executive director shall be final.

(h) Filing deadline. Unless the commission determines that the appealing party has demonstrated good cause for delay or that a protest or appeal raises issues significant to procurement practices or procedures, a protest or appeal that is not filed timely will not be considered.

(i) Document retention. The department shall maintain all documentation on the purchasing process that is the subject of a protest or appeal in accordance with the retention schedule of the department.

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 February 29, 2008.

TRD-200801213

Bob Jackson

General Counsel

Texas Department of Transportation

Earliest possible date of adoption: April 13, 2008

For further information, please call: (512) 463-8683

43 TAC §9.38

The Texas Department of Transportation (department) proposes amendments to §9.38, Contract Management.

EXPLANATION OF PROPOSED AMENDMENTS

Senate Bill 924, 80th Legislature, 2007, amended Government Code, Chapter 2252, Subchapter Z, relating to rules and policies adopted by state agencies regarding engineering or architectural errors or omissions. The legislative amendments require that all state agency rules and policies that address errors and omissions contain certain specified provisions. Because the required provisions are more appropriate for a policy than for administrative rules, the department has adopted an internal policy document that contains the required provisions. In addition, standard contract provisions adequately address errors and omissions recovery. Therefore, subsection (f), dealing with errors and omissions, is not necessary and is being deleted.

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.

Mark Marek, Director, Design 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 AND COST

Mr. Marek 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 clarification of the department errors and omissions policy and procedures. There are no anticipated economic costs for persons required to comply with the sections as proposed. There will be no adverse economic effect on small businesses.

SUBMITTAL OF COMMENTS

Written comments on the proposed amendments to §9.38 may be submitted to Mark Marek, Director, Design 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 April 14, 2008.

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 department.

CROSS REFERENCE TO STATUTE

Government Code, §2252.904.

§9.38.Contract Management.

(a) DBE/HUB participation.

(1) HUB program goals may be satisfied by a HUB prime provider. DBE prime providers may receive DBE credit for work performed by its own forces or performed by a DBE subprovider, but not by a non-DBE subprovider.

(2) If the prime provider or the subprovider is a DBE/HUB, the DBE/HUB provider and subprovider may subcontract in accordance with §9.56 of this title (relating to Contract Compliance).

(b) Subcontracts. A prime provider shall perform at least 30% of the contracted work with its own work force unless approved by the director of the Design Division when the work is so specialized that the prime provider cannot perform at least 30% of the work.

(c) Operations.

(1) Management responsibility. The department's project manager will be designated by the managing officer.

(2) Project manager. The prime provider's project manager may not be changed without prior written consent of the department.

(3) Commencement of work. The provider shall not proceed with any contract work until advised in writing by the department to proceed.

(4) Suspension of work. The department may suspend the work by:

(A) verbally notifying the provider; and

(B) providing written notification of the suspension, including:

(i) identifying the reason for suspension; and

(ii) identifying approximate length of suspension and payment based on actual work completed as of the date of suspension.

(5) Payment on provider contracts. Payment for eligible costs will be made within 30 days after receiving a correct invoice. Payment may be withheld pending verification of satisfactory work performed. To receive payment for services, the provider shall submit to the department project manager:

(A) a monthly progress report;

(B) an itemized and certified invoice; and

(C) a DBE/HUB report (The CSTB may require proof of DBE/HUB use, including submittal of canceled checks that are properly identified by department project number or contract number).

(6) Interim audit. The department may perform interim audits.

(d) Supplemental agreements.

(1) The original executed contract will require a supplemental agreement if:

(A) additional funding is required in accordance with terms of the contract;

(B) additional time is needed to complete work in progress; or

(C) changes in scope of services are necessary.

(2) The supplemental agreement will be executed:

(A) prior to the expiration date of the original contract;

(B) prior to exceeding the contract amount; and

(C) prior to performance of unauthorized work.

(e) Indefinite deliverable contract work authorization. If the department and the provider are unable to execute a satisfactory work authorization containing a fair and reasonable price, the department project manager shall end negotiations with that provider. Only after negotiations have been ended will the department contact another provider with an indefinite deliverable contract to initiate negotiations for the work.

[(f) Errors and omissions, claims.]

[(1) Policy. It is the department's policy to require providers to correct errors or omissions in the providers' services which are required under the contract without undue delay and without additional cost to the department.]

[(2) Procedure.]

[(A) Claim by department.]

[(i) The department will notify the provider of errors and omissions.]

