| (a) Amount to be reimbursed. (1) General. Except as provided in paragraph (2) of this subsection, the department will reimburse the developer, through the periodic payment of pass-through tolls, an amount equal to the department estimate. (2) Exception. (A) The commission may direct the department to provide for reimbursement in an amount less than the department estimate if: (i) it determines that the project's estimated benefits to mobility do not warrant full reimbursement; (ii) it determines that the construction of the project will result in a significant economic gain to the developer; or (iii) the developer proposes to share in the cost of the project. (B) The commission may direct the department to provide for reimbursement in an amount more than the department estimate if the commission determines that there will be a financial benefit to the state, through the avoidance of inflation, as a result of building the project sooner. The additional amount authorized by the commission may not be more than the amount of the financial benefit determined by the commission. (C) The commission may establish the precise amount to be reimbursed or may establish parameters within which the executive director may negotiate. (b) Payment schedule and method. (1) Payment schedule. The schedule of pass-through toll payments will be calculated based on the department's traffic projections for the highway and a contract period to be negotiated between the department and the developer. The payment schedule may include a maximum and a minimum annual amount to be paid. Payments will be made in accordance with subsection (c)(2) of this section. (2) Variable payments. The per vehicle fee may vary within different levels of traffic volume and by type of vehicle using the facility. (c) Allocation of risk. (1) Construction and operation costs. (A) Cost overruns. Unless otherwise specified in the agreement, the developer is responsible for cost overruns caused by any reason. The department may agree to share identified cost overruns if it deems such action to be in the state's interest. The department may agree to alter the payment schedule based upon cost overruns provided that the agreement establishes a maximum amount or rate by which the department will do so. (B) Cost underruns. If actual costs are below the department estimate, the developer is not required to repay the department the difference between the actual costs and the amount designated in the agreement. (2) Traffic volume. (A) If traffic volume exceeds projections, the department will not be responsible for annual payments above the highest amount designated in the agreement. If traffic volume is less than projected, the department will pay at least the lowest amount designated in the agreement. (B) If traffic volume exceeds projections, the department may agree to reduce the time period in which the developer is reimbursed the amount designated in the agreement. If traffic volume is less than projected, the term of the agreement will be extended until the developer is reimbursed the amount designated in the agreement. |
