| (a) Work performed by the department. The department
and the applicant may agree that the department will, consistent with
state law, provide all or part of the work connected with the project
in the department's normal course of business. For work performed
by the department, the following provisions will apply.
(1) The department will account for all costs of the
project in the normal course of business in accordance with applicable
law.
(2) The department will make progress payments or set
aside funds from the bank on behalf of the applicant as the department
deems necessary. Such actions shall bind the applicant to repayment
according to the terms of the agreement(s). Interest shall accrue
from the date of the payment or setting aside of funds.
(3) The department's actions and decisions regarding
the project shall not be contestable by the applicant, except as expressly
provided in the financial assistance agreement.
(4) The applicant shall provide the department, and
if applicable, the Federal Highway Administration, and the Federal
Transit Administration, or their authorized representatives as applicable,
with right of entry or access to all properties or locations necessary
to perform activities required to execute the work, inspect the work
or aid otherwise in the prompt pursuit of the work.
(b) Work performed by applicant. For work performed
by the applicant, the following provisions apply.
(1) The applicant shall comply with applicable state
and federal law, and with all terms and conditions of an applicable
agreement. If approval or concurrence of the Federal Highway Administration,
the Federal Transit Administration, or any other federal agency is
required, the department may require that the applicant seek that
approval or concurrence through the department.
(2) The applicant 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 applicant that are applicable to
the project, and any exceptions the applicant has historically implemented
that have been acceptable to the public debt markets.
(3) For loans of more than $1 million, the applicant
shall, at the applicant's cost, have a full audit of its books and
records performed annually by an independent certified public accountant
selected by the applicant and reasonably acceptable to the department.
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 applicant
shall cause the auditor to provide a full copy of the audit report
and any other management letters or auditor's comments directly to
the department within a reasonable period of time after they have
been provided to the governing body of the applicant.
(4) For loans of $1 million or less, the applicant
shall:
(A) at the applicant's cost and in a format prescribed
by the department, submit an annual report to the department listing
project expenditures, providing an accounting of financial assistance
proceeds, and providing any other information requested by the department;
(B) on request of the department and at the applicant's
cost, provide a report containing the same or similar information
as required in the annual report under paragraph (4)(A) of this subsection
or information relating to project expenditures that the applicant
is required to provide to another local, state, or federal agency;
(C) hold all project records, accounts, and supporting
documents open for state or federal audits for the retention period
described in paragraph (6) of this subsection; and
(D) forward to the department, upon completion of the
project, all project files and reports as requested by the department.
(5) If required to have an audit under paragraph (3)
of this subsection, the applicant shall retain, or cause the auditor
to retain, all work papers and reports until the fourth anniversary
of the date of the audit report, unless the department notifies the
applicant in writing of a later date for the end of the retention
period. During the retention period, the applicant shall make audit
work papers available to the department within 30 days of the date
that the department requests those papers.
(6) Unless the department in writing provides a shorter
period, the applicant shall retain all original project files, records,
accounts, and supporting documents until the later of the date that:
(A) project is completed;
(B) all financial assistance under this chapter has
been repaid, if applicable; or
(C) the retention period required by applicable federal
and state law ends.
(7) If a project will become a part of the state highway
system and the department will assume jurisdiction of the project,
the applicant shall ensure that the project, including all its components
and appurtenances, is maintained in accordance with §6.44 of
this subchapter (relating to Maintenance). The applicant shall transfer
all design data, surveys, construction plans, right of way maps, utility
permits, and agreements with other entities relating to the project
to the department when the department assumes jurisdiction of the
project.
|
| Source Note: The provisions of this §6.42 adopted to be effective January 8, 1998, 23 TexReg 151; amended to be effective January 5, 2006, 30 TexReg 8990; amended to be effective March 20, 2008, 33 TexReg 2321; amended to be effective October 21, 2010, 35 TexReg 9361; amended to be effective June 21, 2012, 37 TexReg 4433 |