[(ii) The department will offer the provider an opportunity for informal resolution, and will attempt to resolve a claim informally.]

[(iii) If informal resolution fails, the department may file a claim against a provider in a court of competent jurisdiction. The procedure for the department to file a claim in a court of competent jurisdiction, including the deadline to file a claim, is set by other law.]

[(B) Claim by prime provider. The procedure concerning a claim by a prime provider and counter claim by the department is set out in §9.2 of this title (relating to Contract Claim Procedure).]

(f) [(g)] Contract close out.

(1) Final audit. The department's Audit Office may perform an audit.

(2) Time. A contract is ready for close out when:

(A) services have been provided;

(B) products have been received and accepted;

(C) approval has been received from the U.S. Department of Transportation, when federally funded;

(D) payments have been made;

(E) audit findings have been resolved;

(F) the contract expires unless extended by supplemental agreement; and

(G) the final DBE/HUB report has been submitted.

(g) [ (h) ] Provider performance evaluations.

(1) The department will document demonstrated competence and qualifications by evaluating the prime provider and project manager's performance.

(A) The evaluation shall be conducted annually at twelve month intervals during ongoing contract activity, upon completion of a contract, or when the managing office determines that the work is behind schedule or not being performed according to the contract.

(B) Optional evaluations may be conducted upon completion of a contract phase.

(2) The department may evaluate project constructability every 12 months during project construction and upon completion of the construction contract.

(3) The department will give a copy of the performance evaluation to the prime provider for review and comment. If the prime provider responds with comments on its evaluation, the department will include the comments in the CCIS database identified in §9.41 of this title (relating to Precertification).

(4) Performance evaluation scores will be entered into the CCIS database and may be used in determining the qualifications of the prime provider or subprovider in accordance with §9.35 (relating to Short List Meeting, Proposals, and Evaluation) or §9.36 (relating to Short List Interviews and Evaluation) 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 February 29, 2008.

TRD-200801214

Bob Jackson

General Counsel

Texas Department of Transportation

Earliest possible date of adoption: April 13, 2008

For further information, please call: (512) 463-8683

Subchapter G. INFORMATION LOGO SIGN AND TOURIST-ORIENTED DIRECTIONAL SIGN PROGRAM

43 TAC §§25.401, 25.405, 25.406, 25.408

The Texas Department of Transportation (department) proposes amendment to §25.401, Definitions; §25.405, Commercial Establishment Eligibility; §25.406, Major Shopping Area Eligibility; and §25.408, TOD Sign Program Operation, all concerning the Information Logo Sign and Tourist-Oriented Directional Sign Program.

EXPLANATION OF PROPOSED AMENDMENTS

Under Transportation Code, Chapter 391, the department is responsible for managing several sign programs designed to provide motorists with information. The programs are Specific Information Logo Signs (Logo), Major Shopping Area Guide Signs (MSAG), and Tourist-Oriented Directional Signs (TOD).

House Bill 3441, 80th Legislature, Regular Session, 2007, amended Transportation Code, §391.092 to authorize the Texas Transportation Commission (commission) to establish by rule what constitutes an eligible highway for location of Logo and MSAG signs. The statute requires that any rule adopted by the commission must be in accordance with federal law, regulations, and guidelines.

House Bill 3441 also removed the statutory definition of a major shopping area and authorized the department to determine by rule what type of retail establishment will qualify for a sign under the program. The rule must comply with federal regulations and guidelines for the sign program. The MSAG urban highway restriction was also removed from the statute allowing the department to authorize signs on any eligible highway.

The proposed amendments are designed to implement the provisions of House Bill 3441 as well as make other minor clarifications to the existing eligibility requirements.

Amendments to §25.401, Definitions, change the definition for the term "eligible highway" as used in relation to the Information Logo Sign Program. House Bill 3441 repealed the statutory definition for eligible highway allowing the commission to set the definition by rule. This amendment removes the restrictive language regarding population and a 65 mile per hour speed limit from the definition and will allow Logo signs on any controlled access highway. Federal guidelines require the use of the signs to be limited to areas where adequate sign spacing can be achieved. The department currently allows the placement of a Logo sign on a controlled access highway under the variance program. The amendment will streamline the department's operation by removing the need for a variance request procedure and review. Due to the current policy, the department does not anticipate an increase in the number of installed Logo signs.

Amendments to §25.405, Commercial Establishment Eligibility, clarify the requirements for participation in the Specific Information Logo Sign Program.

