| (a) Required cost participation. The commission may
require, request, or accept from a local government matching or other
funds, rights-of-way, utility adjustments, additional participation,
planning, documents, or any other local incentives.
(1) Participation ratios. Except as provided in subsections
(b) and (d) of this section, the agreement between the local government
and the department must include participation ratios as described
in subsection (c) of this section.
(2) In-kind contributions. The department will accept
in-kind contributions for local government matching or other funds
only under agreements that do not include highway construction.
(b) Economically disadvantaged counties. In evaluating
a proposal for a highway improvement project with a local government
that consists of all or a portion of an economically disadvantaged
county, the executive director shall, for those projects in which
the commission is authorized by law to provide state cost participation,
adjust the minimum local matching funds requirement after receipt
of a request for adjustment under paragraph (4) of this subsection.
(1) Commission certification. The commission will certify
a county as an economically disadvantaged county on an annual basis
as soon as possible after the comptroller reports on the economic
indicators listed in Transportation Code, §222.053(a).
(2) Local match adjustment for a county described by
Transportation Code, §222.053(a). In determining the adjustment
to the local matching funds requirement, and a local government's
effort and ability to meet the requirement, the commission will consider
a local government's:
(A) population level;
(B) bonded indebtedness;
(C) tax base;
(D) tax rate;
(E) extent of in-kind resources available; and
(F) economic development sales tax.
(3) Local match adjustment for a county described by
Transportation Code, §222.053(a-1). The adjustment will be equivalent
to the highest adjustment rate set in the last year the county was
considered to meet the criteria set out in Transportation Code, §222.053(a).
(4) Request for adjustment. The city council, county
commissioners court, district board, or similar governing body of
a local government that represents all or a portion of an economically
disadvantaged county, shall submit a request for adjustment to the
local district office of the department. The request will include,
at a minimum:
(A) the proposed project scope;
(B) the estimated total project cost;
(C) a breakdown of the anticipated total cost by category
(e.g., right-of-way, utility adjustment, plan preparation, construction);
(D) the proposed participation rate;
(E) the nature of any in-kind resources to be provided
by the local government;
(F) the rationale for adjusting the minimum local matching
funds requirement; and
(G) any other information considered necessary to support
a request.
(5) Timing of determination. The executive director
will determine whether to make an adjustment at the time the local
government submits a proposal for a highway improvement or other transportation
project.
(6) Definition. For purposes of this subsection, "executive
director" means the executive director or his or her designee, not
below the level of district engineer or division or office director.
(c) Participation ratios. The department will establish
federal, state, and local cost participation ratios for highway improvement
or other transportation projects, subject to the availability of funds
to the department. In-kind participation will be valued as described
in §15.52(7)(E) of this subchapter (relating to Agreements).
(d) Off-state highway system bridge program.
(1) Definitions. The following words and terms, when
used in this subsection, shall have the following meanings, unless
the context clearly indicates otherwise.
(A) Bridge--For an equivalent-match project, a bridge
or other mainlane cross-drainage structure, including low water crossings
(with or without conduit).
(B) Deficient bridge--A bridge having a structural
load capacity or other safety condition that is inadequate.
(C) District engineer--The chief executive officer
in each designated district office of the department.
(D) Equivalent-match project--A project in which the
local government will improve the structural load capacity or other
safety condition of off-state system bridges utilizing 100% local
funds.
(E) Participation-waived project--An off-state system
bridge project in which the state agrees to pay for local participation
for eligible preliminary engineering, construction, and construction
engineering costs as shown in subsection (c) of this section. This
project must be authorized for development only, or for development
and construction, on the department's approved Unified Transportation
Program, satisfy minimum standards established by the department for
off-state system bridges, and meet the additional requirements of
this subsection.
(F) Safety work--Work performed as part of an equivalent-match
project that improves the safety of the project. This work may include,
but is not limited to, providing improved structural load capacity,
improved hydraulic capacity, increased roadway width, adequate bridge
rail, and adequate approach guardrail.
(2) Waiver. The district engineer may waive the requirement
for a local government to provide the original 10% estimate of direct
costs for preliminary engineering, construction engineering, and construction
funds on the participation-waived project(s) if the local governmental
body commits by written resolution or ordinance, as described in paragraph
(4) of this subsection, to spend an equivalent amount of funds for
structural improvement or other safety work on another bridge or bridges
on the equivalent-match project(s) within its jurisdiction or the
jurisdiction of a geographically adjacent or overlapping governmental
unit. An equivalent amount includes, but is not limited to, expenditures
for direct or indirect costs for structural improvement or other safety
work on bridge(s) in the equivalent-match project(s). Work on one
or more equivalent-match projects may be credited to one or more participation-waived
projects.
(3) Eligibility. A local government is eligible for
a waiver if:
(A) the construction contract for the participation-waived
project has not been awarded;
(B) work on the equivalent-match project has not begun
prior to approval of the waiver (approval of the waiver does not guarantee
that the participation-waived project agreement will be executed);
(C) the local government is in compliance with load
posting and closure regulations as defined in the National Bridge
Inspection Standards under 23 C.F.R. §650.303;
(D) the bridge on the proposed equivalent-match project(s)
is a deficient bridge, or a bridge that is weight restricted for school
buses; and
(E) the equivalent-match project increases the structural
load capacity of the existing bridge, replaces the bridge with a new
bridge, or otherwise increases safety, with a minimum upgrade to safely
carry expected school bus loading.
(4) Request for waiver. To request a waiver, a local
government must provide a written request to the district engineer
that includes the location(s), description of structural improvement
or other safety work proposed, estimated cost for the equivalent-match
project(s), and a copy of the local governmental body's resolution
or ordinance. The resolution or ordinance must acknowledge assumption
of all responsibilities for engineering and construction and complying
with all applicable state and federal environmental regulations and
permitting requirements for the bridge(s) on the equivalent-match
project(s).
