January 26, 2006 438

These are the minutes of the regular meeting of the Texas Transportation Commission, which was held on January 26, 2006, in Conroe, Texas. The meeting opened at 9:14 a.m. with the following commissioners present:

Texas Transportation Commission: Ric Williamson Chair John Johnson Commissioner Hope Andrade Commissioner Ted Houghton, Jr. Commissioner

Administrative Staff: Michael W. Behrens, Executive Director Steve Simmons, Deputy Executive Director Richard Monroe, General Counsel Roger Polson, Executive Assistant to the Deputy Executive Director

Registration sheets listing others in attendance are on file with the Texas Department of Transportation Chief Minute Clerk.

A public notice of this meeting containing all items on the proposed agenda was filed in the Office of the Secretary of State at 2:40 p.m. on January 18, 2006, as required by Chapter 551, of the Government Code, referred to as “The Open Meetings Act.”

Receive comments from area public officials, community and civic leaders, and private citizens. Report by the Houston District.

The commission received comments from Senator Todd Staples; Houston District Engineer Gary Trietsch; Montgomery County Judge Alan Sadler; and Conroe Mayor Tommy Metcalf.

ITEM 1. Approval of Minutes of the December 15, 2005, regular meeting of the Texas Transportation Commission

Commissioner Johnson made a motion, seconded by Commissioner Houghton, and the commission approved the minutes of the December 15, 2005, regular meeting of the Texas Transportation Commission.

ITEM 2. AVIATION Various Counties – Approve funding for airport improvement projects at various locations

Commissioner Houghton made a motion, seconded by Commissioner Johnson and the commission approved the following minute order presented by Aviation Division Director David Fulton: January 26, 2006 439

110376 The Texas Department of Transportation (department) is authorized under AVN Transportation Code, Chapter 21 and Chapter 22, to assist in the development and establishment of airports in the State of Texas. The airports listed in Exhibit A are currently in need of improvements to preserve the airports or to meet standards. Due to the interest on the part of the airport sponsors, the department recommends that the improvements be funded. On Wednesday, December 14, 2005, a public hearing was held and no comments were received. IT IS THEREFORE ORDERED by the Texas Transportation Commission that the executive director, or the director’s designee, is authorized to enter into any necessary agreements to fund, through the Aviation Facilities Grant Program, the projects described in Exhibit A at an estimated cost of $7,099,359. Note: Exhibit A on file with minute order clerk.

ITEM 3. PUBLIC TRANSPORTATION a. Award FY 2006 Federal §5310, Elderly and Persons with Disabilities Program, funds to transportation operators serving the elderly and persons with disabilities

The commission received comments from Texas Transit Association Executive Director Ben Herr in favor of all 3 public transportation items.

Commissioner Andrade made a motion, seconded by Commissioner Johnson and the commission approved the following minute order presented by Public Transportation Division Director Eric Gleason:

110377 The Texas Transportation Commission (commission) takes special note of its PTN designation by the governor as the administering agency for the Federal Transit Administration (FTA) grant program, Formula Grants and Loans for Special Needs of Elderly Individuals and Individuals with Disabilities (49 U.S.C. §5310), in a letter dated June 13, 2002; and further acknowledges that federal program regulations require the Texas Department of Transportation (department) to ensure that grant funds are distributed fairly and equitably within the state. Title 43, Texas Administrative Code, §31.31(g) establishes a formula by which §5310 program funds shall be distributed. Projects in Exhibit A will be matched with local funds. On August 10, 2005, President George W. Bush signed the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). SAFETEA-LU authorizes the federal surface transportation programs for highways, highway safety, and transit for the 5-year period 2005-2009. On November 30, 2005, President George W. Bush signed the federal appropriations act into law that provides funding for all surface transportation programs of the U.S. Department of Transportation, through September 30, 2006. January 26, 2006 440

The distribution of the FY 2006 allocation, including unobligated funds from previous grants, is shown in Exhibit A and has been calculated in accordance with the provisions of §31.31(g). The apportionments and allocations published are subject to a one percent rescission in the FY 2006 Defense Appropriations Act. FTA will publish a revised notice to implement any rescission. Should the rescission affect the FY 2006 apportionment, the allocations will be adjusted on a pro rata district level based on the formula in 43 TAC §31.31(g). Districts will then adjust transit agency allocations in accordance with the priorities established in the Section 5310 district program of projects. Transportation Code, Chapter 455 assigns a broad spectrum of public transportation roles and missions to the department. Transportation Code, Chapter 456 authorizes the commission to administer funds appropriated for public transportation. IT IS THEREFORE ORDERED by the commission that the executive director or the director’s designee is directed to proceed with the allocations as described in Exhibit A, submit the necessary application to FTA and enter into the necessary contracts for the FY 2006 program of projects. IT IS FURTHER ORDERED that the executive director or the director’s designee is directed to issue contracts in accordance with the priorities established in this minute order. Note: Exhibit A on file with minute order clerk.

b. Award FY 2006 Federal §5311, Nonurbanized Area Formula Program, funds to rural transportation operators providing rural public transportation

Commissioner Houghton made a motion, seconded by Commissioner Andrade and the commission approved the following minute order presented by Public Transportation Division Director Eric Gleason:

110378 The Texas Transportation Commission (commission) takes special note of its PTN designation by the governor as the administering agency for the Federal Transit Administration (FTA) grant program, “Formula Grant Program for Areas Other than Urbanized” (49 U.S.C. §5311), in a letter dated June 13, 2002; and further acknowledges that federal program regulations require the Texas Department of Transportation (department) to ensure that these grant funds are distributed fairly and equitably within the state. Title 43, Texas Administrative Code (TAC), §31.36(g) establishes a formula by which §5311 program funds shall be distributed to the nonurbanized areas of the state. On August 10, 2005, President George W. Bush signed the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). SAFETEA- LU authorizes the federal surface transportation programs for highways, highway safety, and transit for the 5-year period 2005-2009. On November 30, 2005, President George W. Bush signed the federal appropriations act into law that provides funding for all surface transportation programs of the U.S. Department of Transportation, through September 30, 2006. January 26, 2006 441

The distribution of the FY 2006 allocation, including unobligated funds from previous grants, is shown in Exhibit A and has been calculated in accordance with the provisions of §31.36(g). The apportionments and allocations published are subject to a one percent rescission in the FY 2006 Defense Appropriations Act. FTA will publish a revised notice to implement any rescission. Should the rescission affect the FY 2006 apportionment, the Commission Discretionary Funds allocation shown in Exhibit A will be adjusted in accordance with the formula in 43 TAC §31.36(g) (3). Transportation Code, Chapter 455 assigns a broad spectrum of public transportation roles and missions to the department. Transportation Code, Chapter 456 authorizes the commission to administer funds appropriated for public transportation. IT IS THEREFORE ORDERED by the commission that the executive director or the director’s designee is directed to proceed with the allocations as described in Exhibit A, submit the necessary application to FTA and enter into the necessary contracts for the FY 2006 program of projects. IT IS FURTHER ORDERED by the commission that the executive director or the director’s designee is directed to issue contracts in accordance with the priorities established in this minute order. Note: Exhibit A on file with minute order clerk.

c. Award federal funds to urban and rural transportation operators for the replacement of public transportation vehicles

Commissioner Johnson made a motion, seconded by Commissioner Andrade and the commission approved the following minute order presented by Public Transportation Division Director Eric Gleason:

110379 The Texas Transportation Commission (commission) approved Minute Order PTN 108412, which authorized flexible federal funding of $5 million annually for fiscal years 2001-2004 ($20 million) to purchase replacement vehicles for small urban and rural transit systems. The Texas Department of Transportation (department) retains designated recipient status in administering any grants that may result from the transfer of flexible funding contained within this minute order. Project savings realized under the awards financed with the flexible funding above have resulted in $643,590 in unobligated funds. The commission desires to award $643,590 to the transit agencies listed in Exhibit A. Should further funds become available in this program as a result of project savings or deobligations, these funds may be made available to the transit agencies also listed on the respective contingency lists identified in Exhibit A. Transportation Code, Chapter 455 assigns a broad spectrum of public transportation roles and missions to the department. Transportation Code, Chapter 456 authorizes the commission to administer funds appropriated for public transportation. January 26, 2006 442

IT IS THEREFORE ORDERED by the commission that the executive director or the director’s designee is directed to proceed with the allocations as described in Exhibit A, submit the necessary state application amendments to the Federal Transit Administration and enter into the necessary contracts in accordance with the priorities established in this minute order. Note: Exhibit A on file with minute order clerk.

ITEM 4. DISCUSSION ITEM State and federal legislative priorities

This item was presented by Director of the Government Business Enterprises Division Coby Chase, and Chief Financial Officer James Bass.

ITEM 5. Promulgation of Administrative Rules a. Proposed Adoption Under Title 43, Texas Administrative Code, and the Administrative Procedure Act, Government Code, Chapter 2001: (to be published in the Texas Register for public comment) (1) Chapter 5 – Finance Amendments to §§5.51-5.59 (Pass-Through Tolls) (relating to pass-through tolls for highway facilities and pass-through fares for rail facilities)

Commissioner Houghton made a motion, seconded by Commissioner Johnson and the commission approved the following minute order presented by Finance Division Director James Bass:

110380 The Texas Transportation Commission (commission) finds it necessary to FIN propose amendments to §§5.51-5.59, relating to pass through fares and tolls, to be codified under Title 43, Texas Administrative Code, Part 1. The preamble and the proposed amendments, attached to this minute order as Exhibits A and B, are incorporated by reference as though set forth at length verbatim in this minute order. IT IS THEREFORE ORDERED by the commission that the amendments to §§5.51-5.59 are proposed for adoption and are authorized for publication in the Texas Register for the purpose of receiving public comments. The executive director is directed to take the necessary steps to implement the actions as ordered in this minute order, pursuant to the requirements of the Administrative Procedure Act, Government Code, Chapter 2001. Note: Exhibits A and B on file with minute order clerk.

(3) Chapter 21 – Right of Way New §21.23, State Participation in Toll-Related Relocations (Utility Adjustment, Relocation, or Removal) January 26, 2006 443

Commissioner Houghton made a motion, seconded by Commissioner Johnson and the commission approved the following minute order presented by Right of Way Division Director John Campbell:

110381 The Texas Transportation Commission (commission) finds it necessary to ROW propose new §21.23, relating to state participation in toll-related relocations, to be codified under Title 43, Texas Administrative Code, Part 1. The preamble and the proposed new section, attached to this minute order as Exhibits A and B, are incorporated by reference as though set forth at length verbatim in this minute order. IT IS THEREFORE ORDERED by the commission that the new §21.23 is proposed for adoption and is authorized for publication in the Texas Register for the purpose of receiving public comments. The executive director is directed to take the necessary steps to implement the actions as ordered in this minute order, pursuant to the requirements of the Administrative Procedure Act, Government Code, Chapter 2001. Note: Exhibits A and B on file with minute order clerk.

b. Final Adoption (1) Chapter 17 – Vehicle Titles and Registration Amendments to §§17.2 - 17.3, concerning Motor Vehicle Certificates of Title, §§17.21 – 17.24, §17.28, §17.30, §17.33, and §17.36, concerning Motor Vehicle Registration, §17.54, concerning Automated Equipment (Registration and Title System), §17.61, §17.62, §17.65, and §17.68, concerning Nonrepairable and Salvage Motor Vehicles, and §17.72, §17.73 and §17.79, concerning Salvage Vehicle Dealers

Commissioner Houghton made a motion, seconded by Commissioner Johnson and the commission approved the following minute order presented by Vehicle Titles and Registration Division Director Rebecca Davio:

110382 The Texas Transportation Commission (commission) finds it necessary to adopt VTR amendments to §17.2 and §17.3, §§17.21 – 17.24, §17.28, §17.30, §17.33, §17.36, §17.54, §17.61, §17.62, §17.65, §17.68, §17.72, §17.73 and §17.79, relating to vehicle titles and registration, to be codified under Title 43, Texas Administrative Code, Part 1. The preamble and the adopted amendments, attached to this minute order as Exhibits A - F, are incorporated by reference as though set forth at length verbatim in this minute order. IT IS THEREFORE ORDERED by the commission that the amendments to §17.2 and §17.3, §§17.21 – 17.24, §17.28, §17.30, §17.33, §17.36, §17.54, §17.61, §17.62, §17.65, §17.68, §17.72, §17.73 and §17.79 are adopted and are authorized for filing with the Office of the Secretary of State. January 26, 2006 444