In §25.405(b)(2)(B) a requirement for a food establishment is that the food be prepared on site. The department has determined that this is too restrictive and does not reflect how some food establishments are currently operating. The department currently allows an exception to this requirement by variance. Because of the variance program, the department does not anticipate any increase in the total number of Logo signs installed under the program due to this amendment.

The requirements for eligibility for a lodging establishment under §25.405(b)(3)(B) are amended to clarify that the establishment must have 10 guest rooms with adequate sleeping accommodations. The current language only requires that the business have 10 rooms. This change will reinforce the need for participating lodging establishments to be of sufficient size and quality to accommodate the needs of the traveling public.

Amendments to §25.405(b)(4) add that camping sites have sanitary facilities for recreational vehicles to be eligible for a camping facility Logo sign. This change is needed to comply with the requirements of Transportation Code, §391.093(e)(3). The amendments also require the facility be able to accommodate all types of recreational vehicles, travel trailers, campers, and tents. This change clarifies that a Logo sign is only available to a camp facility that accommodates all types of camping.

Amendments to §25.406, Major Shopping Area Eligibility, change the criteria to qualify for a Major Shopping Area Guide sign. House Bill 3441 deleted the specific statutory definition of major shopping area; therefore, the commission can now establish new criteria to meet the recent trends in the development of retail facilities. When the program was originally implemented, enclosed shopping malls were the typical major shopping areas. However, today many shopping areas are smaller in total size, are not totally enclosed, and consist of separate buildings of a unified theme. The changes in §25.406(a) allow signs for these new types of major shopping areas. The amendments require that there be at least 10 retail establishments, with a combined building area of at least 650,000 square feet, located within close proximity to one another, and that there be at least two anchor stores that have a combined minimum of 150,000 square feet of building area. The amendments to §25.406(a) also require that the architectural design of the buildings must be consistent and that the retail establishments must be planned, developed, and managed as a single property. These requirements have been developed through the existing variance program. The department believes that these minimum requirements will ensure that the areas eligible for an MSAG sign are major shopping areas and not neighborhood retail centers. The department currently allows shopping areas meeting these minimum requirements to obtain an MSAG sign under the variance program. Incorporating this current practice into the program rules will allow the department to streamline our internal process to operate the program. Due to the current policy, the department does not anticipate that the change in the rule will increase the number of MSAG signs.

Section 25.406(a) is also amended to remove the term "urban" from the section to comply with the changes in House Bill 3441.

Amendments to §25.408, TOD Sign Program Operation, clarify the existing requirements for a participating commercial tourist-oriented enterprise. The amendment changes the language of §25.408(a)(2)(C)(i) so that an entity is required to provide, not produce, a service or product of interest to the tourist community. The language regarding the amount of time that the entity must be opened is changed to clarify that the entity must be open five days and that one of those five days must be either Saturday or Sunday. Section 25.408(a)(2)(C)(i) is also amended to replace the requirement that the entity be an independent enterprise with the requirement that it be a tourist destination or an accommodation to clarify that, to qualify for participation, the entity must be of interest to tourists.

FISCAL NOTE

James Bass, Chief Financial Officer, has determined that for each of the first five years the amended sections as proposed are in effect, there will be no fiscal implications for state or local governments.

Carlos A. Lopez, P.E., Director, Traffic Operations 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 AND COST

Mr. Lopez has also determined that for each 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 more efficient operation of the Information Logo Sign and Tourist-Oriented Directional Sign programs. The amendments will also implement House Bill 3441, 80th Legislature. There are no anticipated economic costs for persons required to comply with the sections as proposed. There will be no adverse economic effect on small businesses.

SUBMITTAL OF COMMENTS

Written comments on the amendments to §25.401, §25.405, §25.406, and §25.408 may be submitted to Carlos A. Lopez, P.E., Director, Traffic Operations Division, 125 East 11th Street, Austin, Texas 78701-2483. The deadline for receipt of comments is 5:00 p.m. on April 14, 2008.

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, §391.092 and §391.0935, which provides the commission with the authority to establish rules regarding the Specific Information Logo Sign Program and Tourist-Oriented Directional Sign Program.

CROSS REFERENCE TO STATUTE

Transportation Code, §391.001 and Transportation Code, Chapter 391, Subchapter D.

§25.401.Definitions.

The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Business logo--A separate sign panel of specified dimensions attached to a specific information logo sign assembly and containing the commercial establishment name, symbol, brand, trademark, or combination.

