| (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) needs of the department for delivery of the project
to proceed in advance of receiving local funding participation;
(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.
(D) Off-State Highway System Bridge Program Fixed Amount.
For projects funded in the Off-State Highway System Bridge Program,
the local government is responsible for a fixed amount that is based
on the specified percentage of the estimated direct costs for preliminary
engineering, construction engineering, and construction, and for the
actual direct costs for right of way and eligible utilities. The estimated
direct costs that will be used to establish the fixed amount under
this subparagraph, are based on the department's estimate of the eligible
work at the time the agreement is executed. The local government is
responsible for the estimated direct cost of any project cost item
or portion of a cost item that is not eligible for federal participation
under the Highway Bridge Program, 23 U.S.C. §144 and Highway
Bridge Replacement and Rehabilitation Program, 23 C.F.R. §650
Subpart D. The fixed amount under this subparagraph will be adjusted
through the execution of an amendment to reflect additional costs
resulting from changes made at the request of the local government,
either during preliminary engineering or construction.
(5) Interest. The department will not pay interest
on funds provided by the local government. Funds provided by the local
government will be deposited into, and retained in, the state treasury.
(6) Amendments. In the case of significantly differing
site conditions or other mutually agreed upon changes in the scope
of work authorized in the agreement, the department, and the local
government will amend the funding agreement, setting forth the reason
for the change and establishing the revised participation to be provided
by the local government.
(7) Payment provision. The agreement will establish
the conditions for payment by the local government, including, but
not limited to, the method of payment and the time of payment.
(A) Fixed price. If a fixed price funding arrangement
is used, the fixed price amount is not subject to adjustment, except
as provided for in paragraph (4)(A)(ii) of this section.
(B) Specified percentage.
(i) Upon execution of the agreement or at a later date,
unless periodic payments have been requested by the local government
and approved by the executive director, the local government will
pay, as a minimum, its funding share for the estimated cost for any
right of way and preliminary engineering for the project. Unless periodic
payments have been requested by the local government and approved
by the executive director, the local government, before the department's
scheduled date for construction contract letting, will remit to the
department an amount equal to the remainder of the local government's
funding share for the project.
(ii) 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 will
notify the local government of the amount of the difference and the
local government shall promptly transmit that 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.
(C) Periodic. After a periodically paid 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 will notify the local government of the amount
of the difference and the local government shall promptly transmit
that 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.
(D) Off-State Highway System Bridge Program. 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 changes made at the request of the local government. The local
government shall promptly transmit the required amount to the department.
(E) Valuation of in-kind contributions. Before the
department may enter an agreement under which goods, services, or
real estate are accepted rather than financial consideration, the
department will document a value for the in-kind contributions consistent
with 49 C.F.R. §18.24.
(8) Termination. If the local government 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 is participating.
If costs for local government requested items increase significantly
due to differing site conditions, determination that local government
requested work is ineligible for federal or state cost participation,
or more thorough definition of the local government's proposed work
scope, and the local government and the department are not able to
execute a mutually agreeable amendment, the department may terminate
the agreement. In this instance, the department will reimburse local
government remaining funds to the local government within 90 days
of termination.
(9) Acknowledgment. The local government 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.
(10) Local regulations. If any existing, future or
proposed local ordinance, commissioners court order, rule, policy,
or other directive, including, but not limited to, outdoor advertising
or storm water drainage facility requirements, that is more restrictive
than state or federal regulations, or any other locally proposed change,
including, but not limited to, plats or re-plats, results in any increased
cost to the department for a highway improvement or other transportation
project, the local government must commit in the agreement to being
responsible for all increased costs associated with the ordinance,
order, policy, directive, or change, regardless of the funding arrangement
specified in the agreement.
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| Source Note: The provisions of this §15.52 adopted to be effective September 26, 1996, 21 TexReg 8957; amended to be effective September 23, 1997, 22 TexReg 9260; amended to be effective January 1, 1998, 22 TexReg 12090; amended to be effective November 22, 1998, 23 TexReg 11661; amended to be effective February 21, 1999, 24 TexReg 1194; amended to be effective August 20, 2000, 25 TexReg 7781; amended to be effective September 20, 2001, 26 TexReg 7126; amended to be effective September 19, 2002, 27 TexReg 8776; amended to be effective January 9, 2005, 29 TexReg 12241; amended to be effective March 17, 2011, 36 TexReg 1693; amendedto be effective April 19, 2012, 37 TexReg 2686; amended to be effective September 18, 2014, 39 TexReg 7351; amended to be effective June 15, 2016, 41 TexReg 4293; amended to be effective July 17, 2019, 44 TexReg 3551 |
