SECTION 27.15. Project Development for Transferred Toll Projects

(a) Applicability. This section applies to:

(1) a toll project that was leased, sold, or transferred under §27.13 of this subchapter (relating to Transfer of Toll Projects) and that is located within the right of way of a state highway; and

(2) a toll project of another governmental entity that is located within the right of way of a state highway.

(b) State or federal funds. An entity's toll project that uses federal or state funds provided by the department must also comply with Chapter 27, Subchapter E of this title (relating to Financial Assistance for Toll Facilities).

(c) Environmental review and public involvement.

(1) When an entity proposes to develop a toll project that had been leased, sold, or transferred under §27.13 of this subchapter, the entity shall:

(A) conduct a study of the social and environmental impacts of the project in accordance with Chapter 2, Subchapter C of this title (relating to Environmental Review and Public Involvement for Transportation Projects);

(B) provide for public involvement by complying with §2.43(c) of this title (relating to Non Federal-Aid Transportation Projects); and

(C) develop the project in accordance with §2.50 of this title (relating to Financial Assistance for Toll Facilities and Pass-Through Toll Projects) if the entity requests federal-aid or federal-aid and state highway funds to assist with the project.

(2) Respective roles and responsibilities. The entity shall request that the department make a determination of the respective roles and responsibilities of the entity and the department under Chapter 2, Subchapter C, of this title. The entity shall comply with the department's directives. The directives will specify who will conduct the following work, either by the entity or by the department:

(A) preparation and completion of environmental studies;

(B) submission of appropriate environmental documentation for department review;

(C) preparation of any document revisions;

(D) submission of copies of the environmental studies and documentation adequate for distribution;

(E) preparation of legal and public notices for department review and use;

(F) arrangements for appropriate public involvement, including court reporters and accommodations, if requested, for persons with special communication or physical needs related to the public hearing;

(G) preparation of public meeting and hearing materials;

(H) preparation of any responses to comments;

(I) preparation of public meeting and public hearing summary and analysis, and the comment and response reports, and submission of a verbatim transcript of any public hearing and a signed certification that any hearing has been held in accordance with §2.43(c) of this title, the Civil Rights Act of 1964, and the Civil Rights Restoration Act of 1987; and

(J) submission of documentation showing that all EPIC have been or will be completed, including copies of permits or other approvals required prior to construction.

(d) Responsibility. The entity is fully responsible for the design and construction of each project it undertakes, including ensuring that all EPIC are addressed in project design and construction.

(e) Design criteria.

(1) State criteria. All designs developed by or on behalf of the entity shall comply with the latest version of the department's manuals, including, but not limited to, the Roadway Design Manual, Pavement Design Manual, Hydraulic Design Manual, the Texas Manual on Uniform Traffic Control Devices, Bridge Design Manual, and the Texas Accessibility Standards.

(2) Alternative criteria. An entity may request approval to use different accepted criteria for a particular item of work. Alternative criteria may include, but are not limited to, the latest version of the AASHTO Policy on Geometric Design of Highways and Streets, the AASHTO Pavement Design Guide, and the AASHTO Bridge Design Specifications. The use of alternative criteria is subject to the approval of the Federal Highway Administration for those projects involving federal funds. The executive director may approve the use of alternative criteria if the alternative criteria are determined to be sufficient to protect the safety of the traveling public and the integrity of the transportation system.

(3) Exceptions to design criteria. An entity may deviate from the state or alternative criteria for a particular design element, on a case by case basis, after determining that the particular criteria could not reasonably be met due to physical, environmental, or other relevant factors and that the proposed design is a prudent engineering solution. Documentation of the exceptions shall be retained by the entity and furnished to the department in accordance with subsection (h) of this section.

(f) Access. For proposed projects that will change the access control line to an interstate highway, the entity shall submit to the department all data necessary for the department to request Federal Highway Administration approval.

(g) Construction specifications.

(1) All plans, specifications, and estimates developed by or on behalf of the entity shall conform to the latest version of the department's Standard Specifications for Construction and Maintenance of Highways, Streets, and Bridges, and shall conform to department required special specifications and special provisions.