(2) Commercial establishment--A privately owned business or corporation offering one or more of the primary motorist services.

(3) Commission--The Texas Transportation Commission.

(4) Contractor--A person, firm, group, or association in the State of Texas that acts as the authorized agent of the department in the operation of the specific information logo or the tourist-oriented directional (TOD) sign program.

(5) Department--The Texas Department of Transportation.

(6) Driveway access--A vehicle entrance, built in compliance with state and local standards and regulations, for use by the public providing access from a public street or highway to a commercial establishment or major shopping area.

(7) Dual logo--A panel on a specific information logo sign containing the names of either:

(A) two food establishments in a shared space under common ownership; or

(B) a gas and food establishment in a shared space under common ownership.

(8) Eligible highway--

(A) for information logo signs, a controlled access highway on the designated state highway system; or [that is:]

[(i) located inside an urbanized area with a population of 50,000 or more; or]

[(ii) located outside an urbanized area with a population of 50,000 or more and was eligible for a 65 mile per hour speed limit on December 7, 1995; or]

(B) for TOD signs and participating facilities, a non-controlled access highway located on the designated state highway system outside the corporate limits of a municipality with a population of 5,000 or more.

(9) Executive director--The executive director of the Texas Department of Transportation or his or her designee.

(10) Gross building area--Square footage of usable area within a building, or series of buildings, that is considered usable by the retail businesses and the public.

(11) Information logo sign--A specific information logo sign assembly or a major shopping area guide sign.

(12) Interchange--The intersection of the centerlines of an eligible highway and a crossroad.

(13) Major portion--Fifty-one percent or more.

(14) Major shopping area guide sign--A rectangular supplemental sign panel imprinted with the name of the retail shopping area as it is commonly known to the public and containing directional information.

(15) Major shopping area ramp sign--A supplemental sign with the common name of the major shopping area, directional arrows, and/or distances placed near an eligible highway exit ramp or access road.

(16) Multiple crossroad interchange--An interchange in which one exit in a direction of travel from an eligible highway provides the only point of access for two or more crossroads; the center of a multiple crossroad interchange is the mid-point of the intersection of the centerline of the eligible highway and centerlines of the affected crossroads.

(17) Pharmacy services--The act of accepting and filling prescriptions by or under the supervision of a pharmacist licensed by the State of Texas.

(18) Primary motorist service--Gas, food, lodging, camping, or 24-hour pharmacy services available to the traveling public.

(19) Ramp business logo--A reduced size separate sign panel of specified dimensions attached to a ramp sign and containing the commercial establishment name, symbol, brand, trademark, or combination.

(20) Ramp sign--A supplemental sign with ramp business logos or the name of the major shopping area, directional arrows, and distances placed near an eligible highway or eligible highway exit ramp.

(21) Specific information logo sign assembly--A rectangular supplemental sign imprinted with the words "GAS," "FOOD," "LODGING," "CAMPING," or "24 HOUR Rx" or with a combination of those words, and the names (or business logos) of commercial establishments offering those services.

(22) State--the State of Texas.

(23) Texas MUTCD--Texas Manual on Uniform Traffic Control Devices for Streets and Highways, latest edition, issued by the Texas Department of Transportation.

(24) TOD sign assembly--An official sign structure erected under the TOD sign program containing one or more TOD panels and located on a TOD sign program eligible highway as defined in this subchapter.

(25) TOD sign panel--An individual sign panel of a business or entity participating in the TOD program contained on a TOD sign assembly.

(26) TOD sign program--Tourist-oriented directional sign program.

(27) Trailblazer sign--A sign used in conjunction with the TOD sign program off of the designated state highway system that indicates the direction to the participating business or entity.

§25.405.Commercial Establishment Eligibility.

(a) General requirements for specific information logo sign eligibility. To be eligible to have a business logo placed on a specific information logo sign, a commercial establishment must:

(1) offer at least one primary motorist service;

(2) be located with driveway access to the access road (frontage road), ramp, or intersecting crossroad;

(3) be visible, or have on-premise signing visible, from the commercial establishment's driveway access or the exit ramp, access road, crossroad, or intersection (or for an establishment that provides lodging, be visible from an eligible highway or an interchange on an eligible highway and be located on a street that is not more than two turns off the access or frontage road to the eligible highway); and

(4) be located not farther than three miles from an interchange on an eligible highway, but if no gas, food, lodging, or camping service participating or willing to participate in the specific information logo sign program is located within three miles of an interchange, the department may approve commercial establishments of the same service:

(A) if located not farther than six miles from the interchange;

(B) nine miles from the interchange if no service participating or willing to participate is located six miles from the interchange;

(C) 12 miles from the interchange if no service participating or willing to participate is located nine miles from the interchange; or

(D) 15 miles from the interchange if no service participating or willing to participate is located 12 miles from the interchange;

(5) comply with all applicable laws concerning the provisions of public accommodations without regard to race, religion, color, sex, or national origin; and

(6) post its hours of operation on or near the main entrance so that they are visible to the public during open and closed hours.