The executive director is directed to take the necessary steps to implement the actions as ordered in this minute order, pursuant to the requirements of the Administrative Procedure Act, Government Code, Chapter 2001. Note: Exhibits A through F on file with minute order clerk.

a. Proposed Adoption Under Title 43, Texas Administrative Code, and the Administrative Procedure Act, Government Code, Chapter 2001: (to be published in the Texas Register for public comment) (2) Chapter 17 – Vehicle Title and Registration Amendments to §17.28, Specialty License Plates, Symbols, Tabs, and Other Devices (Motor Vehicle Registration)

This item was deferred.

b. Final Adoption (2) Chapter 21 – Right of Way New Subchapter N, Rail Facilities, New §21.801, Acquisition of Real Property, and New §21.802, Disposal of Real Property (relating to rail facilities)

Commissioner Houghton made a motion, seconded by Commissioner Johnson and the commission approved the following minute order presented by Right of Way Division Director John Campbell:

110383 The Texas Transportation Commission (commission) finds it necessary to adopt ROW new §21.801 and §21.802, relating to acquisition and disposal of real property for rail facilities, to be codified under Title 43, Texas Administrative Code, Part 1. The preamble and the adopted new sections, attached to this minute order as Exhibits A and B, are incorporated by reference as though set forth at length verbatim in this minute order. IT IS THEREFORE ORDERED by the commission that new §21.801 and §21.802 are adopted and are authorized for filing with the Office of the Secretary of State. The executive director is directed to take the necessary steps to implement the actions as ordered in this minute order, pursuant to the requirements of the Administrative Procedure Act, Government Code, Chapter 2001. Note: Exhibits A and B on file with minute order clerk.

(3) Chapter 23 – Travel Information New §23.13, Links to Community Web Sites from Rest Areas and Travel Information Centers (Travel Information)

Commissioner Houghton made a motion, seconded by Commissioner Andrade and the commission approved the following minute order presented by Assistant Executive Director Support Operations Ed Serna. January 26, 2006 445

110384 The Texas Transportation Commission (commission) finds it necessary to adopt TRV new §23.13, relating to links to community web sites from rest areas and travel information centers, to be codified under Title 43, Texas Administrative Code, Part 1. The preamble and the adopted new section, attached to this minute order as Exhibits A and B, are incorporated by reference as though set forth at length verbatim in this minute order. IT IS THEREFORE ORDERED by the commission that new §23.13 is adopted and is authorized for filing with the Office of the Secretary of State. The executive director is directed to take the necessary steps to implement the actions as ordered in this minute order, pursuant to the requirements of the Administrative Procedure Act, Government Code, Chapter 2001. Note: Exhibits A and B on file with minute order clerk.

(4) Chapter 28 – Oversize and Overweight Vehicles and Loads Amendments to §28.11, General Oversize and Overweight Permit Requirements and Procedures, §28.14, Manufactured Housing, and Industrialized Housing and Building Permits, §28.15, Portable Building Unit Permits (General Permits) (concerning highway crossings by oversize and overweight vehicles and loads), and §28.92, Permit Issuance Requirements and Procedures (Port of Brownsville Port Authority Permits), New Subchapter H, Chambers County Permits, New §§28.100 - 28.102

Commissioner Johnson made a motion, seconded by Commissioner Houghton and the commission approved the following minute order presented by Motor Carrier Division Director Carol Davis.

110385 The Texas Transportation Commission (commission) finds it necessary to adopt MCD amendments to §28.11, §28.14, §28.15, and §28.92, and new §§28.100 – 28.102, relating to oversize and overweight vehicles and loads, to be codified under Title 43, Texas Administrative Code, Part 1. The preamble and the adopted amendments and new sections, attached to this minute order as Exhibits A - D, are incorporated by reference as though set forth at length verbatim in this minute order. IT IS THEREFORE ORDERED by the commission that the amendments and new sections are adopted and are authorized for filing with the Office of the Secretary of State. The executive director is directed to take the necessary steps to implement the actions as ordered in this minute order, pursuant to the requirements of the Administrative Procedure Act, Government Code, Chapter 2001. Note: Exhibits A through D on file with minute order clerk. January 26, 2006 446

(5) Chapter 29 – Maintenance Repeal of §29.48 and New §29.48, concerning Boarding Priorities (for Galveston/Port Bolivar and Port Aransas Ferries)

The commission received comments from Darlene Leal, citizen of Bolivar; Port Aransas City Manager Michael Kovacs; Sam Poteet, Jr., Port Aransas Chamber of Commerce; and Port Aransas Mayor Georgia Neblett.

This item was deferred.

c. Final Adoption Under Title 16, and Title 43, Texas Administrative Code and the Administrative Procedure Act, Government Code 2001: Title 16, Part 6, Chapter 101 – Practice and Procedure; Chapter 103 – General Rules; Chapter 105 – Advertising Rules; Chapter 107 – Warranty Performance Obligations; Chapter 109 – Lessors and Lease Facilitators; and Chapter 111 – General Distinguishing Numbers and Title 43, New Chapter 8, Distribution of Motor Vehicles • Title 16, Part 6, Repeal of Chapter 101 - Practice and Procedure; Chapter 103 - General Rules; Chapter 105 - Advertising Rules; Chapter 107 - Warranty Performance Obligations; Chapter 109 - Lessors and Lease Facilitators; and Chapter 111 - General Distinguishing Numbers; and • Title 43, New Chapter 8 - Subchapter A, General Provisions; Subchapter B, Adjudicative Practice and Procedure; Subchapter C, Licenses, Generally; Subchapter D, Franchised Dealers, Manufacturers, Distributors, Converters and Representatives; Subchapter E, General Distinguishing Numbers; Subchapter F, Lessors and Lease Facilitators; Subchapter G, Warranty Performance Obligations; Subchapter H, Advertising

Commissioner Johnson made a motion, seconded by Commissioner Houghton and the commission approved the following minute order presented by Motor Vehicle Division Director Brett Bray.

110386 The Texas Transportation Commission (commission) finds it necessary to adopt MVD the repeal of Title 16, Part 6, Chapter 101, Practice and Procedure; Chapter 103, General Rules; Chapter 105, Advertising Rules; Chapter 107, Warranty Performance Obligations; Chapter 109, Lessors and Lease Facilitators; and Chapter 111, General Distinguishing Numbers. The commission further finds it necessary to adopt new Chapter 8, relating to motor vehicle distribution, including Subchapter A, General Provisions, §§8.1-8.6; Subchapter B, Adjudicative Practice and Procedure, §§8.21-8.58; Subchapter C, Licenses, Generally, §§8.81-8.86; Subchapter D, Franchised Dealers, Manufacturers, Distributors, and Converters and Representatives, §§8.101-8.114; Subchapter E, General January 26, 2006 447

Distinguishing Numbers, §§8.131-8.148; Subchapter F, Lessors and Lease Facilitators, §§8.171-8.181; Subchapter G, Warranty Performance Obligations, §§8.201-8.210; and Subchapter H, Advertising, §§8.241-8.271, to be codified under Title 43, Texas Administrative Code, Part 1. The preambles and the adopted repeals and new sections, attached to this minute order as Exhibits A - N, are incorporated by reference as though set forth at length verbatim in this minute order. IT IS THEREFORE ORDERED by the commission that the repeals and new sections are adopted and are authorized for filing with the Office of the Secretary of State. The executive director is directed to take the necessary steps to implement the actions as ordered in this minute order, pursuant to the requirements of the Administrative Procedure Act, Government Code, Chapter 2001. Note: Exhibits A through N on file with minute order clerk.

The commission received comments from Standard Auto Sales Owner Bill Etzel; Texas Department of Public Safety Sergeant Henry Brune; and Gerald James, Jr., Independent Auto Dealers Houston Area.

ITEM 7. TOLL ROAD PROJECTS a. Smith County – Designate tolled mainlanes on Loop 49 from I-20 south and east to SH 110 as a toll project on the state highway system, and as a controlled-access facility for the purpose of development, maintenance and operation

Commissioner Johnson made a motion, seconded by Commissioner Houghton and the commission approved the following minute order presented by Turnpike Authority Division Director Phillip Russell:

110387 In SMITH COUNTY, LOOP 49, from I-20 south and east to SH 110, is currently TTA planned as a four-lane divided highway to be on the state highway system. The Texas Department of Transportation (TxDOT) is currently constructing approximately seven miles of LP 49 from SH 155 to FM 756 as a two-lane facility. The ultimate cross-section will consist of a proposed controlled-access facility with four tolled mainlanes and nontolled discontinuous frontage roads at locations needed to restore access or unlandlock right of way parcels as determined by the planning process. Transportation Code, §228.051 provides that the Texas Transportation Commission (commission), by order, may designate one or more lanes of a segment of the state highway system as a toll project or system. Transportation Code, §203.003 authorizes the commission to lay out, construct, maintain, and operate a designated state highway, with control of access as necessary to facilitate the flow of traffic and promote the public safety and welfare. The Tyler Metropolitan Planning Organization has included LP 49 as a proposed toll facility in the Metropolitan Transportation Plan adopted December 2004. January 26, 2006 448

IT IS THEREFORE ORDERED by the commission that the mainlanes on LP 49 from I-20 south and east to SH 110 are designated as a toll project on the state highway system. IT IS FURTHER ORDERED that LP 49 from I-20 south and east to SH 110 is designated as a controlled access facility for the purpose of development, maintenance and operation.

b. Smith and Gregg Counties – Consider final approval of a request for financing from the Northeast Texas Regional Mobility Authority to pay costs associated with the further study and development of the Loop 49 project in Smith County, including the costs of certain design and engineering services and legal and financial advisory services

The commission received comments from Northeast Texas Regional Mobility Authority Chairman Jeff Austin, III; and Harrison County Judge Wayne McWhorter.

Commissioner Houghton made a motion, seconded by Commissioner Johnson and the commission approved the following minute order presented by Turnpike Authority Division Director Phillip Russell:

110388 In Minute Order 109829, dated October 28, 2004, the Texas Transportation TTA Commission (commission) authorized the creation of the Northeast Texas Regional Mobility Authority (authority), with the boundaries of the authority to be the entire geographic areas of Smith and Gregg counties. Minute Order 109829 further provided that the initial potential candidate project that may be developed, maintained, and operated by the authority would be the continuation and completion of the proposed Loop 49 project in Smith County as a four- lane divided facility, including an eastern corridor to extend into Gregg County. The Texas Department of Transportation (department) is currently constructing Segments 1 and 2 of the Loop 49 project from SH 155 east to FM 756 as a two-lane facility. Transportation Code, §370.301 authorizes the department to provide for, or contribute to, the payment of costs of the design, financing, construction, operation, or maintenance of a toll road project by a regional mobility authority (RMA) on terms Deleted: turnpike agreed to by the department and the RMA. Transportation Code, §222.103 authorizes the department to participate, by spending money from any available source, in the acquisition, construction, maintenance, or operation of a toll facility of a public or private entity on terms and conditions established by the commission. Pursuant to Transportation Code, §222.103, the commission adopted Title 43, Texas Administrative Code, §27.50-27.58 (toll equity rules) to prescribe conditions for the commission’s financing of a toll facility of a public or private entity. In accordance with §27.53 and 27.54(a) of the toll equity rules, the commission, Deleted: Sections in Minute Order 110300, granted preliminary approval of financial assistance in the amount of up to $12.25 million, in the form of a loan, to be used to further study and January 26, 2006 449

develop four segments of the proposed Loop 49 project in Smith County, including the costs of certain design and engineering services necessary for project development, traffic and revenue studies as needed, and legal and financial advisory services. The four segments that are included in the request for financing involve the proposed expansion of Segments 1 and 2 to a four-lane facility, and the development of Segment 3 from I-20 to SH 155, and Segment 5 from FM 756 to SH 110. In accordance with §27.54 of the toll equity rules, the executive director has Deleted: Section negotiated a financial assistance agreement with the authority that complies with the requirements of §27.55 of those rules, including provisions for the repayment of the Deleted: Section financial assistance from toll revenue generated from the project or revenue obtained by the authority under a comprehensive development agreement, or from the proceeds of bonds issued by the authority secured by revenues of the project. The negotiated terms also provide that a default on this loan will result in an obligation of the authority to transfer all work product related to the project to the department. The authority has complied with all other applicable requirements of §27.54. Deleted: Section As the financial assistance will be used to pay for the development of a needed project that will serve to relieve congestion in the city of Tyler, provide an alternate route Deleted: C for through traffic in and around the Smith County area, and improve safety and mobility, Deleted: and and as the executive director has negotiated provisions relating to the disbursement and Deleted: thereby repayment of the financial assistance, the commission has determined that providing Deleted: ing financial assistance will prudently provide for the protection of public funds. As the department previously conducted or will conduct the necessary environmental studies and analyses of the proposed project, and the authority has committed to comply with all applicable environmental laws and to assume responsibility for identifying and securing all federal and state environmental permits and commitments necessary for the development of its projects, the commission has determined that the project will provide for all reasonable and feasible measures to avoid, minimize, or mitigate adverse environmental impacts. NOW, THEREFORE, IT IS DETERMINED that the request for financial assistance submitted by the Northeast Texas Regional Mobility Authority meets the requirements of 43 TAC §27.54(c) and, in accordance with that provision, the commission grants final approval of the request for financing in the amount of up to $12.25 million, in the form of a loan, and authorizes and directs the executive director to enter into a financial assistance agreement with the Northeast Texas Regional Mobility Authority.

