SECTION 58.6. Transcript Requirements

(a) Form of the Transcript of Proceedings. The transcript submitted to the OAG must conform to the following requirements unless such requirements are expressly negated under applicable law:

(1) each transcript shall be submitted in a loose-leaf binder or expanding file folder;

(2) transcript page size shall not exceed 8-1/2 by 11 inches, and each line of each page should be entirely legible (oversize documents, such as maps and charts, should be folded within the 8-1/2 by 11 inch requirement);

(3) all transcripts shall contain a table of contents keyed to right side tab numbers;

(4) each transcript shall be arranged in chronological order or in some other consistent, logical arrangement that will permit an efficient review and shall be labeled in a manner consistent with the table of contents; and

(5) the machine-readable/searchable electronic copy of the transcript of proceedings should be in the format of a single file containing all information and exhibits in the hard copy transcript presented in the order they appear in the hard copy, and should be provided on a CD or DVD clearly labeled with the name of the toll project entity, project name, and project location.

(b) Contents of Transcript. The transcript shall include the following, as applicable:

(1) the contact name(s), address(es), e-mail address(es), and phone number(s) for the appropriate representative(s) of the toll project entity to whom the legal sufficiency determination should be issued, and to whom all other inquiries, notifications, and correspondence regarding the proposed CDA should addressed;

(2) a written overview of the CDA that includes:

(A) a summary description of the project;

(B) identification of each entity that is a signatory to the CDA and to each ancillary agreement;

(C) citation to the applicable statutes and rules that establish the legal authority for each signatory to enter into the CDA and each ancillary agreement;

(D) a description of the procurement process used;

(E) a summary description of the CDA and its key terms;

(F) an overview of the method of finance for the CDA, including a summary description of each financial document included in the transcript of proceedings;

(G) a summary that includes any other information that may be material to the legal sufficiency determination;

(3) a list identifying the various approvals required as a condition precedent to the CDA and each ancillary agreement, including the sequence and record of dates when such approvals occurred or are expected to occur;

(4) citations to the applicable statutes, rules or other legal authority defining the procurement method and requirements for the CDA and each ancillary agreement;

(5) citations to the applicable statutes, rules or other legal authority requiring public notice, or public hearings as part of the procurement process, accompanied by documentation evidencing compliance with all such requirements;

(6) a machine-readable/searchable electronic copy of any Request for Qualifications (RFQ), Request for Detailed Proposals (RFDP), or other applicable document soliciting offers to contract for the CDA and ancillary agreements;

(7) citations to the applicable statutes, rules or other legal authority requiring public notice or public hearings required as a condition precedent to execution of the CDA and any ancillary agreements, accompanied by documentation evidencing compliance with all such requirements;

(8) a copy of the CDA;

(9) copies of any ancillary agreements to the CDA;

(10) evidence of signature authority for those executing documents on behalf of the toll project entity;

(11) to the extent that any funds are used with the project that were made available as the result of the American Recovery and Reinvestment Act of 2009 (Pub.L. 111-5), evidence of compliance with all applicable state and federal law, rules, and regulations related to the use of such funds;

(12) copies of all opinion(s) of counsel given in connection with the transaction, which may be drafts in substantially final form;

(13) the toll project entity's general certification of the following:

(A) certification of the toll project entity's authority to enter into the CDA and ancillary agreements;

(B) certification that documents submitted by the toll project entity constitute legal, valid, and binding obligations of the entity enforceable in accordance with their terms;

(C) certification that the terms of the transcript documents and the performance of toll project entity's obligations thereunder are not in conflict with and do not constitute a breach of or a default under the constitution or the laws of the United States or the State of Texas, or the terms and provisions of any instrument or restriction to which toll project entity is presently a party to or by which the toll project entity is presently subject;

(D) certification that the toll project entity has received all permits and approvals of any governmental authority, board, agency or commission having jurisdiction that are required to be obtained by the toll project entity prior to the execution, delivery and performance by toll project entity of the transcript documents;

(E) certification that the toll project entity has complied with all applicable publication and procurement requirements associated with the transcript documents, including but not limited to, any applicable requirements for the use of competitive procurement methods;

(F) certification that the toll project entity will retain ownership to the project under the terms of the transcript documents as required by law, and providing citation to the applicable provision(s) of the Texas Transportation Code;

(G) certification that the transcript documents are being entered into and the underlying project is being undertaken in compliance with applicable provision(s) of the Texas Transportation Code, providing citations and including an explanation of why the CDA is authorized under any applicable statutory moratorium;

(H) certification that there is no action, suit, hearing, proceeding, inquiry, investigation or litigation of any nature, at law or in equity, before or by any court, public board, agency or body, pending or threatened against or affecting the toll project entity (or to the best of the authorized signatory's knowledge any basis therefore) wherein an unfavorable decision, ruling or finding would, in any way, materially adversely affect:

(i) the creation, organization, existence or powers of the toll project entity or the title or authority of the officers and commissioners of the toll project entity;

(ii) the transactions contemplated by the transcript documents; or

(iii) the validity or enforceability of the transcript documents;

(I) certification that the authorization, approval and execution of the transcript documents, and all other proceedings of the toll project entity relating to the transcript documents, have been performed in accordance with all applicable open meetings laws and all other applicable laws, rules and regulations of the State of Texas;

(J) the identification of the duly appointed and qualified incumbents of the offices of the toll project entity and certification that the persons named were, on the date or dates of all actions taken in connection with the execution of the transcript documents and any related documents, the duly appointed and qualified incumbents of the offices of the toll project entity;

(K) certification that as of the date of the certificate, the transcript documents are substantially in the form approved by the governing body of toll project entity; and

(L) certification to the Attorney General of the State of Texas that, as of the date of the general certificate, and as of the date of his completion of the legal sufficiency review and all other matters certified therein, the contents of the transcript of proceedings shall be deemed for all purposes to be true, accurate and correct on and as of that date, and as of the delivery date of the transcript of proceedings.

(c) If the toll project entity cannot provide the required certifications as of the date of the general certificate, or as of completion of the legal sufficiency review, then toll project entity, through an officer, shall promptly provide written explanation to the OAG.

(d) The OAG may require a toll project entity to timely provide such other information as may be deemed necessary by the OAG, in its sole discretion, to support a determination that a comprehensive development agreement is legally sufficient for the purposes of Texas Transportation Code §371.051.

(e) Toll project entities anticipating the OAG's review of a CDA that may contain novel or uncommon characteristics or transactions that could be likely to require variance from these requirements are required to contact the OAG to discuss the possible variances prior to submission of the transcript of proceedings.

(f) The transcript requirements described by this section may be waived or modified by the OAG, in its sole discretion, to the extent the OAG is satisfied that the OAG can issue an appropriate legal sufficiency determination.

(g) The transcript of proceedings and other information submitted to the OAG by a toll project entity are subject to the Texas Public Information Act, Chapter 552 of the Texas Government Code ("the Act"). All transcripts and other information shall be presumed to be subject to disclosure unless a specific exception to disclosure under the Act applies. If it is necessary for a toll project entity to include proprietary or otherwise confidential information in its submission, that particular information should be clearly identified and reference shall be made to the specific exception to disclosure in the Act. A blanket claim that the entire transcript is protected from disclosure because it may contain some proprietary information is not acceptable, and will not render the entire transcript confidential. Any information, which is not clearly identified as proprietary or confidential shall be deemed to be subject to disclosure pursuant to the Act.

Source Note: The provisions of this §58.6 adopted to be effective October 25, 2011, 36 TexReg 7155