(b) Specific services eligibility. In addition to the general requirements for eligibility to have a business logo placed on a specific information logo sign, a commercial establishment must meet the requirements for at least one of the following primary motorist services.

(1) Gas. To be eligible to have a business logo placed on a specific information logo sign carrying the legend "GAS," a commercial establishment must provide:

(A) vehicle services, including fuel, oil, and water;

(B) restroom facilities and drinking water;

(C) continuous operation for at least 12 hours per day, seven days a week; and

(D) a telephone accessible to the public.

(2) Food. To be eligible to have a business logo placed on a specific information logo sign carrying the legend "FOOD," a commercial establishment must provide:

(A) a license or other evidence of compliance with public health or sanitation laws, if required by law;

(B) continuous operation at least 10 hours a day to serve two meals a day [prepared on site], six days a week;

(C) seating capacity for at least 16 people;

(D) public restrooms; and

(E) a telephone accessible to the public.

(3) Lodging. To be eligible to have a business logo placed on a specific information logo sign carrying the legend "LODGING," a commercial establishment must provide:

(A) a license or other evidence of compliance with laws regulating facilities providing lodging, if required by law;

(B) a minimum of [at least] 10 guest rooms each of which provides sleeping accommodations; and

(C) a telephone accessible to the public.

(4) Camping. To be eligible to have a business logo placed on a specific information logo sign carrying the legend "CAMPING," a commercial establishment must provide:

(A) a license or other evidence of compliance with laws regulating camping facilities, if required by law;

(B) a facility that is accessible to and capable of accommodating all types of recreational vehicles, travel trailers, campers, and tents;

(C) [(B)] adequate parking accommodations; [and]

(D) [(C)] drinking water; and [.]

(E) modern sanitary facilities.

(5) Pharmacy. To be eligible to have a business logo placed on a specific information logo sign carrying the legend "24 HOUR Rx," a commercial establishment must:

(A) be open for business 24 hours of each day; and

(B) provide pharmacy services 24 hours of each day.

(c) Multiple services eligibility. If a commercial establishment offers more than one primary motorist service, it will be eligible to display a business logo for each of those services on the appropriate specific information logo sign, provided that:

(1) minimum criteria for the service as described in §25.404 of this subchapter (relating to Specifications for Information Logo Signs) are met;

(2) the additional business logo(s) would not prevent participation by another eligible commercial establishment whose sole service would be displaced; and

(3) a business logo space is available.

(d) Variances.

(1) A person may request a variance from the information logo sign program. Requests for variances will only be considered if the existing requirements preclude participation in the program.

(2) A variance may be requested for a waiver of:

(A) an eligibility requirement except for the requirements listed in subsections (a)(1), (2) (except that an exception may be asked for an intersecting crossroad if the roadway with driveway access Tees into the frontage road of the eligible highway and is easily accessible or visible from that intersection), (5), and (6), and (b) of this section;

(B) location of the establishment;

(C) placement of the sign; or

(D) type of highway, except the highway must be on the state highway system and for logo signs at or near a grade-separated intersection.

(3) Variances may not be requested for restrictions regarding dual logos.

(4) A person may submit a request for a variance to the department's local district engineer indicating:

(A) which requirement of the program it does not meet; and

(B) the variance requested.

(5) The department may require additional documentation following generally accepted engineering standards, which may include, but not be limited to:

(A) traffic studies;

(B) maps indicating ramps, major arterials, ingress and egress points, existing signs and distances;

(C) traffic flow analysis including traffic counts to and from the commercial establishment or major shopping area;

(D) crash data and analysis; and

(E) detailed site plan of the commercial establishment or major shopping area, including but not limited to available parking, driveways, and location in reference to eligible highways.