c. Travis and Williamson Counties – Accept the General Engineering Consultant quarterly progress report as of November 30, 2005 for the Central Texas Turnpike System

The commission received comments from Central Texas Regional Mobility Authority Director Mike Heiligenstein. January 26, 2006 450

Commissioner Johnson made a motion, seconded by Commissioner Houghton and the commission approved the following minute order presented by Turnpike Authority Division Director Phillip Russell:

110389 In TRAVIS and WILLIAMSON COUNTIES, STATE HIGHWAY 130 has been TTA designated a toll project and a controlled access state highway from Interstate 35 north of Georgetown to a southern terminus at US 183. In TRAVIS and WILLIAMSON COUNTIES, STATE HIGHWAY 45N has been designated a toll project and a controlled access state highway from west of US 183 to SH 130. In TRAVIS and WILLIAMSON COUNTIES, STATE HIGHWAY LOOP 1 has been designated a toll project and a controlled access state highway from the intersection of existing Loop 1 and FM 734 (Parmer Lane) in Austin to the intersection of Loop 1 and SH 45N. The Texas Transportation Commission (commission) has issued toll revenue bonds and other obligations to finance a portion of the costs of the 2002 Project of the Central Texas Turnpike System, a toll project composed of the SH 130, SH 45N, and Loop 1 project elements, and has entered into an Indenture of Trust dated July 15, 2002 with Bank One, National Association, as Trustee to secure the revenue bonds and other obligations issued for the 2002 Project. In Section 406 of the Indenture of Trust, the commission covenants that at least quarterly during the construction of the 2002 Project it will cause the general engineering consultant to prepare a progress report in connection with such construction, including current projections with respect to the date the 2002 Project will be open to traffic, the date on which construction will be completed, the cost of the 2002 Project, and the amount of funds required each six months during the remaining estimated period of construction to pay the costs of the 2002 Project. Section 406 of the Indenture of Trust requires copies of the quarterly progress report to be filed with the commission, the U.S. Department of Transportation, and the Trustee, and to be made available by the Trustee to owners of obligations issued for the 2002 Project. The commission has previously engaged PBS&J to serve as general engineering consultant in accordance with the Indenture of Trust. A quarterly progress report for the period ending November 2005, attached as Exhibit A, has been prepared by PBS&J in accordance with Section 406 of the Indenture of Trust. IT IS THEREFORE ORDERED by the commission that the general engineering consultant’s quarterly progress report attached as Exhibit A is accepted. Note: Exhibit A on file with minute order clerk. January 26, 2006 451

ITEM 9. PASS-THROUGH TOLLS a. Authority to Negotiate Agreement Hays County - Authorize the executive director to negotiate a pass-through toll agreement with Hays County for improvements to various highway projects in the county

Commissioner Houghton made a motion, seconded by Commissioner Andrade and the commission approved the following minute order presented by Assistant Executive Director Engineering Operations Amadeo Saenz:

110390 On December 20, 2005, Hays County (county) submitted a revised proposal for a FIN pass-through toll agreement. The proposal provided for the county to construct improvements to FM 110 (San Marcos Loop) from McCarty Road/I-35 to Yarrington Road, SH 21 south of FM 1966 to FM 2720, RM 12 from San Marcos city limits to RM 32, SH 21 from FM 2720 to Hays-Travis county line, and extending FM 1626 from Bliss Spillar Road to FM 967 and from Bliss Spillar Road to FM 2770. Section 222.104(b), Transportation Code, authorizes the Texas Department of Transportation (department) to enter into an agreement with a public or private entity that provides for the payment of pass-through tolls to the public or private entity as reimbursement for the construction, maintenance, or operation of a toll or non-toll facility on the state highway system by the public or private entity. A pass-through toll is a per vehicle fee or a per vehicle-mile fee that is determined by the number of vehicles using a facility. The Texas Transportation Commission (commission) previously adopted rules, codified as 43 TAC §§5.51-5.59, that prescribe the policies and procedures governing the department's implementation of Section 222.104(b), Transportation Code. Section 5.54 of the commission's rules provide that the commission may authorize the department's executive director or his designee to negotiate a pass-through toll agreement with a public entity after considering the following factors: (1) financial benefits to the state; (2) local public support for the projects; (3) whether the projects are in the department's Unified Transportation Program (UTP); (4) the extent to which the projects will relieve congestion on the state highway system; (5) the potential benefits to regional air quality that may be derived from the projects; (6) compatibility of the proposed projects with existing and planned facilities; and (7) the entity's experience in developing highway projects. After considering factors described by §5.54, the commission determines that: (1) the proposal has the potential to provide significant financial benefits to the state, subject to the outcome of the negotiations with the county; (2) the county's proposal indicated broad support for the projects and did not identify any opposition; (3) none of the projects identified in the proposal are in the current UTP, therefore future funding sources should be identified; (4) the projects identified in the proposal demonstrate the potential to relieve congestion on the state highway system, and the extent of the relief to the system will be quantified and documented in consultation with the Capital Area Metropolitan Planning Organization (CAMPO); (5) potential benefits to regional air quality must be January 26, 2006 452

quantified and documented by CAMPO through the air quality conformity process in accordance with all state and federal regulations; (6) the projects are compatible with existing and planned transportation facilities; and (7) the county lacks significant experience developing highway projects, but has delegated responsibility to a Program Manager that has extensive experience in roadway conceptual planning, preliminary engineering, and design and construction support services for highway projects. Before the projects in this proposal are planned, developed, or constructed using funds administered by the department, the projects: (1) must be included in the CAMPO Metropolitan Transportation Plan; (2) must be included in the department’s UTP, thereby identifying committed funding for each project; (3) prior to construction, must be included in the CAMPO Transportation Improvement Program and the department’s Statewide Transportation Improvement Program; and (4) will be subject to any and all applicable planning and environmental processes and approvals as mandated by state and federal regulations regarding such matters. IT IS THEREFORE ORDERED that the executive director or his designee is authorized to negotiate a pass-through toll agreement with Hays County. If the negotiations are successful, the executive director shall submit to the commission a summary of the final terms of the agreement so that the commission may consider final approval under §5.56 of its rules.

b. Authority to Issue a Request for Competing Proposals El Paso County – Authorize the executive director to issue a request for competing proposals to private entities to design and construct Inner Loop from US 54 to Loop 375 in El Paso County under a pass-through toll agreement. The request for competing proposals relates to a proposal for a project to be developed under a pass-through toll agreement received from J. D. Abrams, L.P.

Commissioner Houghton made a motion, seconded by Commissioner Andrade and the commission approved the following minute order presented by Assistant Executive Director Engineering Operations Amadeo Saenz:

110391 On December 1, 2005, J. D. Abrams, L. P., a private entity, submitted a proposal FIN for a pass-through toll agreement. J. D. Abrams’ proposal provided for the design and construction of Inner Loop from US 54 to Loop 375 in El Paso County, Texas. Section 222.104(b), Transportation Code, authorizes the department to enter into an agreement with a public or private entity that provides for the payment of pass-through tolls to the public or private entity as reimbursement for the design, development, financing, construction, maintenance, or operation of a toll or nontoll facility on the state highway system by the public or private entity. A pass-through toll is a per vehicle fee or a per-vehicle-mile fee that is determined by the number of vehicles using a facility. The commission previously adopted rules, codified as 43 TAC §§5.51-5.59, that prescribe the policies and procedures governing the department's implementation of Section 222.104(b), Transportation Code. January 26, 2006 453

Sections 5.54 and 5.55 of the commission's rules provide that the commission may authorize the department's executive director, upon receipt of a pass-through toll proposal from a private entity, to solicit competing proposals for the project after considering the: (1) financial benefits to the state; (2) local public support for the project; (3) whether the project is in the department's Unified Transportation Program (UTP); (4) extent to which the project will relieve congestion on the state highway system; (5) potential benefits to regional air quality that may be derived from the project; (6) compatibility of the proposed project with existing and planned transportation facilities; and (7) qualifications of the proposer to accomplish the proposed work. After considering the factors described by §5.54, the commission determines that: (1) the proposal has the potential to provide significant financial benefits to the state; (2) San Isidro's proposal indicated broad support for the project and did not identify any opposition; (3) the project identified in the proposal is in the current UTP, therefore future funding sources should be identified; (4) the project identified in the proposal demonstrates the potential to relieve congestion on the state highway system, and the extent of the relief to the system will be quantified and documented in consultation with the El Paso Metropolitan Planning Organization (El Paso-MPO; (5) potential benefits to regional air quality must be quantified and documented by El Paso-MPO through the air quality conformity process in accordance with all state and federal regulations; (6) the project is compatible with existing and planned transportation facilities; and (7) J. D. Abrams’ proposed team for implementation, management and completion of the project appears qualified to accomplish the proposed work. Pursuant to Section 5.55 of the commission's rules, the department will publish notice of the request for competing proposals in the Texas Register and in one or more newspapers of general circulation. The notice will state that the department has received a proposal for a pass-through toll agreement from a private entity, that the department intends to evaluate the proposal, and that the department may negotiate a pass-through toll agreement with the proposer. The notice will state that the department will accept for simultaneous consideration any competing proposal received within 45 days of the publication of the notice in the Texas Register, or such additional time as authorized by the commission. The notice will summarize the proposed project, identify its location, and specify the general criteria that will be used to evaluate all proposals and the relative weight given to the criteria. After evaluation of properly submitted proposals, the department will rank proposals and may select the private entity whose proposal provides the best value to the department. The department will negotiate a pass-through toll agreement with that proposer. Before the project in this proposal is planned, developed, or constructed using funds administered by the department, the project: (1) must be included in the El Paso- MPO Metropolitan Transportation Plan; (2) must be included in the department’s UTP, thereby identifying committed funding for the project; (3) prior to construction, must be included in the El Paso-MPO Transportation Improvement Program and the department’s January 26, 2006 454

Statewide Transportation Improvement Program; and (4) will be subject to any and all applicable planning and environmental processes and approvals as mandated by state and federal regulations regarding such matters. IT IS THEREFORE ORDERED that the executive director or his designee is authorized and directed to issue a notice of request for competing proposals to private entities to design and construct Inner Loop from US 54 to Loop 375 in El Paso County under a pass-through toll agreement. IT IS FURTHER ORDERED that the executive director or his designee is authorized to negotiate a pass-through toll agreement with the private entity whose proposal, based on the department's evaluation, provides the best value to the department. If the negotiations are unsuccessful, the department may reject all proposals or proceed to the next most highly ranked proposal and attempt to negotiate an agreement with that party. Upon completion of successful negotiations, the executive director shall submit to the commission a summary of the final terms of the agreement so that the commission may consider final approval under §5.56 of its rules. IT IS FURTHER ORDERED that the executive director or his designee is authorized to negotiate a pass-through toll agreement with J. D. Abrams if no competing proposals are received in response to the notice for competing proposals. If the negotiations are successful, the executive director shall submit to the commission a summary of the final terms of the agreement so that the commission may consider final approval under §5.56 of its rules.

