Texas Department of Transportation Commission Meeting

Dewitt C. Greer Building
125 East 11th Street
Austin, Texas

9:00 a.m. Thursday, September 25, 2003

COMMISSION MEMBERS:

JOHN W. JOHNSON, Chairman
ROBERT L. NICHOLS
RIC WILLIAMSON
 

STAFF:

MIKE W. BEHRENS, Executive Director
RICHARD MONROE, General Counsel
TAMMY STONE, Executive Assistant to the Deputy Executive Director
DEE HERNANDEZ, Minute Order Clerk

MR. JOHNSON: Good morning. It is 9:14 a.m. and I would like to call this meeting of the Texas Transportation Commission to order. Welcome to our September meeting. It is indeed a pleasure to have you here this morning.

I'll note for the record that public notice of this meeting, containing all items on the agenda, was filed with the Secretary of State at 1:42 p.m. on September 17, 2003.

It's our tradition before we start these meetings that I defer to my colleagues and ask them if they have any comments that they would like to make.

Mr. Nichols?

MR. NICHOLS: Just welcome. Drive careful. I didn't really have anything.

MR. JOHNSON: Ric?

MR. WILLIAMSON: If I may tell a joke? If I'm Mr. Nichols, I've got to tell a joke.

(General laughter.)

MR. WILLIAMSON: Welcome; drive safe -- that's a good message.

MR. JOHNSON: No joke about Mr. Nichols?

MR. WILLIAMSON: Well, no, but thank you for the opportunity.

MR. JOHNSON: I wanted to congratulate our Travel Division. In the last 90 days they've conducted a caravan around the state with young people visiting cities and campuses in 21 different locations, I believe, and they carried with them the "Don't Mess With Texas" slogan.

It was a "Don't Mess with Texas" campaign and it was very well received, and hopefully we can continue to plant and nurture the idea that litter is an expensive proposition in a state as great as Texas is. There is no place for litter except in receptacles.

They also yesterday thanked the people who have volunteered under the "Adopt a Highway" program which was started in Texas in our Tyler District, and is now not only a nationwide phenomenon but has been carried to other countries where corporations and civic groups, churches, the Scouts have taken two-mile segments of many of our highways and have vowed and pledged and volunteered to keep them free of litter. And yesterday we had a marvelous luncheon thanking those people, and the Travel Division has done a great job with that program.

And thirdly, the Texas Highways magazine which is under our Travel Division and Doris Howdeshell has had a slightly positive year and they've done so without cutting cost or quality. They have actually increased income and it now operates at a slight surplus, and so they're doing great work on your behalf and carrying the message of this great state, and I wanted to congratulate them.

Before we begin the business portion of the meeting, I'd like to remind everyone that if you wish to address the commission, please fill out a card at the registration table in the lobby. To comment on an agenda item, we would ask that you fill out a yellow card and identify the agenda item.

And if it is not an agenda item, we would ask that you fill out a blue card for that purpose and we will take your comments at the open comment period at the end of the meeting. And regardless of the color of the card, we would ask that you respect the three-minute allowance for each speaker. We would also ask that you place your cell phones and pagers in the silent mode.

And we will begin the meeting with the approval of the minutes from our August meeting. Is there a motion to adopt the minutes as presented?

MR. WILLIAMSON: So moved.

MR. NICHOLS: Second.

MR. JOHNSON: All in favor, signify by saying aye.

(A chorus of ayes.)

MR. JOHNSON: Motion carries.

Mike, before I turn the bulk of the agenda over to you, we've had a request from two of our state representatives to speak. They are in session, I believe, and very busy and we like to move them through so they can get back to the work of the people who have sent them down here to work, and we would ask that they come forward.

I see Chairman Krusee in the front row, and we're delighted you're here, Representative Krusee.

MR. KRUSEE: Thank you, Mr. Chairman. Good morning, commissioners.

I want to talk about two things. The first one is to congratulate this commission on your vision and on your leadership. We passed Prop 14 and that is something that started not with this session but years ago with your leadership.

It's been a long time coming. The first time that I was ever concerned about transportation was when Dell Computers decided to expand over into Tennessee -- your old home state, I think. The first time I got excited about transportation was when I went to that meeting the governor had over at the auditorium at the Capitol -- and several of you were there -- Mike, you were there -- and explained the Trans-Texas Corridor, and I saw something I'd never seen before, that type of vision and leadership. So thank you. It wouldn't have happened without you.