(6) The executive director may grant a variance if he or she determines it is feasible to place the sign at the requested location and the sign meets the requirements of the Texas MUTCD; and

(A) the variance will substantially promote traffic safety;

(B) the variance will substantially improve traffic flow;

(C) an overpass, highway sign or other highway structure unduly obstructs the visibility of an existing commercial sign; or

(D) the variance is necessary to substantially improve the efficiency and effectiveness of communicating information needed by people to safely and efficiently use the transportation system.

(7) The executive director will indicate the reason for granting or denying a variance in writing.

§25.406.Major Shopping Area Eligibility.

(a) Eligibility criteria. To be eligible to have a major shopping area guide sign, the major shopping area must:

(1) consist of 10 or more retail commercial establishments [be a geographic area that]:

(A) that have a combined gross building area of 650,000 or more square feet; [consists of 30 acres or more of land; and]

(B) that are located within close proximity to one another [ includes an enclosed retail shopping mall that contains 1 million square feet or more of gross building area];

(C) that have a unifying architectural design theme for the commercial establishments;

(D) at least two of which are anchor retail businesses, that have a combined gross building area of 150,000 or more square feet; and

(E) that are planned, developed, and managed as a single property;

(2) be located not farther than three miles from an interchange with an eligible [urban] highway; and

(3) be located with driveway access to the eligible [urban ] highway access road (frontage road), ramp, intersecting crossroad or city street.

(b) Variances.

(1) A person may request a variance from the requirements of the major shopping area guide sign program. A request for a variance will only be considered if the existing requirements preclude participation in the program.

(2) A variance may be requested for waiver of the requirement of:

(A) eligibility;

(B) location of the major shopping area;

(C) placement of the sign; or

(D) type of highway, except the highway must be on the state highway system.

(3) A person may submit a request for a variance to the department's local district engineer indicating:

(A) which requirement of the program it does not meet; and

(B) the variance requested.

(4) The department may require additional documentation following generally accepted engineering standards, which shall include, but not be limited to:

(A) traffic studies;

(B) maps indicating ramps, major arterials, ingress and egress points, existing signs, and distances;

(C) traffic flow analysis including traffic counts to and from the major shopping area;

(D) crash data and analysis;

(E) detailed site plan of the major shopping area, including but not limited to available parking, driveways, and location in reference to eligible urban highways.

(5) The executive director may grant a variance if he or she determines it is feasible to place the sign at the location and the sign meets the requirements of the Texas MUTCD; and

(A) the variance will substantially promote traffic safety;

(B) the variance will substantially improve traffic flow;

(C) an overpass, highway sign, or other highway structure unduly obstructs the visibility of an existing commercial sign; or

(D) the variance is necessary to substantially improve the efficiency and effectiveness of communicating the information needed by people to safely and efficiently use the transportation system.

(6) The executive director will indicate the reason for granting or denying a variance in writing.

(7) A variance will not be granted if the executive director finds that:

(A) a major shopping area is located on an intersecting crossroad or city street whose name can be easily identified with the major shopping area and has existing advance and exit guide signs; or

(B) the major shopping area parking is so insufficient that it causes undue congestion of the roadway system.

§25.408.TOD Sign Program Operation.

(a) Eligibility. A facility eligible for a TOD sign panel is a winery or other business or non-profit entity including a farm, ranch or other tourist activity that meets the following requirements:

(1) General criteria. An eligible facility must:

(A) derive a major portion of its income or visitors during the normal business season from highway users not residing within 50 miles from the facility;

(B) provide a tourist-oriented service or tourist-oriented product of significant interest to the traveling public;

(C) comply with all state and federal laws relating to:

(i) provision of public accommodation without regard to race, religion, color, age, sex, or national origin; and

(ii) licensing and approval of service facilities; and

(D) be located within five driving miles from the eligible highway;

(E) provide modern restroom facilities and drinking water;

(F) be clean and in good repair; and

(G) be in compliance with provisions regarding illegal signs as defined in the Highway Beautification Act of 1965 (23 USC 131).

(2) Specific requirements. In addition to the general requirements, an eligible facility must meet the following specific requirements for at least one of the following categories of TOD sign panels.

(A) Wineries. To be eligible for a TOD sign panel a winery must:

(i) produce wine on the premises;

(ii) conduct regularly scheduled public tours of the grounds or facilities or provide such tours upon walk-up request;

(iii) market the product on the premises as a retail sale;

(iv) have a wine tasting area on the premises; and

(v) have a winery permit issued by the State of Texas.

(B) Agritourism.

