AGENDA Hampton Roads Transportation Accountability
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Chair, LINDA T. JOHNSON • Vice-Chair, DONNIE R. TUCK Executive Director, KEVIN B. PAGE AGENDA Hampton Roads Transportation Accountability Commission Special Meeting* Meeting by Conference Call** August 18, 2020 10:00 a.m. Dial Toll Free Telephone Number to Attend: (855) 735-2639 *The Chair has called a Special Meeting of the Commission to be held on the date and at the time specified above to consider the matters stated in the below Agenda. **In light of the Governor’s Declared State of Emergency due to COVID-19, it is impracticable and unsafe for the Commission to assemble in a single location, so the meeting will be held electronically, by telephone, pursuant to the 2020 Appropriation Act; the purpose of the meeting is to discuss or transact the business statutorily required or necessary to continue operations of the Commission and the discharge of its lawful purposes, duties, and responsibilities. The public is welcome to use the number above to attend the meeting electronically. The Commission will make available a recording or transcript of the meeting on its website in accordance with the timeframes established in Sections 2.2-3707 and 2.2-3707.1 of the Code of Virginia. 1. Call to Order, Declaration re: Purpose of Meeting, and Roll Call 2. Approval of Agenda 3. Public Comment Period (3 Minute Limit)*** 4. Chair’s Comments 5. Action Items - Recommended Action: Discussion/Approval A. Master Agreement for Development and Tolling of Hampton Roads Express Lanes Network (a/k/a Master Tolling Agreement or the “MTA”), among the Hampton Roads Transportation Accountability Commission (“HRTAC” or the “Commission”), the Virginia Department of Transportation (“VDOT” or the “Department”), and the Commonwealth Transportation Board (the “CTB”) – Resolution Authorizing Finalization, Execution and Delivery - Recommended Action: Approval HRTAC • 723 Woodlake Drive • Chesapeake, Virginia 23320 • 757.413.9319 • www.hrtac.org 6. Information Items A. Next HRTAC Regular Meeting – September 17, 2020, 12:30 p.m., (Meeting by Conference Call unless the Governor lifts the State of Emergency) 7. Adjournment ***Anyone wishing to make a public comment should contact Executive Director Page at [email protected] 24 hours in advance of the meeting to register. Please do so by 10:00 a.m. on Monday, August 17, 2020. 2 Agenda Item 5A Action Item To: Chair Johnson and the other members of HRTAC From: Kevin B. Page, Executive Director Date: August 18, 2020 Re: Master Agreement for Development and Tolling of Hampton Roads Express Lanes Network (a/k/a Master Tolling Agreement or the “MTA”), among the Hampton Roads Transportation Accountability Commission (“HRTAC” or the “Commission”), the Virginia Department of Transportation (“VDOT” or the “Department”), and the Commonwealth Transportation Board (the “CTB”) – Reaffirmation of Approval – Resolution Authorizing Finalization, Execution and Delivery Recommendation: The MTA Advisory Committee Chair Johnson, Commission staff and its attorneys will provide a briefing on the terms of the Master Tolling Agreement (MTA) with recommendation for Commission approval of Resolution 2020-03. Background: At the Commission’s June 18th meeting, Commission staff and its advisors previewed the material open terms in the MTA, including the purview of the Toll Policy Committee and how to ensure that the committee would not impede the Commission’s ability to adopt or modify tolling policies. For several weeks thereafter, the negotiating teams for the Commonwealth and the Commission worked to develop an alternative approach and, on July 10th, reached a compromise – the Commission could select and modify the tolling policies, provided that such policies would be subject to a review process whereby the Commissioner of Highways (the “Commissioner”) is allowed an opportunity to review the polices and determine whether they would have a material adverse effect on safety or operations, each tested using specific, objective criteria (the “MAE Determination”). Under this approach, the Toll Policy Committee would be a non-binding, advisory committee. The teams then turned their efforts toward obtaining final approval of the negotiated MTA and, accordingly, the MTA was placed on the agenda for the July meetings of both the CTB and the Commission. The MTA was considered and approved by the Commission at its July 16th meeting, but, in the course of the CTB’s July 14th meeting, the MTA was pulled from the CTB agenda. When the Commission met, Commission staff understood from comments of the CTB Chair made at the CTB meeting that the MTA had been pulled from the CTB agenda in order to afford the CTB members additional time to review the proposed resolution (and the MTA), and that