ITEM 6. TRANSPORTATION PLANNING a. Authorize project selection process for the 2007 Statewide Preservation Program and the Statewide Mobility Program

Commissioner Houghton made a motion, seconded by Commissioner Andrade and the commission approved the following minute order presented by Transportation Planning and Programming Division Director Jim Randall:

110392 Pursuant to Transportation Code, §201.602, the Texas Transportation TPP Commission (commission) conducted a public hearing on November 17, 2005 to receive testimony concerning the highway project selection process and the relative importance of the various criteria on which the commission bases its project selection decisions. In order to clearly distinguish between preservation and enhancement of the state’s transportation system, the Unified Transportation Program (UTP) encompasses two documents. The Statewide Preservation Program (SPP) consists of funding strategies used to maintain the existing transportation system, and the Statewide Mobility Program (SMP) includes funding strategies used to enhance the transportation system. There were no oral comments received at the public hearing. Written comments were accepted through December 19, 2005, but none were received. Exhibit A contains a summary of the UTP categories and the various funding and development criterion. January 26, 2006 455

The commission is satisfied that the proposed highway project selection process is consistent with the Texas Department of Transportation’s goals to reduce congestion, enhance safety, expand economic opportunity, improve air quality and increase the value of the state’s transportation assets. IT IS THEREFORE ORDERED by the commission that the executive director is hereby authorized to utilize the project selection process for developing the 2007 SPP and SMP under the Unified Transportation Program. Note: Exhibit A on file with minute order clerk.

b. Authorize a variance in the manner in which federal-aid highway construction funds are distributed to parts of the state versus the manner in which they are distributed by the federal government

Commissioner Houghton made a motion, seconded by Commissioner Johnson and the commission approved the following minute order presented by Transportation Planning and Programming Division Director Jim Randall:

110393 Transportation Code, §222.034, requires the Texas Transportation Commission TPP (commission) to distribute federal-aid transportation funds to various parts of the state for a funding cycle through the selection of highway projects in a manner consistent with the federal formulas that determine the amount of federal-aid the state of Texas receives, unless the commission issues a minute order or ruling that identifies the variance and provides particular justification for the variance. A distribution under §222.034 does not include deductions made for the state infrastructure bank or other federal-aid funds reallocated by the federal government. Various metropolitan planning organizations and elected officials have advised the Texas Department of Transportation on commission funding categories and formulas for the distribution of transportation funds. The commission conducted a public hearing and adopted the project selection process for the 2007 Unified Transportation Program (UTP). Exhibit A contains an individual evaluation of each federal-aid apportionment program, including particular justification for any variance from the federal-aid apportionment formula and the proposed distribution of the transportation funds through the 2007 UTP. IT IS THERFORE ORDERED by the commission that Exhibit A shall serve as the commission's identification and justification of variances, as required by Transportation Code, Section 222.034. Note: Exhibit A on file with minute order clerk. January 26, 2006 456

c. Concur with the allocation formula and FY 2006 distribution of federal planning funds to the metropolitan planning organizations

Commissioner Houghton made a motion, seconded by Commissioner Andrade and the commission approved the following minute order presented by Transportation Planning and Programming Division Director Jim Randall:

110394 The Safe, Accountable, Flexible and Efficient Transportation Equity Act: A TPP Legacy for Users provides for apportionments of federal metropolitan planning funds to be made available by the states to metropolitan planning organizations (MPOs) for the purpose of assisting in transportation planning in each urbanized area. The Code of Federal Regulations, Section 420.109(a) requires the Texas Department of Transportation (department) to make all Metropolitan Planning Funds, authorized by 23 United States Code 104(f), available to the MPOs by formula. The formula was developed by the department in consultation with the MPOs. In accordance with the CFR 420.109(b), the department has considered population, status of planning, attainment of air quality standards, and metropolitan area transportation needs in developing the formula. IT IS THEREFORE ORDERED that the Texas Transportation Commission (commission) concurs with the federal metropolitan planning funds distribution formula. IT IS FURTHER ORDERED by the commission that, after the Federal Highway Administration approves the formula, the executive director or the director’s designee is directed to allocate for reimbursement to the MPOs, under departmental policies and procedures, the federal metropolitan planning funds using the formula. The Fiscal Year 2006 distribution of federal planning funds for the MPOs is shown in Exhibit A. IT IS FURTHER ORDERED by the commission that future allocation of funds which are based on an approved formula may be calculated by the Transportation Planning and Programming Division and distributed to the MPOs. IT IS UNDERSTOOD that the allocated federal metropolitan planning funds will be made available to the MPOs for a period of two years from the year in which they were allocated. After that period, any unexpended balance will be redistributed to the MPOs based on population or need. Note: Exhibit A on file with minute order clerk. The commission received comments from Texas Metropolitan Planning Organization MPO Director Alan Clark.

d. Certify eligible counties and establish local match adjustments for the 2006 Economically Disadvantaged County Program

Commissioner Houghton made a motion, seconded by Commissioner Johnson and the commission approved the following minute order presented by Transportation Planning and Programming Division Director Jim Randall: January 26, 2006 457

110395 The Texas Transportation Commission (commission) previously adopted rules, TPP codified in 43 TAC §15.55, establishing local government cost participation requirements for the state highway improvement projects. Existing §15.55(b) describes how the commission will implement Transportation Code, §222.053(c). House Bill 1107, 79th Legislature, Regular Session, 2005, amended Transportation Code §222.053 to: 1. require the commission to certify a county as an economically disadvantaged county on an annual basis as soon as possible after the comptroller reports on the economic indicators listed under Transportation Code, §222.053(a); 2. require the commission to determine whether to make an adjustment at the time the local government submits a proposal for a project; and 3. authorize the commission to delegate any of its powers under Transportation Code, §222.053, to the Texas Department of Transportation’s executive director or the director’s designee. The Comptroller’s office has provided the data needed to determine the counties eligible for the Economically Disadvantaged Counties Program for 2006. The counties efforts and ability to provide a local match has been considered in determining the adjustment for each county, using the criteria in 43 TAC §15.55(b) (2). Exhibit A shows the list of 2006 eligible counties and their local match adjustment. IT IS THEREFORE ORDERED by the commission that the 2006 list of eligible counties for the Economically Disadvantaged Counties Program is certified and the local match adjustment for each county is established. The executive director is directed to take the necessary steps to implement the actions as ordered in this minute order, pursuant to the requirements of the Administrative Procedure Act, Government Code, Chapter 2001. Note: Exhibit A on file with minute order clerk.

e. Bowie County – Authorize projects in the Atlanta District in Category 12, Strategic Priority, of the 2006 Statewide Mobility Program and designateWest Hooks County Road from I-30 to US 82 as SH Spur 594

Commissioner Johnson made a motion, seconded by Commissioner Houghton and the commission approved the following minute order presented by Transportation Planning and Programming Division Director Jim Randall:

110396 In BOWIE COUNTY (county), various roadway improvement projects associated TPP with the Red River Army Depot are being proposed for CONSTRUCT authority, in Category 12, Strategic Priority, of the 2006 Statewide Mobility Program (SMP). The first project includes the construction of one-way frontage roads on I-30 from State Spur 86 to Farm to Market Road 560, a distance of approximately 2.7 miles in and around the City of Hooks (city), including the construction of an interchange at the intersection of I-30 and West Hooks County Road (also known as West 22nd Street). The second project includes the upgrade of West Hooks County Road from I-30 to US 82, a distance of approximately 0.4 mile, and will serve as a connection from the interchange at I-30 to US 82 at the Red River Army Depot entrance. January 26, 2006 458

Governor Rick Perry has made a commitment to build new roads and other infrastructure in an effort to support expanding military operations throughout the state. The Texas Department of Transportation supports this effort and has determined that the projects listed in the attached Exhibit A are needed in order to safely accommodate the anticipated increase in traffic that will occur at the Red River Army Depot as a result of continued military operations. These projects will improve mobility on the state highway system by creating additional access to the post by both military and civilian personnel. Additionally, officials from the city and the county have also requested that West Hooks County Road be designated on the state highway system. In order to facilitate the flow of traffic, promote public safety, and maintain continuity on the state highway system, this roadway will be designated on the state highway system as STATE SPUR 594. Pursuant to Texas Transportation Code, §§201.103 and 221.001, the executive director has recommended that the local county road be designated on the state highway system as State Spur 594. IT IS THEREFORE ORDERED by the commission that: 1. STATE SPUR 594 is designated on the state highway system from I-30, 1.4 miles west of FM 560 southward to US 82, a distance of approximately 0.4 mile. 2. The executive director is authorized to enter into any necessary agreements and to proceed in the most feasible and economical manner with development of the projects listed in the attached Exhibit A, at a cost totaling $13 million, to be funded in CONSTRUCT authority, Category 12, Strategic Priority, of the 2006 SMP. Note: Exhibit A on file with minute order clerk.

ITEM 8. FINANCE Various Counties – Accept the Quarterly Investment Report as of November 30, 2005 as required by the Public Funds Investment Act

Commissioner Johnson made a motion, seconded by Commissioner Houghton and the commission approved the following minute order presented by Finance Division Director James Bass:

110397 Government Code, Chapter 2256 (Public Funds Investment Act) authorizes the FIN Texas Transportation Commission (commission) to purchase, sell, and invest its funds and funds under its control in investments authorized under the Public Funds Investment Act, in accordance with investment policies approved by the commission. Government Code, §2256.005 requires the commission to adopt a written investment policy regarding the investment of its funds and funds under its control, including a separate written investment strategy for each of the funds or group of funds under its control, and to designate one or more officers or employees of the Texas January 26, 2006 459

Department of Transportation (department) as investment officer to be responsible for the investment of funds consistent with the investment policy. Government Code, §2256.023 requires the designated investment officer to prepare and submit to the commission, not less than quarterly, a written report of investment transactions for all funds covered by the Public Funds Investment Act for the preceding reporting period. The report must describe in detail the investment position of the department on the date of the report, and must be prepared jointly and signed by each investment officer. Pursuant to this legislation, in Minute Order 108970, dated July 25, 2002, the commission approved and adopted a written investment policy and written investment strategy applicable to funds of the commission held under the Indenture of Trust dated July 15, 2002 securing the outstanding bonds, notes or other obligations issued by the commission to finance a portion of the cost of the initial phase of the Central Texas Turnpike System, also known as the 2002 Project. The investment policy and investment strategy have been amended pursuant to Minute Order 109066, dated October 31, 2002, Minute Order 109339, dated July 31, 2003, Minute Order 109462, dated October 30, 2003, Minute Order 109732, dated July 29, 2004, Minute Order 109963, dated February 24, 2005, and Minute Order 110087, dated May 26, 2005. The commission also adopted investment strategies in relation to the Texas Mobility Fund on February 24, 2005 and the Lease With an Option to Purchase Houston District Headquarters Complex Project on May 26, 2005. The commission has designated the department’s Chief Financial Officer and Deputy Director of Finance as investment officers. Section 9.0 of the investment policy requires the investment officer to prepare and submit to each member of the commission and the executive director of the department an investment report on no less than a quarterly basis. The report must be prepared in accordance with the requirements of that section, including containing sufficient information to provide for a comprehensive review of investment activity and current investment instruments and performance for the reporting period. Quarterly investment reports will be prepared for each quarter of the department’s fiscal year. A quarterly investment report for the 2002 Project for the period ending November 30, 2005, attached as Exhibit A, and a quarterly investment report for the Lease With an Option to Purchase Houston District Headquarters Complex Project for the period ending November 30, 2005, attached as Exhibit B, has been prepared in accordance with Government Code, §2256.023 and Section 9.0 of the investment policy. IT IS THEREFORE ORDERED by the commission that the quarterly investment reports attached as Exhibits A and B are accepted. Note: Exhibits A and B on file with minute order clerk. January 26, 2006 460