(i) To be eligible for a TOD sign panel an agritourism applicant must:

(I) sow, cultivate, or produce an agricultural product on site;

(II) devote a minimum of five acres of land to the production of an agricultural product;

(III) conduct regularly scheduled public tours of the grounds or facilities or provides such tours upon walk-up request;

(IV) market the product on the premises as a retail sale; and

(V) be open twelve months a year or during the normal seasonal period.

(ii) Examples of eligible agritourism businesses include, but are not limited to, farms, ranches, nurseries, greenhouses, herb farms, wildflower farms, and farmers markets.

(C) Other commercial tourist-oriented businesses or entities.

(i) To be eligible for a TOD sign panel, an eligible commercial tourist-oriented applicant must:

(I) provide [produce] a unique or unusual commercial or non-profit service or product of significant interest to the tourist community;

(II) be open for business at least five days a week, and one of the five days must be Saturday or Sunday [that includes being open on Saturday and/or Sunday]; and

(III) be a tourist destination or an accommodation [ an independent enterprise] that is not part of a franchise or national chain.

(ii) Examples of eligible commercial tourist-oriented businesses include, but are not limited to, art/craft centers, art galleries, auction houses, amphitheaters, amusement parks, antique businesses, aquariums, arboretums, arenas, auditoriums, bed and breakfasts, boat landings/marinas, civic centers, concert halls, equestrian centers, fairgrounds, golf courses, museums, natural attractions, pavilions, stadiums, water oriented businesses, and wildlife preserves.

(3) Ineligible facilities. Facilities excluded from participation in the TOD sign program include, but are not limited to, adult entertainment facilities, animal shelters, cemeteries, convenience stores, funeral homes, gas stations, industrial parks or plants, media facilities, local jails, local police or sheriffs' offices, movie theaters, office parks, radio stations, television stations, truck terminals, post offices, medical facilities, retirement homes, veterans facilities, veterinary facilities, mobile home parks, and residential or commercial subdivisions.

(4) Final determination of eligibility. The department will make all final determinations regarding an applicant's eligibility to participate in the TOD sign program.

(b) Application.

(1) Applications for eligible facilities desiring to participate in the TOD sign program are available upon request from the department.

(2) An eligible facility desiring to participate in the TOD sign program must submit an application to the contractor and verify that all eligibility requirements are met. Applications must be submitted to the location stated on the application form. The contractor will verify the eligibility of each applicant.

(3) Applications will be reviewed by the contractor and applicants will be notified in writing of the application being approved or disapproved according to the following schedule.

(A) Within 30 days the contractor will notify the business that:

(i) the application has been received; and

(ii) that the application is complete, or that additional information is required to complete the application.

(B) The contractor will approve or disapprove the application:

(i) within 60 days after the business submits the application if no additional information is required; or

(ii) within 30 days after the date the business submits all of the additional information requested by the contractor under subparagraph (A) of this paragraph.

(c) Specifications for TOD sign assemblies and sign panels.

(1) Sign assembly. A TOD sign assembly shall:

(A) have a blue background with a white reflective border;

(B) meet all applicable provisions of the MUTCD;

(C) have background material which conforms with department specifications for reflective sheeting; and

(D) be fabricated, erected, and maintained in conformance with department specifications and fabrication details.

(2) Order of priority. TOD sign panels will be assigned to eligible facilities in the following priority: wineries, agritourism, and other commercial tourist-oriented businesses.

(3) Content. A TOD sign panel will contain no more than the following items as space limitations will allow:

(A) a maximum of two lines of text describing the name of the eligible facility;

(B) a directional arrow indicating the direction of and distance to the eligible facility; or

(C) a symbol or icon depicting the type of eligible facility as designed and approved by the department.

(4) Panel limitations. Each TOD sign assembly may have no more than three TOD sign panels.

(5) Placement. Subject to approval by the department, a TOD sign assembly shall be installed or placed:

(A) only on TOD eligible highways as defined in this subchapter;

(B) to take advantage of natural terrain;

(C) to have the least impact on the scenic environment;

(D) to avoid visual conflict with other signs within the highway right-of-way;

(E) with a lateral offset equal to or greater than existing guide signs;

(F) in advance of the intersection or business entrance on the TOD eligible highway;

(G) at least 200 feet from any other traffic control devices; and

(H) so that it does not block motorists' visibility of existing traffic control and guide signs.

