Section 2: Agreements
Anchor: #TITIOSMXProject Development Agreements for the Development and Construction of Transportation Projects That Connect to the State Highway System or to a TxDOT Rail Facility
Definition: An agreement between a local toll project entity and TxDOT governing the development of the project.
Applicability: Applies to an Regional Mobility Authority (RMA) transportation project or a regionally significant highway project of another local toll project entity that connects to the state highway system or a TxDOT rail facility.
A request for Texas Transportation Commission approval to connect to the state highway system or a TxDOT rail facility must be submitted in accordance with 43 TAC §11.58 or §26.31, as applicable.
Agreement Terms: The agreement shall, at a minimum, include the following:
- Anchor: #FMVMXENO
- the responsibilities of each party concerning the design and construction of the project and Environmental Permits, Issues, and Commitments (EPIC); Anchor: #AWFEMDVW
- procedures governing the submittal of information to TxDOT; Anchor: #XGJLONGU
- timelines governing approvals by the executive director; and Anchor: #IBNDPQLC
- other terms or conditions mutually agreed upon by the parties.
Toll and RMA Projects
- Anchor: #LVVOIKJQ
- Project Development Agreements for the Development, Construction, Maintenance or Operation of a TxDOT Toll Project Anchor: #CDNWSWDH
- Project Development Agreements for the Development, Construction, Maintenance or Operation of a Toll Project within the State Highway Right of Way Anchor: #SQTVIPHU
- Project Development Agreements for County Toll Projects that are to be Part of the State Highway System Anchor: #XHVNSAJW
- Agreements for the Operation of a Transportation Project by a Regional Mobility Authority Anchor: #VNXOTEFT
- Project Development Agreements for Transferred Toll Projects
Definition: An agreement between a governmental entity that has the authority to operate a tolled highway and TxDOT governing the development, design, and construction of a toll project leased, sold, or transferred under Texas Transportation Code §228.151 and 43 TAC §27.13.
Applicability: Applies to a toll project that was leased, sold, or transferred under 43 TAC §27.13 and is located within the right of way of a state highway.
Agreement Terms: The agreement shall, at a minimum, include:
- Anchor: #CVYLCWIE
- the responsibilities of each party concerning the design and construction of the project and Environmental Permits, Issues, and Commitments (EPIC); Anchor: #YGASXHEA
- procedures governing the submittal of information to TxDOT; Anchor: #ANNYHVNH
- timelines governing approvals by the executive director, and Anchor: #QIUKIXOM
- other terms and conditions mutually agreed upon by the parties.
Financial Assistance Agreements for Project Costs to Operate Toll Facility
Definition: An agreement with a public or private entity prescribing how TxDOT will participate in the cost of a toll facility that is not under the jurisdiction of TxDOT.
Eligibility:
- Anchor: #NQOXNKWL
- a public or private entity that is authorized by state law to construct or maintain a toll facility is eligible to submit a request for financing under Texas Transportation Code §222.103 and 43 TAC §27.53. Anchor: #FGQXYFWW
- a private entity is not eligible to submit a request for a grant. Anchor: #PACEKKQC
- a public entity is required to repay to
TxDOT any money contributed by TxDOT as participation in the cost
of a toll project of the entity unless:
- Anchor: #ABWQHOFF
- the funds are held in a subaccount created under Texas Transportation Code §228.012; or Anchor: #TVELTYWW
- either TxDOT or the entity commenced the environmental review process for the project on or before January 1, 2014.
Under 43 TAC §27.54, by granting preliminary approval of a request, the Texas Transportation Commission authorized the executive director to:
- Anchor: #YEYPPNME
- evaluate the project’s limits, scope, definition, design, and other features, and identify any which adversely affect the financing of the project, including EPIC; Anchor: #BOMPNDEL
- negotiate the amount, type, and timing of disbursements of financial assistance; Anchor: #EPKKCPJW
- if the financial assistance is required to be repaid, negotiate an interest rate, a repayment schedule, collateral securing the financial assistance, and default provisions; Anchor: #GFXRGBXB
- if necessary for the project’s financial feasibility, negotiate provisions providing for the subordination of financial assistance provided under this subchapter to any other debt obligations for the project; and Anchor: #DQFGWJCC
- negotiate all other provisions necessary to complete an agreement.
The rules direct the executive director to “negotiate terms deemed necessary to comply with any requirements of preliminary approval, to protect the public’s safety, and to prudently provide for the protection of public funds while furthering the purpose of 43 TAC Chapter 27, Subchapter E.”
The rules impose additional requirements on an entity that should be included in Financial Assistance Agreements:
- Anchor: #BTJNFVFE
- The public or private entity requesting financing shall comply with applicable state and federal law, and with all terms and conditions of any agreements. If approval or concurrence of the Federal Highway Administration, the Federal Transit Administration, or any other federal agency is required, TxDOT may require that the entity requesting financing seek approval or concurrence through TxDOT. Upon request and, to the extent applicable and permitted by federal law, after reasonable advance notice and opportunity to cure from TxDOT, the entity requesting financing shall reimburse TxDOT for any federal funds that are applied by the entity requesting financing to pay costs not incurred in conformity with applicable state and federal law. Anchor: #TCBSVTBH
- The entity requesting financing shall maintain its books and records in accordance with generally accepted accounting principles in the United States, as promulgated by the Governmental Accounting Standards Board, the Financial Accounting Standards Board, or pursuant to applicable federal or state laws or regulations, and with all other applicable federal and state requirements, subject to any exceptions required by existing bond indentures of the entity requesting financing that are applicable to the project, and any exceptions the entity requesting financing has historically implemented that have been acceptable to the public debt markets. Anchor: #IXAKRHRP
- The entity requesting financing shall, at its own cost, have a full audit performed annually of its books and records by an independent certified public accountant selected by the entity requesting financing and reasonably acceptable to TxDOT. The audit must be conducted in accordance with generally accepted auditing standards promulgated by the Financial Accounting Standards Board, the Governmental Accounting Standards Board, or the standards of the Office of Management and Budget Circular A-133, Audits of States, Local Governments and Non-profit Organizations, as applicable, and with all other applicable federal and state requirements. The entity requesting financing shall cause the auditor to provide a full copy of the audit report and any other management letters or auditor’s comments directly to TxDOT within a reasonable period of time after they have been provided to the governing body of the entity requesting financing. Anchor: #YISXETOO
- The entity requesting financing shall retain all work papers and reports for a minimum of four years from the date of the audit report, unless TxDOT notifies the entity in writing to extend the retention period. If requested by TxDOT, audit work papers shall be made available to TxDOT, within 30 days of request, at any time during the retention period. Anchor: #DTWCTQRB
- The entity requesting financing shall retain all original project files, records, accounts, and supporting documents until project completion or until all financial assistance under this subchapter has been repaid, if applicable, or for the period of time required by applicable federal and state law, if longer, unless relieved of this requirement by TxDOT in writing.