the CTB Chair would call a special meeting within days to approve it. However, the HRTAC Regular Meeting August 18, 2020 Agenda Action Item 5A │ │ VDOT team subsequently informed the Commission’s negotiating team that certain members of the CTB were seeking modifications to ensure that the CTB had a role with respect to reviewing the Commissioner’s action with respect to the MAE Determination and then directing him/her. On July 20th, the Office of the Attorney General conveyed draft language reflecting proposed modifications. In the interests of moving forward, the Commission’s negotiating team engaged in additional negotiations, but remained steadfast in its position that the modifications (to incorporate the CTB into the process) should not compromise HRTAC’s fundamental principles. Ultimately, the teams reached consensus on the language set forth in Sections 5.02 and 5.03 of the attached draft of the MTA. Attached hereto as Annex I is a summary that compares the principal terms relating to the MAE Determination process that were included in the July 16th draft (which the Commission approved) with those set forth in the draft that is now being presented for ratification. It is presently anticipated that when the Commission meets on August 18th, the MTA Advisory Committee will have reviewed and endorsed the attached draft of the MTA and the CTB will have adopted resolutions approving the MTA. The Commission’s July 16th resolutions granted the Chair and Executive Director plenary authority to finalize the MTA. However, in light of the Commission’s specific involvement in previously vetting these terms, we felt it was appropriate to brief the Commission further and ask the Commission to adopt Resolution 2020-03 attached hereto to reaffirm the Commission’s approval of the MTA. Fiscal Impact: The Hampton Roads Express Lane Network has a conceptual estimate cost of $939,672,593 to construct over time. Suggested Motion: Motion is to approve Resolution 2020-03; Master Agreement for Development and Tolling of Hampton Roads Express Lanes Network (a/k/a Master Tolling Agreement); Approval of and Authorization to Execute and Deliver Master Agreement for Development and Tolling of the Hampton Roads Express Lanes Network. HRTAC Regular Meeting August 18, 2020 Agenda Action Item 5A │ │ HRTAC 8/12/20 Reaffirmation of Approval of MTA Summary of Certain Material Changes (Sections 5.02 and 5.03) Subject MTA Version Approved by HRTAC MTA Version for Reaffirmed Approval at 7/16/20 Meeting by HRTAC at 8/18/20 Meeting 1. Party with Power to HRTAC Same Set Initial Tolling Policies or Make Modifications 2. Circumstances in Commissioner of VDOT may not Same which object (issue an “Exception Notice”) Commonwealth unless he/she reasonably demonstrates may Block that the proposed policies (or Implementation modifications) would have a Toll Policy Material Adverse Effect (defined based on specific, objective safety and operational/throughput criteria) (a “Toll Policy MAE”) 3. Setting/Modifying • Policies are presented by HRTAC • Same Tolling Policies1 to Commissioner • Commissioner has specific time • Same (overall time has been extended period to review proposed policies by about 45 days) and either: -- object based on the likelihood of a Toll Policy MAE and issue an “Exception Notice” or -- not object and issue a “No Exception Notice” • If Commissioner fails to act within • Same the specific time period, a No Exception Notice is deemed issued and the policies may be implemented • If Commissioner objects and issues • Same an Exception Notice, the Commissioner’s determination may be challenged in court (court would evaluate the Commissioner’s determination using a reasonableness standard of review) 1 Note: Modifications to tolling policies that are required to prevent or cure a breach of the Financing Covenants are handled differently; they may be implemented unilaterally without a No Exception Notice. That rule hasn’t changed since 7/16/20. I-1704765.5 Subject MTA Version Approved by HRTAC MTA Version for Reaffirmed Approval at 7/16/20 Meeting by HRTAC at 8/18/20 Meeting • No specific role of CTB, except • No Toll Policy Committee that modifications would be presented to a Toll Policy • Commissioner first presents Committee for a non-binding analysis and findings to CTB recommendation (50% of the members of that committee would If the Commissioner’s analysis be appointed by Secretary of and findings conclude no Toll Transportation) Policy MAE, the CTB shall direct the Commissioner to issue a No Exception Notice (however, time- permitting, the CTB may also request additional analysis) If the Commissioner’s analysis and findings conclude a Toll Policy MAE, the CTB may either (i) direct Commissioner to issue an Exception Notice, or (ii) direct Commissioner to issue a No Exception Notice if only