ITEM 10. RIGHT OF WAY Denton County – Authorize the negotiation of options to purchase for advance acquisition of right of way for I-35E

Commissioner Houghton made a motion, seconded by Commissioner Andrade and the commission approved the following minute order presented by Right of Way Division Director John Campbell:

110398 In DENTON COUNTY, a project has been proposed to widen INTERSTATE 35 ROW East (I35E) from north of FM 407 to Hickory Creek Branch of Lake Lewisville, approximately 2.4 miles. The Texas Transportation Commission (commission) finds that use of options to acquire property for possible use in connection with the I-35E project may reduce the time required for the acquisition of right of way and can be economically beneficial to the state by either establishing the purchase price at current market value as of the date of the option contract or establishing a methodology for determining a purchase price at the time the option is exercised without the necessity for condemnation, and/or agreeing to restrictions on the owner’s future development and improvement of the property. Successful negotiation of options for this project will help preserve the transportation corridor and benefit both the public and land owners along the proposed route. Although construction of the project is not yet authorized and no final determination has been made on the alignment of the project, preserving the transportation corridor and the completion of the I-35E project is essential and urgent, as the construction of the project will alleviate congestion and improve traffic flow. Transportation Code, §201.103 and §361.032 authorize the commission to plan and make policies for the location, construction, and maintenance of a comprehensive system of state highways and public roads as well as toll road projects. Transportation Code, §§203.051 and 203.052 authorize the commission to acquire an interest in real property that the commission determines is necessary or convenient to a state highway or toll road project, including property necessary or convenient to protect a state highway or toll road project or to accomplish any other purpose related to the project location, construction, improvement, maintenance, beautification, preservation, or operation. Transportation Code, §202.112 authorizes the commission to purchase an option to acquire property for possible use in, or in connection with, a transportation facility before a final decision has been made as to whether the transportation facility will be located on that property. IT IS THEREFORE ORDERED by the commission that the Dallas district engineer is authorized to negotiate with property owners along the proposed routes of I- 35E and execute option contracts for the purchase of property of a size and in a location as is reasonably related to the possible future design and alignment of such transportation facility, and to expend funds for option fee payments, surveys, title examinations, appraisals and other expenses reasonably necessary to purchase the options. January 26, 2006 461

ITEM 11. CONTRACTS a. Award or Reject Highway Improvement Contracts (1) Maintenance

Commissioner Johnson made a motion, seconded by Commissioner Houghton and the commission approved the following minute order presented by Construction Division Director Thomas Bohuslav:

110399 Pursuant to Transportation Code, Chapter 223, Subchapter A, and Title 43, Texas CST Administrative Code, Chapter 9, Subchapter B, the Texas Department of Transportation (department) solicited and received sealed competitive bid proposals for maintenance of the State Highway System, which were publicly opened and read on January 10 and 11, 2006. Pursuant to cited code provisions highway maintenance contract bids on a project may be accepted or rejected, but if accepted must be awarded to the lowest bidder. An award is conditional in the event it is subject to Federal Highway Administration concurrence, third party funding or concurrence, and other conditions listed in the contract. The department recommends that the Texas Transportation Commission (commission) respectively award to the lowest bidder or reject, as indicated, those highway maintenance contracts, with an engineer’s estimated cost of $300,000 or more, identified on attached Exhibit A to this order. IT IS THEREFORE ORDERED by the commission that the highway maintenance contracts described in Exhibit A be and are hereby respectively awarded to the lowest bidder or rejected as indicated therein. If a contractual requirement of award is not satisfied within the prescribed time limit, including any extension of time allowed by the executive director or the director’s designee, by reason of the action or inaction of the successful low bidder on any contract, including, but not limited to, disadvantaged business/historically underutilized business participation, the contract is automatically in default and the executive director is authorized and directed to retain and deposit the related contract proposal guaranty to the credit of the State Highway Fund and to readvertise that project for competitive bids at the earliest practical subsequent date. If a condition of award is not satisfied, including, but not limited to, reason of nonconcurrence of the Federal Highway Administration, the failure of a third party to fund or concur, or failure to meet other conditions in the contract, the respective award is voided and the department will return the bid guaranty. Note: Exhibit A on file with minute order clerk. January 26, 2006 462

(2) Highway and Building Construction

Commissioner Johnson made a motion, seconded by Commissioner Houghton, and the commission approved the following minute order, rejecting Project Nos. C 924- 10-5 in Jeff Davis County; and STP 2006(156)SFT in Waller County presented by Construction Division Director Thomas Bohuslav:

110400 Pursuant to Transportation Code, Chapter 223, Subchapter A, and Title 43, Texas CST Administrative Code, Chapter 9, Subchapter B, the Texas Department of Transportation (department) solicited and received sealed competitive bid proposals for improvement of the State Highway System, which were publicly opened and read on January 10 and 11, 2006. Pursuant to cited code provisions highway improvement contract bids on a project may be accepted or rejected, but if accepted must be awarded to the lowest bidder. An award is conditional in the event it is subject to Federal Highway Administration concurrence, third party funding or concurrence, and other conditions listed in the contract. The department recommends that the Texas Transportation Commission (commission) respectively award to the lowest bidder or reject, as indicated, those highway improvement contracts identified on attached Exhibit A to this order. IT IS THEREFORE ORDERED by the commission that the highway improvement contracts described in Exhibit A be and are hereby respectively awarded to the lowest bidder or rejected as indicated therein. If a contractual requirement of award is not satisfied within the prescribed time limit, including any extension of time allowed by the executive director or the director’s designee, by reason of the action or inaction of the successful low bidder on any contract, including, but not limited to, disadvantaged business/historically underutilized business participation, the contract is automatically in default and the executive director is authorized and directed to retain and deposit the related contract proposal guaranty to the credit of the State Highway Fund and to readvertise that project for competitive bids at the earliest practical subsequent date. If a condition of award is not satisfied, including, but not limited to, reason of nonconcurrence of the Federal Highway Administration, the failure of a third party to fund or concur, or failure to meet other conditions in the contract, the respective award is voided and the department will return the bid guaranty. Note: Exhibit A on file with minute order clerk.

b. Contract Claims (1) Crockett and Irion Counties – Project RMC 611084001, etc. – Approve a claim settlement with A-Agape Contracting, Inc. for additional compensation

Commissioner Houghton made a motion, seconded by Commissioner Andrade and the commission approved the following minute order presented by Assistant Executive Director for Engineering Operations Amadeo Saenz. January 26, 2006 463

110401 In CROCKETT AND IRION COUNTIES on FARM TO MARKET ROAD 2398 ADM AND US 67, A-Agape Contracting, Inc. (contractor) was awarded maintenance project RMC 611084001, etc. in the amount of $242,783. The contractor filed a claim against the Texas Department of Transportation (department) for additional compensation in an unspecified amount for delays caused by the department and for materials purchased but not used on the project. Pursuant to Title 43, Texas Administrative Code, §9.2, the Contract Claim Committee met informally with the contractor, and the claim was successfully resolved. The agreed resolution requires that the contractor be paid the sum of $30,000 in full and final satisfaction of the claim. This consideration shall be payable only after the department is in receipt of a duly authorized and completed Settlement Agreement and Release containing a specific promise by the contractor to release and hold harmless the State of Texas, its officers, and employees with regard to all claims and disputes arising from the contract. IT IS THEREFORE ORDERED by the Texas Transportation Commission (commission) that the sum of $30,000 is authorized to be expended from funds under the control and jurisdiction of the commission, and the executive director is directed to take the necessary steps to secure a warrant in this amount payable to the contractor.

(2) Montgomery County – Project STP 2003(387), etc. – Approve a claim settlement with C.D.S. Enterprises, Inc. for additional compensation

Commissioner Houghton made a motion, seconded by Commissioner Andrade and the commission approved the following minute order presented by Assistant Executive Director for Engineering Operations Amadeo Saenz.

110402 In MONTGOMERY COUNTY on VARIOUS HIGHWAYS, C.D.S. Enterprises, ADM Inc. (contractor) was awarded construction project STP 2003(387), etc. in the amount of $9,016,000. The contractor filed a claim against the Texas Department of Transportation (department) for additional compensation in the amount of $398,359 for ambiguous plan information that made it impossible to estimate for bids the quantities of base and asphalt concrete overlay required on the driveways. The contractor claimed the asphalt for the driveways is not subsidiary to the driveway item and should be paid separately. Pursuant to Title 43, Texas Administrative Code, §9.2, the Contract Claim Committee met informally with the contractor, and the claim was successfully resolved. The agreed resolution requires that the contractor be paid the sum of $200,000 in full and final satisfaction of the claim. This consideration shall be payable only after the department is in receipt of a duly authorized and completed Settlement Agreement and Release containing a specific promise by the contractor to release and hold harmless the State of Texas, its officers, and employees with regard to all claims and disputes arising from the contract. January 26, 2006 464

IT IS THEREFORE ORDERED by the Texas Transportation Commission (commission) that the sum of $200,000 is authorized to be expended from funds under the control and jurisdiction of the commission, and the executive director is directed to take the necessary steps to secure a warrant in this amount payable to the contractor.

(3) Rusk County – Project RMC 610758001 – Approve a claim settlement with Taylor Mowing Service for additional compensation

Commissioner Houghton made a motion, seconded by Commissioner Andrade and the commission approved the following minute order presented by Assistant Executive Director for Engineering Operations Amadeo Saenz.

110403 In RUSK COUNTY on VARIOUS HIGHWAYS, Taylor Mowing Service ADM (contractor) was awarded maintenance project RMC 610758001 in the amount of $139,382.28. The contractor filed a claim against the Texas Department of Transportation (department) for additional compensation in the amount of $1,600 for liquidated damages. Pursuant to Title 43, Texas Administrative Code, §9.2, the Contract Claim Committee met informally with the contractor and a settlement of $1,200 was offered. The contractor failed to notify the department of his acceptance of the proposed settlement amount within the prescribed 20-day period. Pursuant to Title 43, Texas Administrative Code, §9.2, the failure to notify the department within the prescribed 20- day period bars the contractor from further appeal. The agreed resolution requires that the contractor be paid the sum of $1,200 in full and final satisfaction of the claim. This consideration shall be payable only after the department is in receipt of a duly authorized and completed Settlement Agreement and Release containing a specific promise by the contractor to release and hold harmless the State of Texas, its officers, and employees with regard to all claims and disputes arising from the contract. IT IS THEREFORE ORDERED by the Texas Transportation Commission (commission) that the sum of $1,200 is authorized to be expended from funds under the control and jurisdiction of the commission, and the executive director is directed to take the necessary steps to secure a warrant in this amount payable to the contractor.

(4) Wood County – Project RMC 610761001 – Approve a claim settlement with Taylor Mowing Service for additional compensation

Commissioner Johnson made a motion, seconded by Commissioner Houghton and the commission approved the following minute order presented by Assistant Executive Director for Engineering Operations Amadeo Saenz. January 26, 2006 465

110404 In WOOD COUNTY on VARIOUS HIGHWAYS, Taylor Mowing Service ADM (contractor) was awarded maintenance project RMC 610761001 in the amount of $290,650.84. The contractor filed a claim against the Texas Department of Transportation (department) for additional compensation in the amount of $1,604.15 for alleged damages to a motorist’s vehicle that the district is withholding until the repairs had been made and for liquidated damages. Pursuant to Title 43, Texas Administrative Code, §9.2, the Contract Claim Committee met informally with the contractor and offered to settle for the claim amount requested. The contractor failed to notify the department of his acceptance of the proposed settlement amount within the prescribed 20-day period. Pursuant to Title 43, Texas Administrative Code, §9.2, the failure to notify the department within the prescribed 20- day period bars the contractor from further appeal. The agreed resolution requires that the contractor be paid the sum of $1,604.15 in full and final satisfaction of the claim. This consideration shall be payable only after the department is in receipt of a duly authorized and completed Settlement Agreement and Release containing a specific promise by the contractor to release and hold harmless the State of Texas, its officers, and employees with regard to all claims and disputes arising from the contract. IT IS THEREFORE ORDERED by the Texas Transportation Commission (commission) that the sum of $1,604.15 is authorized to be expended from funds under the control and jurisdiction of the commission, and the executive director is directed to take the necessary steps to secure a warrant in this amount payable to the contractor.