(2) The executive director may approve the use of an alternative specification if the proposed specification is determined to be sufficient to ensure the quality and durability of the finished product for the intended use and the safety of the traveling public.

(h) Design and construction review and approval.

(1) Applicability. This subsection applies to the segment of an entity's toll project that connects to the state highway system, including an overpass, underpass, intersection, or interchange.

(2) Exceptions to design criteria. An entity may request approval to deviate from the state or alternative criteria for a particular design element on a case by case basis. The request for approval shall state the criteria for which an exception is being requested and must include a comprehensive description of the circumstances and engineering analysis supporting the request. The executive director may approve an exception after determining that the particular criteria could not reasonably be met due to physical, environmental, or other relevant factors and that the proposed design is a prudent engineering solution.

(3) Preliminary plan review. When design of the connection is approximately 30% complete, the entity shall send the following preliminary design information to the department for review and approval in accordance with the procedures and timelines established in the project development agreement described in subsection (m) of this section:

(A) a design schematic depicting plan, profile, and superelevation information for each roadway;

(B) typical sections showing existing and proposed horizontal dimensions, cross slopes, location of profile grade line, pavement layer thickness and composition, earthen slopes, and right of way lines;

(C) bridge, retaining wall, and sound wall layouts, including, where applicable, an indication of structural capacity in terms of design loading;

(D) hydraulic studies and drainage area maps showing the drainage of waterways entering the project and local project drainage; and

(E) the location and text of proposed mainlane guide signs shown on a schematic that includes lane lines or arrows indicating the number of lanes.

(4) Final plan review. When final plans are complete, the entity shall send the following information to the executive director for review and approval in accordance with the procedures and timelines established in the project development agreement described in subsection (m) of this section:

(A) seven copies of the final set of plans, specifications, and engineer's estimate (PS&E) that have been signed and sealed by the responsible engineer; and

(B) revisions to the preliminary design submission previously approved by the department summarized or highlighted for the department.

(5) Contract bidding and award. The entity shall not advertise the project for receipt of bids until it has received approval of the PS&E from the department.

(6) Contract revisions.

(A) All contract revisions related to the connections to the department facility shall comply with the latest version of the applicable national or state administration criteria and manuals, and must be submitted to the department for its records. Major contract revisions must be submitted to the executive director for approval prior to beginning the revised construction work. Procedures governing the executive director's approval, including time limits for department review, shall be included in the project agreement described in subsection (m) of this section.

(B) For purposes of this subsection, "major contract revision" means a revision to a construction contract that:

(i) reduces geometric design or structural capacity below project design criteria;

(ii) changes the location or configuration of the physical connection to the department facility;

(iii) changes the placement of columns and other structural elements within the department's right of way;

(iv) changes the traffic control plan in a manner that reduces the capacity on the department facility as shown on the approved PS&E

(v) changes the access on a controlled access facility; or

(vi) for federally funded projects, eliminates or revises EPICs.

(i) As-built plans. Within six months after final acceptance of the construction project, the entity shall file with the department a set of the as-built plans incorporating any contract revisions. These plans shall be signed, sealed, and dated by a licensed professional engineer in Texas certifying that the project was constructed in accordance with the plans and specifications.

(j) Document and information exchange. If available, the entity agrees to deliver to the department all materials used in the development of the project including, but not limited to, aerial photography, computer files, surveying information, engineering reports, environmental documentation, general notes, specifications, and contract provision requirements.

(k) State and federal law. The entity shall comply with all federal and state laws and regulations applicable to the project and the state highway system, and shall provide or obtain all applicable permits, plans, and other documentation required by a federal or state entity.

(l) Work on state right of way. All work required within the limits of state-owned right of way shall be accomplished only pursuant to express written agreement with the department.

(m) Project development agreement. The entity and the department shall enter into an agreement governing the development of a project under this section. The agreement shall, at a minimum, include:

(1) the responsibilities of each party concerning the design and construction of the project and EPIC;

(2) procedures governing the submittal of information required by this section;

(3) timelines governing approvals by the executive director under this section; and

(4) other terms or conditions mutually agreed upon by the parties.

Source Note: The provisions of this §27.15 adopted to be effective effective January 5, 2006, 30 TexReg 9002