Current through Reg. 49, No. 38; September 20, 2024
(a)
Form of the Transcript of Proceedings. The transcript submitted to the OAG must
conform to the following requirements unless such requirements are expressly
negated under applicable law:
(1) each
transcript shall be submitted in a loose-leaf binder or expanding file
folder;
(2) transcript page size
shall not exceed 8-1/2 by 11 inches, and each line of each page should be
entirely legible (oversize documents, such as maps and charts, should be folded
within the 8-1/2 by 11 inch requirement);
(3) all transcripts shall contain a table of
contents keyed to right side tab numbers;
(4) each transcript shall be arranged in
chronological order or in some other consistent, logical arrangement that will
permit an efficient review and shall be labeled in a manner consistent with the
table of contents; and
(5) the
machine-readable/searchable electronic copy of the transcript of proceedings
should be in the format of a single file containing all information and
exhibits in the hard copy transcript presented in the order they appear in the
hard copy, and should be provided on a CD or DVD clearly labeled with the name
of the toll project entity, project name, and project location.
(b) Contents of Transcript. The
transcript shall include the following, as applicable:
(1) the contact name(s), address(es), e-mail
address(es), and phone number(s) for the appropriate representative(s) of the
toll project entity to whom the legal sufficiency determination should be
issued, and to whom all other inquiries, notifications, and correspondence
regarding the proposed CDA should addressed;
(2) a written overview of the CDA that
includes:
(A) a summary description of the
project;
(B) identification of each
entity that is a signatory to the CDA and to each ancillary
agreement;
(C) citation to the
applicable statutes and rules that establish the legal authority for each
signatory to enter into the CDA and each ancillary agreement;
(D) a description of the procurement process
used;
(E) a summary description of
the CDA and its key terms;
(F) an
overview of the method of finance for the CDA, including a summary description
of each financial document included in the transcript of proceedings;
(G) a summary that includes any other
information that may be material to the legal sufficiency
determination;
(3) a
list identifying the various approvals required as a condition precedent to the
CDA and each ancillary agreement, including the sequence and record of dates
when such approvals occurred or are expected to occur;
(4) citations to the applicable statutes,
rules or other legal authority defining the procurement method and requirements
for the CDA and each ancillary agreement;
(5) citations to the applicable statutes,
rules or other legal authority requiring public notice, or public hearings as
part of the procurement process, accompanied by documentation evidencing
compliance with all such requirements;
(6) a machine-readable/searchable electronic
copy of any Request for Qualifications (RFQ), Request for Detailed Proposals
(RFDP), or other applicable document soliciting offers to contract for the CDA
and ancillary agreements;
(7)
citations to the applicable statutes, rules or other legal authority requiring
public notice or public hearings required as a condition precedent to execution
of the CDA and any ancillary agreements, accompanied by documentation
evidencing compliance with all such requirements;
(8) a copy of the CDA;
(9) copies of any ancillary agreements to the
CDA;
(10) evidence of signature
authority for those executing documents on behalf of the toll project
entity;
(11) to the extent that any
funds are used with the project that were made available as the result of the
American Recovery and Reinvestment Act of 2009 (Pub.L. 111-5),
evidence of compliance with all applicable state and federal law, rules, and
regulations related to the use of such funds;
(12) copies of all opinion(s) of counsel
given in connection with the transaction, which may be drafts in substantially
final form;
(13) the toll project
entity's general certification of the following:
(A) certification of the toll project
entity's authority to enter into the CDA and ancillary agreements;
(B) certification that documents submitted by
the toll project entity constitute legal, valid, and binding obligations of the
entity enforceable in accordance with their terms;
(C) certification that the terms of the
transcript documents and the performance of toll project entity's obligations
thereunder are not in conflict with and do not constitute a breach of or a
default under the constitution or the laws of the United States or the State of
Texas, or the terms and provisions of any instrument or restriction to which
toll project entity is presently a party to or by which the toll project entity
is presently subject;
(D)
certification that the toll project entity has received all permits and
approvals of any governmental authority, board, agency or commission having