ITEM 14. ROUTINE MINUTE ORDERS

Commissioner Johnson made a motion, seconded by Commissioner Andrade, and the commission approved the following minute orders presented by Executive Director Michael W. Behrens.

a. Donations to the Department (1) Construction Division – Consider a donation from the Rubber Pavement Association for a department employee’s travel expenses to attend RPA’s annual meeting to be held in Scottsdale, Arizona from February 9-10, 2006

110405 This minute order considers a donation of $876.41 in travel expenses from the OGC Rubber Pavement Association (RPA) for a Texas Department of Transportation (department) employee to participate in RPA’s annual meeting to be held in Scottsdale, Arizona from February 9 – 10, 2006. The department has determined that acceptance of the donation is in the best interest and welfare of the traveling public and will provide a significant public benefit. January 26, 2006 466

Transportation Code, §201.206, authorizes the department to accept a donation in any form, including realty, personalty, money, materials, and services, for the purpose of carrying out its functions and duties. Government Code, Chapter 575, requires the governing board of a state agency to acknowledge the acceptance of a donation valued at $500 or more by majority vote at an open meeting, not later than the 60th day after the date the donation is accepted. It also prohibits a state agency from accepting a donation from a person who is a party to a contested case before the agency until the 30th day after the date the decision in the case becomes final. The Texas Transportation Commission (commission) has adopted 43 TAC §§1.500-1.506, which relate to the department’s acceptance of donations. Section 1.503 prohibits acceptance of a gift or donation when the donor is subject to department regulation or oversight or when the donor is interested in or likely to become interested in any contract, purchase, payment, or claim with or against the department, except as provided by that section. It also provides that the commission may approve the acceptance of a donation, notwithstanding the foregoing proscriptions in the rules, if it determines that acceptance would provide a significant public benefit and would not influence or reasonably appear to influence the department in the performance of its duties. The commission finds that the donation will further the department’s responsibilities and that the donor is not a party to a contested case before the department and has not been a party to a contested case before the department during the last 30 days. The commission also finds that the donor is not subject to department regulation or oversight and is not interested in or likely to become interested in any contract, purchase, payment, or claim with or against the department. Members of the donor’s organization may be interested in a contract, but, nonetheless, the commission finds that this donation will not influence or reasonably appear to influence the department in the performance of its duties. IT IS THEREFORE ORDERED by the commission that the donation of $876.41 by NSBA is accepted. The executive director or the executive director’s designee is authorized to execute all necessary documents under 43 TAC §1.504 to effect the acceptance of the donation.

(2) Dallas and Tarrant Counties – Consider a donation for costs associated with the design, fabrication and installation of signs designating the Ronald Reagan Memorial Highway on I-20

110406 This minute order considers a donation to the Texas Department of Transportation OGC (department) from the Ronald Reagan Memorial Highway Committee (Committee) for an estimated $10,000 for costs associated with the design, construction, and installation of highway signs. The signs will be used to designate portions of Interstate Highway 20 inside Dallas and Tarrant Counties as the Ronald Reagan Memorial Highway. This donation has been examined, and the department recommends issuance of this minute order on the ground that it is in the best interest and welfare of the traveling public. January 26, 2006 467

Transportation Code, §201.206, authorizes the department to accept a donation in any form, including realty, personalty, money, materials, and services, for the purpose of carrying out its functions and duties. Government Code, Chapter 575, requires the governing board of a state agency to acknowledge the acceptance of a donation valued at $500 or more by majority vote at an open meeting, not later than the 60th day after the date the donation is accepted. It also prohibits a state agency from accepting a donation from a person who is a party to a contested case before the agency until the 30th day after the date the decision in the case becomes final. The Texas Transportation Commission (commission) has adopted 43 TAC §§1.500-1.506, which relate to the department’s acceptance of donations. Section 1.503 prohibits acceptance of a gift or donation when the donor is subject to department regulation or oversight or when the donor is interested in or likely to become interested in any contract, purchase, payment, or claim with or against the department, except as provided by that section. It also provides that the commission may approve the acceptance of a donation, notwithstanding the foregoing proscriptions in the rules, if it determines that acceptance would provide a significant public benefit and would not influence or reasonably appear to influence the department in the performance of its duties. The commission finds that the donation will further the department’s responsibilities and that the donor is not a party to a contested case before the department and has not been a party to a contested case before the department during the last 30 days. The commission also finds that the donor is not subject to department regulation or oversight but may have members that are interested in or likely to become interested in any contract, purchase, payment, or claim with or against the department. Nonetheless, the donation will provide a significant benefit to the public. IT IS THEREFORE ORDERED by the commission that the estimated donation of $10,000 by the Committee is accepted. The executive director or the executive director’s designee is authorized to execute all necessary documents under 43 TAC §1.504 to effect the acceptance of the donation.

(3) Houston District – Acknowledge a donation of two conference tickets from Surveying and Mapping, Inc. for department employees that attended the 8th Annual Damage Prevention Subsurface Solutions Conference and Exposition that was held from December 6-8, 2005 in Houston, Texas

110407 This minute order acknowledges a donation of conference tickets worth $1,060 OGC from Surveying and Mapping, Inc. (SAM) for two Texas Department of Transportation (department) employees who attended the 8th Annual Damage Prevention Subsurface Solutions Conference and Exposition that was held in Houston, Texas from December 6 – 8, 2005. The department has determined that acceptance of the donation is in the best interest and welfare of the traveling public and will provide a significant public benefit. January 26, 2006 468

Transportation Code, §201.206, authorizes the department to accept a donation in any form, including realty, personalty, money, materials, and services, for the purpose of carrying out its functions and duties. Government Code, Chapter 575, requires the governing board of a state agency to acknowledge the acceptance of a donation valued at $500 or more by majority vote at an open meeting, not later than the 60th day after the date the donation is accepted. It also prohibits a state agency from accepting a donation from a person who is a party to a contested case before the agency until the 30th day after the date the decision in the case becomes final. The Texas Transportation Commission (commission) has adopted 43 TAC §§1.500-1.506, which relate to the department’s acceptance of donations. Section 1.503 prohibits acceptance of a gift or donation when the donor is subject to department regulation or oversight or when the donor is interested in or likely to become interested in any contract, purchase, payment, or claim with or against the department, except as provided by that section. It also provides that the commission may approve the acceptance of a donation, notwithstanding the foregoing proscriptions in the rules, if it determines that acceptance would provide a significant public benefit and would not influence or reasonably appear to influence the department in the performance of its duties. The commission finds that the donation will further the department’s responsibilities and that the donor is not a party to a contested case before the department and has not been a party to a contested case before the department during the last 30 days. The commission also finds that the donor is not subject to department regulation or oversight and that they have nine active contracts with the department. Nonetheless, the commission finds that this donation will not influence or reasonably appear to influence the department in the performance of its duties. IT IS THEREFORE ORDERED by the commission that the donation of conference tickets worth $1,060 by SAM is acknowledged. The executive director or the executive director’s designee is authorized to execute all necessary documents under 43 TAC §1.504 to effect the acknowledgment of the donation.

(4) Hunt County – Consider a donation from Wal-Mart Stores, Texas, L.P., for engineering and installation costs for a new traffic signal at a proposed Super Wal-Mart shopping center on SH 34 in Quinlan

110408 This minute order considers an estimated $150,000 donation by Wal-Mart Stores OGC Texas, L.P. (WST) to the Texas Department of Transportation (department) for engineering and installation costs for a new traffic signal at a proposed Super Wal-Mart shopping center located on SH 34 in Quinlan. This donation has been examined by department personnel. The department recommends issuance of this minute order on the ground that it is in the best interest and welfare of the traveling public. January 26, 2006 469

Transportation Code, §201.206, authorizes the department to accept a donation in any form, including realty, personalty, money, materials, and services, for the purpose of carrying out its functions and duties. Government Code, Chapter 575, requires the governing board of a state agency to acknowledge the acceptance of a donation valued at $500 or more by majority vote at an open meeting, not later than the 60th day after the date the donation is accepted. It also prohibits a state agency from accepting a donation from a person who is a party to a contested case before the agency until the 30th day after the date the decision in the case becomes final. The Texas Transportation Commission (commission) has adopted 43 TAC §§1.500-1.506, which relate to the department's acceptance of donations. Section 1.503 prohibits acceptance of a gift or donation when the donor is subject to department regulation or oversight or when the donor is interested in or likely to become interested in any contract, purchase, payment, or claim with or against the department, except as provided by that section. It also provides that the commission may approve the acceptance of a donation, notwithstanding the foregoing proscriptions in the rules, if it determines that acceptance would provide a significant public benefit and would not influence or reasonably appear to influence the department in the performance of its duties. The commission finds that the donation will further the department’s responsibilities and that the donor is not a party to a contested case before the department and has not been a party to a contested case before the department during the last 30 days. The commission also finds that the donor is not subject to department regulation or oversight and is not interested in or likely to become interested in any contract, purchase, payment, or claim with or against the department. IT IS THEREFORE ORDERED by the commission that the estimated donation of $150,000 by WST is accepted. The executive director or the executive director's designee is authorized to execute all necessary documents under 43 TAC §1.504 to effect the acceptance of the donation.

(5) Lubbock County – Consider a donation from Canyon Hub Holdings, L.P., for construction of an auxiliary lane at a proposed retail shopping complex along US 82, Marsha Sharp Freeway, city of Lubbock

110409 Canyon Hub Holdings, L.P. proposes to donate to the Texas Department of OGC Transportation (department) an estimated $260,000 necessary for the construction of an auxiliary lane associated with a proposed retail shopping complex on US 82, Marsha Sharp Freeway, in Lubbock, Texas. This donation has been examined by department personnel. The department recommends issuance of this minute order on the ground that it is in the best interest and welfare of the traveling public. Transportation Code, §201.206, authorizes the department to accept a donation in any form, including realty, personalty, money, materials, and services, for the purpose of carrying out its functions and duties. January 26, 2006 470

Government Code, Chapter 575, requires the governing board of a state agency to acknowledge the acceptance of a donation valued at $500 or more by majority vote at an open meeting, not later than the 60th day after the date the donation is accepted. It also prohibits a state agency from accepting a donation from a person who is a party to a contested case before the agency until the 30th day after the date the decision in the case becomes final. The Texas Transportation Commission (commission) has adopted 43 TAC §§1.500-1.506, which relate to the department’s acceptance of donations. Section 1.503 prohibits acceptance of a gift or donation when the donor is subject to department regulation or oversight or when the donor is interested in or likely to become interested in any contract, purchase, payment, or claim with or against the department, except as provided by that section. It also provides that the commission may approve the acceptance of a donation, notwithstanding the foregoing proscriptions in the rules, if it determines that acceptance would provide a significant public benefit and would not influence or reasonably appear to influence the department in the performance of its duties. The commission finds that the donation will further the department’s responsibilities and that the donor is not a party to a contested case before the department and has not been a party to a contested case before the department during the last 30 days. The commission also finds that the donor is not subject to department regulation or oversight and is not interested in or likely to become interested in any contract, purchase, payment, or claim with or against the department. IT IS THEREFORE ORDERED by the commission that the estimated donation of $260,000 by Canyon Hub Holdings, L.P. is accepted. The executive director or the executive director’s designee is authorized to execute all necessary documents under 43 TAC §1.504 to effect the acceptance of the donation.