(6) Maximum number of TOD sign assemblies. The maximum number of TOD sign assemblies will be limited to three per intersection approach subject to the placement requirements contained in this subchapter.

(7) Existing signs. Existing regulatory, warning, destination, guide, recreation, and cultural interest signs will not be removed; provided, however, that subject to the written approval of the department, such existing signs may be relocated by special permission of the department at the sole expense and responsibility of the contractor and only to the extent necessary to accommodate TOD signs.

(d) TOD trailblazer signs.

(1) At each turn required to be made by the traveling public from a TOD sign to the participating facility, a TOD trailblazer sign shall be in place directing the turn.

(2) Any costs associated with installation and maintenance of trailblazer signs is the responsibility of the participating facility and is not part of the TOD contract between the department and contractor.

(3) No TOD sign will be installed until all necessary trailblazer signs have been installed by the participating facility.

(4) When trailblazer signs are required to be installed off the state highway system, it will be the participating facility's responsibility to contact the private property owner or appropriate local jurisdiction for approval to install these signs.

(5) If at any time the department determines that trailblazer signing off the state highway system is not adequate to direct the motorist, the participating facility shall be notified. If action is not taken by the participating facility to correct this problem within 60 days, the TOD sign panel on the state highway system shall be removed or covered at the discretion of the department.

(e) TOD sign panel order. Order of placement of TOD sign panels will be determined by the department so as to maximize the number of participating businesses.

(f) Removal of TOD sign panel.

(1) A TOD sign panel of an eligible facility shall be removed by the contractor if the facility:

(A) ceases to exist;

(B) fails to pay the annual rental fee or other fees within 30 calendar days of the due date as specified in the agreement;

(C) does not meet the minimum requirements as stated in subsection (a) of this section, and all corrections are not made within 30 calendar days of written notification;

(D) is sold, and the new eligible facility does not continue the original tourist-oriented activity or service, or does not meet the minimum requirements for a TODS eligible facility; or

(E) relocates and is no longer eligible for participation in the program.

(2) If the TOD sign panel is removed due to the default of the eligible facility to perform within the terms of the participation agreement and this subchapter, the participation agreement is terminated between the eligible facility and the contractor. All funds paid to the contractor by the eligible facility are forfeited. Upon removal of a TOD sign panel, the vacated space becomes available pursuant to the procedures contained in this subchapter.

(3) If the TOD sign panel is removed permanently due to actions of the department, the participation agreement is terminated between the eligible facility and the contractor. Advance funds paid to the contractor by the eligible facility will be pro-rated as per the date of removal, and any remaining amounts refunded to the commercial establishment.

(g) Seasonal facilities. Seasonal facilities may participate in the TOD sign program provided they meet the general eligibility criteria for participation in the program.

(h) Existing winery signs. Wineries that currently have signs maintained by the department will be eligible to participate in the TOD sign program.

(i) Variances. Variances may not be requested for any eligibility requirements for TOD sign panels as described in this section.

(j) Allocation process for excess demand. The contractor will hold a public drawing to assign TOD sign panel spaces when there are more eligible facilities wishing to participate in the program than TOD panel spaces available at a given location.

(1) To be eligible for the selection process for the available TOD space(s), an eligible facility must have submitted a qualified application before the TOD sign program application deadline.

(2) The application deadline for the initial installation for a new or existing TOD sign assembly drawing will be set at a date specified by the contractor and approved by the department.

(3) Qualified applications received after the deadline will be placed on file and considered eligible for future drawings.

(4) Selection.

(A) Available TOD sign panel space(s) on the specific TOD sign assembly will be awarded by drawing of the qualified applications received before the application deadline.

(B) Spaces will be awarded based on the following priority: wineries, agritourism and other commercial tourist-oriented businesses.

(C) The drawing will be held publicly by the contractor at a date specified by the contractor and approved by the department in the presence of two or more department employees. When additional TOD sign panel spaces become available, additional drawings will be held as needed at a date specified by the contractor and approved by the department.

(D) The contractor shall notify applicants by certified mail of the award of the TOD sign panel space within 10 calendar days of the date of the award. To accept the award, the applicant must execute a written participation agreement with the contractor within 30 calendar days of the date of the award. The participation agreement shall be in a form as prescribed by the department and shall, at a minimum, contain all applicable provisions prescribed in 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 February 29, 2008.

TRD-200801215

Bob Jackson

General Counsel

Texas Department of Transportation

Earliest possible date of adoption: April 13, 2008

For further information, please call: (512) 463-8683