jurisdiction that are required to be obtained by the toll project entity prior
to the execution, delivery and performance by toll project entity of the
transcript documents;
(E)
certification that the toll project entity has complied with all applicable
publication and procurement requirements associated with the transcript
documents, including but not limited to, any applicable requirements for the
use of competitive procurement methods;
(F) certification that the toll project
entity will retain ownership to the project under the terms of the transcript
documents as required by law, and providing citation to the applicable
provision(s) of the Texas Transportation Code;
(G) certification that the transcript
documents are being entered into and the underlying project is being undertaken
in compliance with applicable provision(s) of the Texas Transportation Code,
providing citations and including an explanation of why the CDA is authorized
under any applicable statutory moratorium;
(H) certification that there is no action,
suit, hearing, proceeding, inquiry, investigation or litigation of any nature,
at law or in equity, before or by any court, public board, agency or body,
pending or threatened against or affecting the toll project entity (or to the
best of the authorized signatory's knowledge any basis therefore) wherein an
unfavorable decision, ruling or finding would, in any way, materially adversely
affect:
(i) the creation, organization,
existence or powers of the toll project entity or the title or authority of the
officers and commissioners of the toll project entity;
(ii) the transactions contemplated by the
transcript documents; or
(iii) the
validity or enforceability of the transcript documents;
(I) certification that the authorization,
approval and execution of the transcript documents, and all other proceedings
of the toll project entity relating to the transcript documents, have been
performed in accordance with all applicable open meetings laws and all other
applicable laws, rules and regulations of the State of Texas;
(J) the identification of the duly appointed
and qualified incumbents of the offices of the toll project entity and
certification that the persons named were, on the date or dates of all actions
taken in connection with the execution of the transcript documents and any
related documents, the duly appointed and qualified incumbents of the offices
of the toll project entity;
(K)
certification that as of the date of the certificate, the transcript documents
are substantially in the form approved by the governing body of toll project
entity; and
(L) certification to
the Attorney General of the State of Texas that, as of the date of the general
certificate, and as of the date of his completion of the legal sufficiency
review and all other matters certified therein, the contents of the transcript
of proceedings shall be deemed for all purposes to be true, accurate and
correct on and as of that date, and as of the delivery date of the transcript
of proceedings.
(c) If the toll project entity cannot provide
the required certifications as of the date of the general certificate, or as of
completion of the legal sufficiency review, then toll project entity, through
an officer, shall promptly provide written explanation to the OAG.
(d) The OAG may require a toll project entity
to timely provide such other information as may be deemed necessary by the OAG,
in its sole discretion, to support a determination that a comprehensive
development agreement is legally sufficient for the purposes of Texas
Transportation Code §
RSA
371.051.
(e) Toll project entities anticipating the
OAG's review of a CDA that may contain novel or uncommon characteristics or
transactions that could be likely to require variance from these requirements
are required to contact the OAG to discuss the possible variances prior to
submission of the transcript of proceedings.
(f) The transcript requirements described by
this section may be waived or modified by the OAG, in its sole discretion, to
the extent the OAG is satisfied that the OAG can issue an appropriate legal
sufficiency determination.
(g) The
transcript of proceedings and other information submitted to the OAG by a toll
project entity are subject to the Texas Public Information Act, Chapter 552 of
the Texas Government Code ("the Act"). All transcripts and other information
shall be presumed to be subject to disclosure unless a specific exception to
disclosure under the Act applies. If it is necessary for a toll project entity
to include proprietary or otherwise confidential information in its submission,
that particular information should be clearly identified and reference shall be
made to the specific exception to disclosure in the Act. A blanket claim that
the entire transcript is protected from disclosure because it may contain some
proprietary information is not acceptable, and will not render the entire
transcript confidential. Any information, which is not clearly identified as
proprietary or confidential shall be deemed to be subject to disclosure
pursuant to the Act.