(6) Panola County – Consider a donation from TXU Mining Company, L.P., for providing easements and all costs associated with constructing a grade separation along FM 1251

110410 This minute order considers a cash donation of an estimated amount between $2.5 OGC million and $4 million to the Texas Department of Transportation (department) from TXU Mining Company, L.P. (TXU) to donate sufficient funding, property, and services to provide for utility relocation; environmental assessments; schematics; plans, specifications, and estimates; construction; and construction engineering necessary for construction of a haul-road overpass along FM 1251 in Panola County, Texas described in Exhibit A. TXU has further agreed that upon completion of construction, if it is necessary, it will convey to the state an easement interest in land. This donation has been examined, and the department recommends issuance of this minute order on the ground that acceptance of the donation is in the best interest and welfare of the traveling public. January 26, 2006 471

Transportation Code, §201.206, authorizes the department to accept a donation in any form, including realty, personalty, money, materials, and services, for the purpose of carrying out its functions and duties. Government Code, Chapter 575, requires the governing board of a state agency to acknowledge the acceptance of a donation valued at $500 or more by majority vote at an open meeting, not later than the 60th day after the date the donation is accepted. It also prohibits a state agency from accepting a donation from a person who is a party to a contested case before the agency until the 30th day after the date the decision in the case becomes final. The Texas Transportation Commission (commission) has adopted 43 TAC §§1.500-1.506, which relate to the department’s acceptance of donations. Section 1.503 prohibits acceptance of a gift or donation when the donor is subject to department regulation or oversight or when the donor is interested in or likely to become interested in any contract, purchase, payment, or claim with or against the department, except as provided by that section. It also provides that the commission may approve the acceptance of a donation, notwithstanding the foregoing proscriptions in the rules, if it determines that acceptance would provide a significant public benefit and would not influence or reasonably appear to influence the department in the performance of its duties. The commission finds that the donation will further the department’s responsibilities and that the donor is not a party to a contested case before the department and has not been a party to a contested case before the department during the last 30 days. The commission also finds that the donor is not subject to department regulation or oversight and that acceptance of this donation will not influence or reasonably appear to influence the department in the performance of its duties. The donor previously donated funds for similar projects, and agreements have been signed without any issues. IT IS THEREFORE ORDERED by the commission that the donation by TXU is accepted. The executive director or the executive director’s designee is authorized to execute all necessary documents under 43 TAC §1.504 to effect the acceptance of the donation.

(7) Texas Turnpike Authority Division – Acknowledge a donation from Knik Arm Bridge and Toll Authority (KABATA) for a department employee’s travel expenses to participate in KABATA’s Industry Symposium that was held January 11-12, 2006 in Anchorage, Alaska

110411 This minute order acknowledges a donation of $1,797.33 from Knik Arm Bridge OGC and Toll Authority (KABATA) for a Texas Department of Transportation (department) employee’s travel expenses. The employee attended KABATA’s Industry Symposium that was held in Anchorage, Alaska from January 11-12, 2006. The department has determined that acceptance of the donation is in the best interest and welfare of the traveling public and will provide a significant public benefit. January 26, 2006 472

Transportation Code, §201.206, authorizes the department to accept a donation in any form, including realty, personalty, money, materials, and services, for the purpose of carrying out its functions and duties. Government Code, Chapter 575, requires the governing board of a state agency to acknowledge the acceptance of a donation valued at $500 or more by majority vote at an open meeting, not later than the 60th day after the date the donation is accepted. It also prohibits a state agency from accepting a donation from a person who is a party to a contested case before the agency until the 30th day after the date the decision in the case becomes final. The Texas Transportation Commission (commission) has adopted 43 TAC §§1.500-1.506, which relate to the department’s acceptance of donations. Section 1.503 prohibits acceptance of a gift or donation when the donor is subject to department regulation or oversight or when the donor is interested in or likely to become interested in any contract, purchase, payment, or claim with or against the department, except as provided by that section. It also provides that the commission may approve the acceptance of a donation, notwithstanding the foregoing proscriptions in the rules, if it determines that acceptance would provide a significant public benefit and would not influence or reasonably appear to influence the department in the performance of its duties. The commission finds that the donation will further the department’s responsibilities and that the donor is not a party to a contested case before the department and has not been a party to a contested case before the department during the last 30 days. The commission also finds that the donor is not subject to department regulation or oversight, and that this donation will not influence or reasonably appear to influence the department in the performance of its duties. IT IS THEREFORE ORDERED by the commission that the donation of approximately $1,797.33 by KABATA is acknowledged. The executive director or the executive director’s designee is authorized to execute all necessary documents under 43 TAC §1.504 to effect the acknowledgement of the donation.

b. Eminent Domain Proceedings Various Counties - noncontrolled and controlled access highways

110412 The Texas Transportation Commission (commission) of the State of Texas (state) ROW has found in order to promote the public safety, to facilitate the safety and movement of traffic and to preserve the financial investment of the public in its highways, public necessity requires the laying out, opening, constructing, reconstructing, maintaining, and operating of the following highways in the state as a part of the State Highway System (highway system). The commission has found and determined that each of the following listed parcels of land, same being more particularly described in the exhibits attached hereto, and such additional lesser estates or property interests described thereon, are necessary or convenient for use for such purposes and it is necessary to acquire fee simple title to said January 26, 2006 473

land, as provided by Texas Transportation Code, Subchapter D, Chapter 203, Sections 203.051, 203.052, and 203.054, as a part of the highway system to be constructed, reconstructed, maintained and operated thereon. The commission has found in order to promote the public safety, to facilitate the safety and movement of traffic, to preserve the financial investment of the public in its highways and reconstructing, maintaining, and operating of Controlled Access Highways in the state as a part of the highway system at such locations as are necessary throughout the state and has determined that each of the following listed parcels of land, described in those Exhibits designated, identified and listed by an alphabetical exhibit reference under "CONTROLLED ACCESS" and same being more particularly described in the exhibits attached hereto and such additional lesser estates or property interests described thereon, are necessary and suitable for use for such purposes and it is necessary to acquire fee simple title to said land, as provided by law, as a part of the highway system to be so constructed, reconstructed, maintained, and operated thereon and in the exercise of the police power of the state for the preservation of human life and safety, and under existing laws, the highway to be constructed on each such parcel of land is designated as a Controlled Access Highway, and on such parcels of land listed herein where there is remaining abutting private property, roads are to be built as a part of said highway whereby the right of ingress and egress to or from the remaining private property abutting on said highway is to be permitted and/or denied, as designated and set forth on each of the exhibits attached hereto. The commission, through its duly authorized representatives, has attempted to negotiate with the owner(s) of the parcels of land described in the attached exhibits and has been unable to agree with such owner(s) as to the fair cash market value thereof and damages, if any, or after diligent search of available records, numerous inquiries, and actual visits to the location of said parcels of land has been unable to locate the owner(s) of same so as to enter into negotiations for the purchase of said parcels of land. IT IS THEREFORE ORDERED that the executive director is hereby authorized and directed to transmit this request of the commission to the attorney general to file or cause to be filed against all owners, lienholders and any owners of any other interests in said parcels of land, proceedings in eminent domain to acquire in the name of and on behalf of the state, for said purposes, fee simple title to each such parcel of land as are more particularly described in each of the exhibits attached hereto and made a part hereof, and such additional lesser estates or property interests as are more fully described in each of said exhibits, save and excepting, oil, gas and sulphur, as provided by law, to wit:

NON-CONTROLLED ACCESS EXHIBIT COUNTY HIGHWAY ROW CSJ NO. PARCEL 1 Hidalgo BS 83 0039-02-054 11 2 Falls SH 6 0049-04-056 12/12E- Pts1&2 January 26, 2006 474

NON-CONTROLLED ACCESS EXHIBIT COUNTY HIGHWAY ROW CSJ NO. PARCEL 3 Falls SH 6 0049-04-059 18 4 Falls SH 6 0049-04-059 26 5 Falls SH 6 0049-04-059 28 6 Bexar US 281 0253-04-126 1A 7 Bexar US 281 0253-04-126 1B 8 Dallas LP 12 0353-05-105 5/5TE-Pts1&2 9 El Paso FM 76 0674-01-058 60 10 Nacogdoches FM 225 1810-02-015 35/35TE 11 Nacogdoches FM 225 1810-02-015 38/38TE- Pts1&2 12 Harris Gulf Bank Road 8003-12-008 105A

CONTROLLED ACCESS EXHIBIT COUNTY HIGHWAY ROW CSJ NO. PARCEL A Hidalgo US 83 0039-17-144 53 B Hidalgo US 83 0039-17-144 72 C Hidalgo US 83 0039-17-144 94 D Hidalgo US 83 0039-17-144 109 E Hidalgo US 83 0039-17-144 146 F Falls SH 6 0049-04-056 26AC G Falls SH 6 0049-04-056 26E-Pts1,2&3 H Travis SH 71 0113-13-086 62A I Travis SH 71 0113-13-086 63A J Travis SH 71 0113-13-086 133 K Archer US 277 0156-05-044 73-Pts1&2 L Baylor US 277 0156-15-002 5 M Baylor US 277 0156-15-002 7A N Baylor US 277 0156-15-002 7B O Baylor US 277 0156-15-002 8 P Baylor US 277 0156-15-002 10 Q Baylor US 277 0156-15-002 33/33E R Tarrant SH 199 0171-04-051 408E S Angelina US 59 0176-03-120 12 T Liberty SH 105 0338-05-025 11 U Liberty SH 105 0338-05-025 25 V Lubbock US 82 0380-01-053 358 W Williamson SH 130 0440-05-007 1141AC X Williamson SH 130 0440-05-007 1143AC Y Johnson SH 121 0504-05-002 93 Z Dallas LP 12 0581-02-115 3 January 26, 2006 475

CONTROLLED ACCESS EXHIBIT COUNTY HIGHWAY ROW CSJ NO. PARCEL AA Dallas LP 12 0581-02-115 21 BB Dallas LP 12 0581-02-115 28 CC Dallas IH 635 2374-01-149 25 DD Dallas IH 635 2374-01-152 1 EE Dallas IH 635 2374-01-152 10 FF El Paso LP 375 2552-03-043 62 Note: Exhibits 1 through 12 and A through FF on file with minute order clerk.

c. Highway Designations (1) Culberson County – Redesignate a segment of FM 2185 on the state highway system as FM 3541

110413 In CULBERSON COUNTY (county), county officials have requested that a TPP segment of FARM TO MARKET ROAD 2185 be redesignated as FARM TO MARKET ROAD 3541 on the state highway system. Pursuant to Texas Transportation Code, §§201.103 and 221.001, the executive director has recommended that a segment of FM 2185 be redesignated on the state highway system as FM 3541. IT IS THEREFORE ORDERED by the Texas Transportation Commission that a segment of FM 2185 is redesignated on the state highway system as FM 3541 from the intersection of RANCH TO MARKET ROAD 652 southward to approximately 6.3 miles south of the intersection of RM 652, a distance of approximately 6.3 miles.

