(a)Pass-through fares. (1)Amount to be reimbursed. (A)General. The commission shall establish the level of pass-through fares or shall establish parameters within which the department may negotiate the level of pass-through fares. In establishing the level of pass-through fares or parameters within which the department may negotiate the level of pass-through fares, the commission shall consider whether: (i)the project's estimated benefits to mobility warrant a pass-through fare at a level that is more or less than the department's estimate of project costs; (ii)the project will result in a significant economic gain or loss to the entity responsible for its development; (iii)the public or private entity proposes to share in the cost of the project; and (iv)the state or the public or private entity will benefit, and to what extent, if the project is built sooner than would be the case in the absence of a pass-through agreement. (B)Limits on pass-through fare levels. (i)The commission will not approve payment by the department of a level of pass-through fares that exceeds the department's estimate, except as permitted by this subparagraph. The commission may approve the department's payment of a level of pass-through fares that exceeds the department's current estimate, but only by the difference between the department's current estimate and the department's estimate for the time when the project would likely have been completed in the absence of a pass-through agreement. (ii)In determining the level of pass-through fares, the commission will not consider any financing cost incurred by the public or private entity. (2)Payment schedule and method. (A)Payment schedule. The schedule of pass-through fare payments will be calculated based on the department's traffic projections for the railway and a number and frequency of payments to be negotiated between the department and the public or private entity. The payment schedule may include a maximum and a minimum periodic amount to be paid annually or in total. (B)Variable payments. The pass-through fare may vary on any basis that reasonably reflects the value of improvements, the nature of the railway traffic, or benefits to the highway system, including: (i)number, type, and class of passengers; (ii)type of freight; (iii)tonnage of freight; (iv)number or type of cars; (v)mileage traveled; or (vi)characteristics of track. (3)Allocation of risk. (A)Cost overruns and underruns. Unless otherwise authorized by the commission and incorporated in a pass-through agreement by the department, the department's liability under a pass-through agreement shall be neither increased nor decreased by cost overruns or underruns. Pass-through fare payments by the department shall not be increased if there is a cost overrun or decreased if there is a cost underrun unless an adjustment is specifically authorized by the commission and incorporated in a pass-through agreement by the department. (B)Traffic volume. If traffic volume exceeds or falls below expectations, the pass-through fare will not be adjusted. Payments shall not exceed the maximum annual amount specified in the pass-through agreement and shall not be below the minimum annual amount specified in the pass-through agreement. The pass-through agreement shall provide that if required, payments shall continue until the total of all payments equals the total pass-through fare amount specified by the commission in approving the pass-through fare. (b)Pass-through tolls. (1)Level of pass-through tolls. (A)General. The commission shall establish the level of pass-through tolls or shall establish parameters within which the department may negotiate the level of pass-through tolls. In establishing the level of pass-through tolls or parameters within which the department may negotiate the level of pass-through tolls, the commission shall consider whether: (i)the project's estimated benefits to mobility warrant a pass-through toll at a level that is more or less than the department's estimate of project costs; (ii)the project will result in a significant economic gain or loss to the entity responsible for its development; (iii)the public or private entity proposes to share in the cost of the project; and (iv)the state or the public or private entity will benefit, and to what extent, if the project is built sooner than would be the case in the absence of a pass-through agreement. (B)Limits on pass-through toll levels. (i)The commission will not approve payment by the department of a level of pass-through tolls that exceeds the department's estimate, except as permitted by this subparagraph. The commission may approve the department's payment of a level of pass-through tolls that exceeds the department's current estimate, but only by the difference between the department's current estimate and the department's estimate for the time when the project would likely have been completed in the absence of a pass-through agreement. (ii)In determining the level of pass-through tolls, the commission will not consider any financing cost incurred by the public or private entity. [(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.] (2) [(b)] Payment schedule and method. (A) [(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 number and frequency of payments [contract period] to be negotiated between the department and the public or private entity [developer]. The payment schedule may include a maximum and a minimum annual amount to be paid periodically or in total. [Payments will be made in accordance with subsection (c)(2) of this section.] (B) [(2)] Variable payments. The pass-through toll [per vehicle fee] may vary on any basis that reasonably reflects the value of improvements, the nature of the highway, or benefits to other aspects of the highway system, including: [ within different levels of traffic volume and by type of vehicle using the facility.] (i)the number of vehicles using the highway; (ii)the number of vehicle-miles traveled on the highway; (iii)the condition of the highway; and (iv)whether the highway is tolled. (3) [(c)] Allocation of risk. (A)Cost overruns and underruns. Unless otherwise authorized by the commission and incorporated in a pass-through agreement by the department, the department's liability under a pass-through agreement shall be neither increased nor decreased by cost overruns or underruns. (i)Projects developed by the public or private entity. If the project is being developed by the public or private entity, the pass-through toll payments by the department shall not be increased if there is a cost overrun or decreased if there is a cost underrun unless an adjustment is specifically authorized by the commission and incorporated in a pass-through agreement by the department. (ii)Projects developed by the department. If the project is being developed by the department, the pass-through agreement shall provide that the pass-through toll or the maximum amount payable, or both, shall be adjusted to reflect the department's actual costs unless the commission specifically directs that the department shall bear the risk of cost overruns or underruns. (B)Traffic volume. If traffic volume exceeds or falls below expectations, the pass-through toll will not be adjusted. Payments shall not exceed the maximum annual amount specified in the pass-through agreement and shall not be below the minimum annual amount specified in the pass-through agreement. The pass-through agreement shall provide that if required, payments shall continue until the total of all payments equals the total pass-through toll amount specified by the commission in approving the pass-through toll. [(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.]
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on January 27, 2006
TRD-200600422 Richard D. Monroe
General Counsel
Texas Department of Transportation
Earliest possible date of adoption: March 12, 2006
For further information, please call: (512) 463-8683
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