(5) Considerations. In approving a request for waiver,
the district engineer will consider:
(A) the type of work proposed for the equivalent-match
project(s);
(B) regional transportation needs; and
(C) past performance under this subsection.
(6) Approval. The district engineer will submit a letter
to the local government indicating the district engineer's approval
or disapproval of the waiver. If disapproved, the letter will state
the reasons for disapproval. If the waiver is approved, the letter
will state that the local government, for the equivalent-match project(s)
will assume:
(A) all costs of the work;
(B) responsibility for complying with all applicable
state and federal environmental regulations and permitting requirements;
and
(C) responsibility for the engineering and construction
necessary for completion of the work.
(7) Agreement and conditions.
(A) If the district engineer approves the waiver, the
local government and the department will enter into an agreement for
the participation-waived project as specified in §15.52 of this
subchapter. One or more participation-waived project agreements can
utilize one or more common or independent equivalent-match projects
if the total equivalent-match project amount equals or exceeds the
total remaining local participation amount being waived at the time
the agreement is executed, and the common agreements are adequately
cross-referenced. Previously executed agreements may be amended to
incorporate these participation waiver provisions, or to utilize an
additional equivalent-match project(s) for any outstanding amount
not previously waived, provided the construction contract for the
participation-waived project has not been awarded and the equivalent-match
work has not begun.
(B) Local governments will be allowed a maximum of
three years after the contract award of the participation-waived project(s)
to complete structural or other safety improvements on the equivalent-match
project(s). If more than one participation-waived project utilizes
a common equivalent-match project, the time period allowed for completion
of the equivalent-match project(s) will begin when the first of the
participation-waived projects is awarded. The district engineer may
specify a period less than three years for completion of equivalent-match
projects if project specific conditions warrant. If specified, the
shorter allowable work period must be explicitly stated in the agreement(s).
No later than 30 days after completion, documentation of completion
of the equivalent-match project(s) requirement will be provided by
letter to the district engineer. If the local government fails to
adequately complete the equivalent-match project(s), it will be excluded
from future waivers under this subsection for a minimum of five years.
The district engineer may grant an extension to the three-year completion
requirement if a contract for the equivalent-match project(s) has
been executed within that three years and the contract timeline for
completion is reasonable. In the absence of information suggesting
that a shorter or longer period is appropriate, two years or less
will be presumed to be a reasonable time, for a maximum of five years
to complete the equivalent-match project(s) following award of the
programmed bridge. The granting of an extension to the three-year
time limit must be done in writing in response to a written request
to the district engineer from the local government. The extension
approval must specify a new required completion date.
(C) With the approval of the district engineer, an
equivalent-match project(s) may be substituted by subsequent amendment
to the participation-waived project agreement(s). A substitution may
be allowed for unforeseen circumstances, including but not limited
to, an equivalent-match project that is selected for replacement under
some other program of work. Work on the substituted equivalent-match
project(s) must be completed within a maximum of three years after
the award of the construction contract for the original participation-waived
project.
(D) The local government is responsible for all of
the direct cost of any participation-waived project cost item or portion
of a cost item that is not eligible for federal participation under
the Federal Highway Bridge Replacement and Rehabilitation Program
under 23 U.S.C. §144 and 23 C.F.R. §650 Subpart D. The local
government is also responsible for any costs resulting from changes
made at the request of the local government.
(E) The local government will be responsible for 100%
of right of way and utilities for the participation-waived project.
(F) A local government located in an economically disadvantaged
county that receives an adjustment under subsection (b) of this section
may participate in the provisions of this subsection in the amount
of its reduced matching funds requirement.
(G) The department will not reimburse funds already
received by the department under the terms of existing agreements.
Funds already received for a specific project(s) may be credited against
the local government's required participation for the subsequent participation-waived
project agreement(s) for that same project(s).
(H) Any equivalent-match project(s) cost that is in
excess of the local government's required participation for a specific
participation-waived project agreement(s) cannot be credited for use
on a future participation-waived project(s).
(I) Each equivalent-match project(s) must be specifically
identified in the participation-waived project agreement(s) at the
time of execution.
(J) The local government must pay its funding share
of the estimated participation-waived project cost, as provided in §15.52(7)(A)
of this subchapter, for any local participation balance that is remaining
at the time the project agreement(s) is executed. This balance would
include any remaining required local participation amount in excess
of the amount waived as a result of credit for equivalent-match work
to be performed as part of the agreement.
(8) Projects with neighboring states. Local cost participation
is not required for a bridge connecting Texas with a neighboring state.
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| Source Note: The provisions of this §15.55 adopted to be effective September 26, 1996, 21 TexReg 8957; amended to be effective January 1, 1998, 22 TexReg 12090; amended to be effective January 1, 1998, 22 TexReg 12090; amended to be effective February 21, 1999, 24 TexReg 1194; amended to be effective August 20, 2000, 25 TexReg 7781; amended to be effective November 14, 2001, 26 TexReg 9227; amended to be effective September 19, 2002, 27 TexReg 8776; amended to be effective January 9, 2005, 29 TexReg 12241; amended to be effective January 5, 2006, 30 TexReg 8995; amended to be effective August 19, 2010, 35TexReg7084; amended to be effective April 19, 2012, 37 TexReg 2686; amended to be effective May 14, 2014, 39 TexReg 3733; amended to be effective July 17, 2019, 44 TexReg 3551; amended to be effective December 4, 2019, 44 TexReg 7416 |