(2) Fort Bend County – Removal of FM Spur 1640 from the state highway system and return control, jurisdiction, and maintenance to the City of Rosenberg

110414 In FORT BEND COUNTY (county) in the City of Rosenberg (city), city officials TPP have requested the removal of FARM TO MARKET ROAD SPUR 1640 from the state highway system. The city would like to incorporate the roadway into its street system and has requested control, jurisdiction and maintenance of FM Spur 1640. Pursuant to Texas Transportation Code, §§201.103 and 221.001, the executive director has recommended that FM Spur 1640 be removed from the state highway system and returned to the city. IT IS THEREFORE ORDERED by the Texas Transportation Commission that FM Spur 1640 is removed from the state highway system from the intersection of US 90 Alternate southward to the intersection of FARM TO MARKET ROAD 1640, a distance of approximately 0.06 mile, and returned to the city for control, jurisdiction and maintenance. January 26, 2006 476

(3) Lubbock County – Remove Spur 313 from the state highway system and return control, jurisdiction, and maintenance to the cities of Lubbock and Wolfforth

110415 In LUBBOCK COUNTY, in the cities of Lubbock and Wolfforth (cities), TPP officials have requested the removal of STATE HIGHWAY SPUR 313 from the state highway system, and would like to incorporate the roadway into its street system and has requested control, jurisdiction and maintenance of State Highway Spur 313. Pursuant to Texas Transportation Code, §§201.103 and 221.001, the executive director has recommended that SH Spur 313 be removed from the state highway system and returned to the cities. IT IS THEREFORE ORDERED by the Texas Transportation Commission that STATE HIGHWAY SPUR 313 is removed from the state highway system from the intersection of US 62 eastward to it terminus at the intersection of FARM TO MARKET ROAD 1730 and returned to the cities for control, jurisdiction and maintenance, a distance of approximately 4.06 miles.

d. Load Zones & Postings Various Counties - Revise load restrictions on various bridges on the state highway system (1) Roadways

110416 The Texas Transportation Commission (commission) under provision of Texas CST Transportation Code §621.102, may set the maximum gross weight of a vehicle and its load, maximum gross weight of a combination of vehicles and loads, maximum axle load, or maximum wheel load that may be moved over a state highway or a farm or ranch road if the commission finds that heavier maximum weight would rapidly deteriorate or destroy the road. Pursuant to §621.102, a maximum weight or load may not exceed the maximum set by statute for that weight or load. This section does not apply to a vehicle delivering groceries, farm products, or liquefied petroleum gas. An engineering and traffic investigation has been made on the state highway system to determine and fix the maximum loads to be transported or moved on, over or upon the roads of the highway system. It has been determined from this investigation that the loads on certain sections of roads of the state highway system should be restricted or previous restrictions should be revised or removed. IT IS THEREFORE ORDERED by the commission that the maximum load limits which may be transported or moved on, over or upon the roads described in the Exhibits be fixed, revised, or removed as set forth therein, superseding any portion of a previous action in conflict. The executive director shall proceed with the erection, revision or removal of signs as appropriate, making the removal of this load limitation effective and operative. Note: Exhibits A and B on file with minute order clerk. January 26, 2006 477

(2) Bridges

110417 The Texas Transportation Commission (commission) under provision of BRG V.T.C.A., Transportation Code, §621.102, may set the maximum gross weight of a vehicle and its load, maximum gross weight of a combination of vehicles and loads, maximum axle load, or maximum wheel load that may be moved over a state highway or a farm or ranch road if the commission finds that heavier maximum weight would rapidly deteriorate or destroy the road or a bridge along the road. Pursuant to §621.102, a maximum weight or load may not exceed the maximum set by statute for that weight or load. This section does not apply to a vehicle delivering groceries, farm products, or liquefied petroleum gas. An engineering and traffic investigation has been made to determine and fix the maximum loads that may be moved over the state highway system. It has been determined from this investigation that the loads on certain bridges of the state highway system should be restricted or previous restrictions should be revised or removed. IT IS THEREFORE ORDERED by the commission that the maximum load limits which may be moved over the bridges described in Exhibits A and B be placed, revised or removed as set forth therein, superseding any portion of previous action in conflict. The executive director shall proceed with the revision of signs as appropriate, making the placement, revision, or removal of these load limitations effective and operative. Note: Exhibits A and B on file with minute order clerk.

e. Right of Way Dispositions and Donations (1) Dallam County – US 87 at FM 3110, southeast of Texline – Consider the exchange of drainage easements

110418 In DALLAM COUNTY, on US 87, the State of Texas (state) acquired an ROW easement interest in certain land needed for highway drainage purposes by instrument recorded in Volume 129, Page 90, Deed Records of Dallam County, Texas. A portion of the easement (surplus easement), described in Exhibit A, is no longer needed for a state highway purpose. In accordance with V.T.C.A., Transportation Code, Chapter 202, Subchapter B, the Texas Transportation Commission (commission) may recommend the exchange of a surplus easement as partial or full consideration for other land needed by the state for highway purposes. Gerald Swecker and wife, Mary Swecker, (owners) have conveyed to the state an easement interest in land needed for highway drainage purposes (new easement), described in Exhibit B. The owners are also the owners of the fee underlying the surplus easement. The owners have requested that the surplus easement be released and will donate to the state the $121 difference in value between the value of the surplus easement and that of the new easement. January 26, 2006 478

It is the opinion of the commission that it is proper and correct that the state release its interest in the surplus easement in exchange and as consideration for the conveyance of the new easement and $121 donation to the state. NOW, THEREFORE, the commission finds that the surplus easement is no longer needed for a state highway purpose and recommends, subject to approval by the attorney general, that the Governor of Texas execute a proper instrument releasing the state’s rights and interest in the surplus easement in exchange and as consideration for the conveyance of the new easement and the $121 donation to the state. Note: Exhibits A and B on file with minute order clerk.

(2) Fort Bend County – FM 1463 at Crossover Road southwest of Katy - Consider the sale of surplus right of way

110419 In FORT BEND COUNTY, on FARM TO MARKET ROAD 1463, the State of ROW Texas (state) acquired certain land needed for highway purposes by instruments recorded in Volume 275, Pages 526 and 531, Deed Records of Fort Bend County, Texas. A portion of the land (surplus land), described in Exhibit A, is no longer needed for a state highway purpose. In accordance with V.T.C.A., Transportation Code, Chapter 202, Subchapter B, the Texas Transportation Commission (commission) may recommend the sale of surplus land to the abutting landowner. JDC/Firethorne, Ltd., a Texas limited partnership, is the abutting landowner and has requested that the surplus land be sold to the partnership for $75,613. The commission finds $75,613 to be a fair and reasonable value for the state’s rights, title and interest in the surplus land. NOW, THEREFORE, in accordance with V.T.C.A., Transportation Code, Chapter 202, Subchapter B, the commission finds that the surplus land is no longer needed for a state highway purpose and recommends, subject to approval by the attorney general, that the Governor of Texas execute a proper instrument conveying all of the state’s rights, title and interest in the surplus land to JDC/Firethorne, Ltd., a Texas limited partnership, for $75,613; SAVE AND EXCEPT, however, there is excepted and reserved herefrom all of the state’s rights, titles and interests, if any, in and to all of the oil, gas, sulphur and other minerals, of every kind and character, in, on, under and that may be produced from the surplus land. Note: Exhibit A on file with minute order clerk.

(3) Tarrant County – FM 157 at the Trinity River in Arlington – Consider the removal of right of way from the state highway system and transfer of title to the City of Arlington

110420 In TARRANT COUNTY, on FARM TO MARKET ROAD 157, the State of ROW Texas (state) acquired certain land needed for highway purposes by instruments recorded in Volume 1913, Page 120; Volume 1950, Page 554; and Volume 3654, Page 471, Deed Records, Tarrant County, Texas. January 26, 2006 479

A portion of the land (surplus land), described in Exhibits A-1, A-2 and A-3, is no longer needed for a state highway purpose. In accordance with V.T.C.A., Transportation Code, Chapter 202, Subchapter B, the Texas Transportation Commission (commission) may waive payment for real property transferred to a governmental entity if the estimated cost of future maintenance on the property equals or exceeds the fair value of the property. The fair value of the surplus land has been determined to be $55,675, and the state’s costs for maintenance over the next 17 years is estimated to be $58,202. The City of Arlington has requested that the surplus land be transferred to the city in consideration of the savings to the state of future maintenance costs, since the future maintenance costs exceed the value of the surplus land by $2,527. The commission finds $55,675 to be a fair and reasonable value of the state’s rights, title and interest in the surplus land and recommends that the state transfer the surplus land to the city. NOW, THEREFORE, the commission finds that the surplus land is no longer needed for a state highway purpose and recommends, subject to approval by the attorney general, that the Governor of Texas execute a proper instrument transferring all of the state’s rights, title, and interest in the surplus land to the City of Arlington in consideration of the savings to the state of future maintenance costs; SAVE AND EXCEPT, however, there is excepted and reserved herefrom all of the state’s rights, titles and interests, if any, in and to all of the oil, gas, sulphur and other minerals, of every kind and character, in, on, under and that may be produced from the surplus land. FURTHER, IT IS ORDERED by the commission that the surplus land is removed from the state highway system and returned to the city for control, jurisdiction and maintenance. Note: Exhibits A-1 through A-3 on file with minute order clerk.

(4) Tarrant County – US 377 near Denton County line – Consider the donation of 1.187 acres of land for a highway improvement project

110421 In TARRANT COUNTY, on US 377, from 1.0 mile south of the Denton County ROW line to Keller Hicks Road, the Texas Department of Transportation (department) is acquiring the right of way for a highway improvement project. V.T.C.A., Transportation Code, §201.206, authorizes the department to accept donations of real property for the purpose of carrying out its functions and duties. V.T.C.A., Government Code, Chapter 575, requires the Texas Transportation Commission (commission) to accept a gift or donation valued at $500 or more by majority vote at an open meeting. AIL Investment, LP (owner) is the owner of the property described in Exhibit A. The owner wants to donate this property, estimated at $177,200, to the department for a highway improvement project to reconstruct US 377. January 26, 2006 480

The owner is not subject to department regulations or oversight, is not currently party to a contested case before the department, and is not interested in or likely to become interested in any contract, purchase, payment, or claim with or against the department. A donation agreement has been executed by the owner and tendered to the department for acceptance under Title 43, Texas Administrative Code, §1.504. IT IS THEREFORE ORDERED by the commission that the executive director is hereby authorized to accept the donation of real property, as described in Exhibits A and B, and the executive director or the director’s designee is authorized and directed to sign and execute a donation agreement with the owner, in accordance with Title 43, Texas Administrative Code, §1.504. Note: Exhibits A and B on file with minute order clerk.

f. Speed Zones Various Counties - Establish or alter regulatory and construction speed zones on various sections of highways in the state

110422 Transportation Code, §545.352 establishes prima facie reasonable and prudent TRF speed limits for various categories of public roads, streets and highways. Transportation Code, §545.353 empowers the Texas Transportation Commission (commission) to alter those prima facie limits on any part of the state highway system as determined from the results of an engineering and traffic investigation conducted according to the procedures adopted by the commission. The Texas Department of Transportation (department) has conducted the prescribed engineering and traffic investigations to determine reasonable and safe prima facie maximum speed limits for those segments of the state highway system shown in Exhibits A and B. Exhibit A lists construction speed zones in effect when signs are displayed within construction projects. The completion and/or acceptance of each project shall cancel the provision of this minute order applying to said project and any remaining construction speed zone signs shall be removed. Exhibit B lists speed zones for sections of highways where engineering and traffic investigations justify the need to alter the speeds. It has also been determined that speed limits on various segments of the state highway system, previously established by the commission by minute order and listed in Exhibit C, are no longer necessary or have been incorporated by cities which have the authority to set speed limits on these sections of highways. The department, in consultation with the Texas Commission on Environmental Quality, has also determined that the environmental speed limit on the segment of FARM TO MARKET ROAD 1093 established by Minute Order 109064, dated October 31, 2002, and listed in Exhibit D, is no longer necessary. January 26, 2006 481

IT IS THEREFORE ORDERED by the commission that the reasonable and safe prima facie maximum speed limits determined in accordance with the department's "Procedures for Establishing Speed Zones" and shown on the attached Exhibits A and B are declared as tabulated in those exhibits. The executive director is directed to implement this order for control and enforcement purposes by the erection of appropriate signs showing the prima facie maximum speed limits. IT IS FURTHER ORDERED that a provision of any prior order by the commission which is in conflict with a provision of this order is superseded to the extent of that conflict, and that the portions of minute orders establishing speed zones shown on the attached Exhibits C and D are canceled. Note: Exhibits A through D on file with minute order clerk.

ITEM 13. Executive Session Pursuant to Government Code, Chapter 551 a. Section 551.071 - Consultation with and advice from legal counsel b. Section 551.072 - Discussion of real property purchase, exchange, lease, donations c. Section 551.074 - Discuss the evaluation, designation, reassignment, and duties of department personnel, including district engineers, division directors, and office directors.

The commission did not meet in executive session.

OPEN COMMENT PERIOD - The commission received comments from Waller County resident Alice McGuffie regarding right of way acquisition.

Commissioner Houghton made a motion, seconded by Commissioner Johnson and the commissioners approved adjourning the meeting. January 26, 2006 482

The regular meeting of the Texas Transportation Commission adjourned at 2:57 p.m.

APPROVED:

______Ric Williamson, Chair Texas Transportation Commission

xxx

I hereby certify that the above and foregoing pages constitute the full, true and correct record of all proceedings and official records of the Texas Transportation Commission at its regular meeting on January 26, 2006, in Conroe, Texas.

______Dee Hernandez, Chief Minute Clerk Texas Department of Transportation