Current through Reg. 49, No. 38; September 20, 2024
(a)
Board Participation. Unless otherwise directed by legislation, the board will
only use the SWIFT or SWIRFT to provide financial assistance for all or a part
of the cost to construct the excess capacity of a water plan project where:
(1) at least 20 percent of the total facility
capacity of the proposed project will serve existing need; or
(2) the applicant will finance at least 20
percent of the total project cost from sources other than Board Participation
from the SWIFT and SWIRFT.
(b) Application for Assistance. In addition
to the information required in §
363.12
of this chapter (relating to General, Legal, and Fiscal Information) and §
363.1307
of this subchapter (relating to Pre-design Funding Option) and any other
information that may be required by the executive administrator or the board,
the applicant shall provide:
(1) a proposed
schedule for purchase of the board's interest in the project;
(2) information to demonstrate the findings
required in §
363.1309 of
this subchapter (relating to Findings Required);
(3) if payment under the master agreement is
based either wholly or in part from revenues of contracts with others, a copy
of any actual or proposed contracts under which applicant's gross income is
expected to accrue. Prior to release of funds, an applicant shall submit
executed copies of such contracts to the executive administrator; and
(4) if an election is required by law to
authorize participation in the project, the executive administrator may require
applicant to provide the election date and election results as to each
proposition necessary for the participation of the applicant as part of the
application.
(c)
Determination. The board may provide funding for board participation from SWIFT
and SWIRFT when the information available to the board is sufficient for the
board to determine that:
(1) it is reasonable
to expect that the state will recover its investment in the facility based upon
a determination that the revenue to be generated by the projected number of
customers served by the facility will be sufficient to purchase the excess
capacity owned by the state;
(2)
the estimated cost of the facility as set forth in the application exceeds the
current financing capabilities of the area to be served by the facility based
on a review of the existing rates of the applicant available for payment of the
facility collected from the number of connections at the end of construction
and other revenues available for payment of the facility;
(3) the optimum regional development cannot
be reasonably financed by local interests based on an assessment of the
estimated cost to construct the alternate facility and the revenue to be
generated by the projected number of customers of the facility;
(4) the public interest will be served by
acquisition of the facility based on a determination that the cost of the
facility to the public is reduced by the board's participation in the facility;
and
(5) the facility to be
constructed or reconstructed contemplates the optimum regional development
which is reasonably required under all existing circumstances of the site based
on a determination that design capacity of the components of the facility are
sufficient to meet the foreseeable needs of the area over the useful life of
the facility.
(d) Master
Agreement. The board and the political subdivision shall enter into and execute
a master agreement the text of which shall include, but not be limited to, the
responsibilities, duties, and liabilities of each party, including the
responsibility of a designated political subdivision to assure that proper
procedures are observed in advertising for bids and selecting a bidder to
construct the project; the board's cost of acquisition; procedures for
disbursement of board funds for the project; recognition of a political
subdivision's right of first refusal prior to any sale of the board's interest
in the project; a non-competitive clause; a schedule for purchase of the
board's interest in the project by the political subdivision; and any other
provisions deemed appropriate and necessary by the board.
(e) Construction. On projects to be
constructed or enlarged by a political subdivision or subdivisions, one
political subdivision may be designated under an agreement with the board to
act as manager for the project and perform the functions customarily performed
by a manager-owner.
(f)
Disbursement of State Funds. State funds expended for the acquisition and/or
development of facilities in a project shall be disbursed in accordance with
the provisions of the master agreement and any other contracts by the board
pursuant thereto.
(g) Acquisition
of Board's Ownership Interest.
(1) A
prospective political subdivision purchaser of the board's ownership interest
in a facility or of the use of such board interest other than under terms
specified in the master agreement shall submit an application in the form and
number prescribed by the executive administrator. The executive administrator
may request any additional information needed to evaluate the application, and
may return any incomplete application.
(2) Upon receipt of an application by a
prospective purchaser of the board's ownership interest in a facility or use of
the facility, the board will send notice of its receipt by regular United
States mail to all co-owners of the facility, and any users of the facility or
water from the facility.
(3) The
application shall be scheduled on the board's agenda, and representatives of
the prospective purchaser and other interested parties shall be notified of the
time of the meeting. At the conclusion of the meeting to consider the project,
the board may resolve to approve, disapprove, approve with conditions, or
continue consideration of the application. A commitment will include a date
after which the financial assistance will no longer be available. That date
shall be the end of that month which is twelve months from the month of board
commitment.
(4) If the board
approves the application, a transfer resolution will be adopted which shall
prescribe the terms and conditions necessary for the sale, transfer, or lease,
if such terms have not been specified in the master agreement between the board
and political subdivision.
(5)
Before the board's adoption of the transfer resolution, the executive
administrator shall negotiate a transfer agreement with the prospective
purchaser regarding the sale, transfer, or lease of board-owned interests. The
transfer agreement shall include the interest transferred, the character of the
interest transferred, the formula used to compute the price to be paid for the
facilities to be acquired, provisions governing lease or rental of facilities,
a hold harmless clause, recognition of the right of first refusal of any of the
participating political subdivisions, a clause stating the conditions under
which the contract may be terminated, and other provisions appropriate to the
subject of the transfer agreement including provisions setting standards for
operation and maintenance of the project. The attorney general of Texas shall
approve as to legality any contract authorized under this subchapter.
