1. (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.

2. (b) Economically Disadvantaged Counties. In evaluating a proposal for a highway improvement project in a local government that consists of all or a portion of an economically disadvantaged county, the commission 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 evaluating a local government's effort and ability to meet the requirement.

   1. (1) Request for adjustment. The city council, county commissioners court, district board, or similar governing body of a local government that consists of 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:

      1. (A) the proposed project scope;
      2. (B) the estimated total project cost;
      3. (C) a breakdown of the anticipated total cost by category (e.g., right-of-way, utility adjustment, plan preparation, construction);
      4. (D) the proposed participation rate;
      5. (E) the nature of any in-kind resources to be provided by the local government;
      6. (F) the rationale for adjusting the minimum local matching funds requirement; and
      7. (G) any other information considered necessary to support a request.

   2. (2) Evaluation. In evaluating a request for an 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:

      1. (A) population level;
      2. (B) bonded indebtedness;
      3. (C) tax base;
      4. (D) tax rate;
      5. (E) extent of in-kind resources available; and
      6. (F) economic development sales tax.
3. (c) Participation ratios. The following Appendix A to this section establishes federal, state, and local cost participation ratios for highway improvement projects, subject to the availability of funds to the department.
   Attached Graphic
   

4. (d) Off state highway system bridge program.

   1. (1) Definitions. The following words and terms, when used in this subsection, shall have the following meanings, unless the context clearly indicates otherwise.

      1. (A) Bridge--For an equivalent-match project, a bridge or other mainlane cross-drainage structure.
      2. (B) Deficient bridge--A bridge having a condition or load capacity that is inadequate.
      3. (C) District engineer--The chief executive officer in each designated district office of the department.
      4. (D) Equivalent-match project--A project in which the local government will structurally improve off state system bridges utilizing 100% local funds.
      5. (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 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.
   2. (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, as described in paragraph (4) of this subsection, to spend an equivalent amount of funds for structural improvement work on another bridge or bridges on the equivalent-match project(s) within its jurisdiction. An equivalent amount includes, but is not limited to, expenditures for direct or indirect costs for structural improvement work on bridge(s) in the equivalent-match project(s).

   3. (3) Eligibility. A local government is eligible for a waiver if:

      1. (A) the construction contract for the participation-waived project has not been awarded;
      2. (B) work on the equivalent-match project has not begun prior to approval of the waiver;
      3. (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;
      4. (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 is located on a school bus route; and
      5. (E) the equivalent-match project increases the load capacity of the existing bridge or upgrades the bridge to its original capacity, with a minimum upgrade to safely carry school bus loading if located on a school bus route.
   4. (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 work proposed, estimated cost for the equivalent-match project(s), and a copy of the local governmental body's resolution. The resolution 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. (5) Considerations. In approving a request for waiver, the district engineer will consider:

      1. (A) the type of work proposed for the equivalent-match project(s);
      2. (B) regional transportation needs; and
      3. (C) past performance under this subsection.

   6. (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:

      1. (A) all costs of the work;
      2. (B) responsibility for complying with all applicable state and federal environmental regulations and permitting requirements; and
      3. (C) responsibility for the engineering and construction necessary for completion of the work.

   7. (7) Agreement and conditions.

      1. (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.
      2. (B) Local governments will be allowed three years after the contract award of the participation-waived project to complete structural improvements on the equivalent-match project(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.
      3. (C) 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.
      4. (D) The local government will be responsible for 100% of right of way and utilities for the participation-waived project.
      5. (E) 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.
      6. (F) The department will not reimburse funds already received by the department under the terms of existing agreements.

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.