Now what's happening, you know, Robert, we see each other everywhere we go. Another thing I want to do, I want to thank you. It doesn't matter where I go. I go to Dallas; I go to San Antonio; I'm here in Austin. I see one of you commissioners out there preaching the message. You're there, you're active, and I think you get paid probably even less than I do to do it. So thank you for that.

MR. JOHNSON: See if you can do something about that.

(General laughter.)

MR. KRUSEE: When we give those speeches, the first thing I say to them is after a year of having to come up and give doom-and-gloom speeches about how we don't have any resources, it's nice to come forward to communities and give them some good news.

We funded the Texas Mobility Fund, $250 million which should translate into about $3 billion worth of bonds, and the voters just approved another $3 billion, so it's a total of $6 billion. My fear has been that there is going to be a figurative line outside the Greer Building saying: Remember all those projects we've been begging for; now you've got $6 billion, give them to us.

And so the second point I wanted to make is that although when you look at 3588, it gave both TxDOT and TTA and also local communities all sorts of tools mostly to build toll roads and finance toll roads, but it really didn't, by itself, fund those roads.

And then you look at it as a separate issue: we funded TMF, we passed the bonds, but we didn't tell you how to spend that money, you can spend it any way you want. But I think when you look at the two together, it's rather clear the direction this commission has been going and it's rather clear to the intention of the legislature, and that is that we want those bonds to be used for toll equity.

And I think there are a number of good reasons why we should do that, and the first one is simply that we can leverage the money. We can take that $6 billion and if a community comes to us and says we need 50 percent toll equity, and if you use those bonds to provide that equity, we can turn that $6 billion into $12 billion worth of roads.

Secondly, you listen to people like Perryman talk about what are the advantages, what happens when you spend transportation, and he says for every billion dollars you spend, you get about 50,000 jobs. So with that $6 billion we could get 300,000 jobs, or if we leverage that money into toll roads, we can get 600,000 jobs.

And then lastly, I think you look at the fact that you could go out and you could spend that money on $6 billion worth of projects here and there around the state, and then after you were done you'd have to maintain $6 billion worth of new projects, and you know what that does to your budget.

But if you put them into toll roads that the local metropolitan areas do, they'll be responsible for the maintenance and it will free up all the more money for you to provide for other free roads in the state of Texas.

Again, I appreciate your leadership and I look forward to working with you.

MR. WILLIAMSON: Is there any truth -- we've just picked this up in the last couple of days -- that while you are over there redistricting your congressional seats, is there any truth that you are also preparing new TxDOT district lines?

MR. KRUSEE: Not that I'm aware of.

MR. WILLIAMSON: Mike, I gave you a great opportunity to play with Behrens over here.

MR. KRUSEE: So I should have played into that?

MR. WILLIAMSON: You should have said, Well, now, I didn't think we were going to disclose that until next week. Then we could have watched Mike go three feet in the air from a standing stop.

MR. KRUSEE: You had to give me the sign, Ric. I would have played along.

(General laughter.)

MR. WILLIAMSON: May I, Chairman?

MR. JOHNSON: Yes.

MR. WILLIAMSON: You were kind to recognize us for the events of the last couple of years, but the reality is -- and everyone in the room knows it -- that we've been partners in selling this and were it not for your -- some would use the word "strong," some would use the word "zealous" leadership in transportation, none of that stuff would have passed.

And so for every small step we took, we owe an awful lot to you for helping us get there. The steps we took were steps we took together. So speaking for myself, I thank you for your contribution as well.

One of the difficulties I'm finding, moving around the state, for those parts of the state that either are not familiar with tolling or are not ready to be familiar with tolling, it's very hard to explain that it's really not complicated: we either raise the gasoline tax or we collect tolls for using the roads.

If we raise the gasoline tax, except for the Ogden bonds that just got passed, there's no leveraging with the gasoline tax. If we take a gasoline tax and leverage it with toll debt and build toll roads, we can build more for less cash out of pocket.

Plus there is just the philosophical difference between those who would raise general taxes and let government distribute it and those who would collect user fees and let the market decide where the assets should be built, and that's just from a philosophical perspective we're not ever going to agree.

A good example is our friends in the Lower Rio Grande Valley who are very cautious or skeptical about toll assets in the Valley as they maintain that they haven't received their fair share -- whatever that is -- of gas tax money.

So perhaps you can help us figure out ways -- you know, you and I, our strength is we're very direct and we have sharp edges and we don't really much care who we cut, and sometimes that's not good, that's a weakness sometimes. For you and I it's real simple: if you don't want to pay to use the road, then you don't pay to use the road -- you know, what could be more simple than that?

But for others that the commission has to deal with, it's not quite that simple, and I think the truth is we need continuing leadership at the legislative and at the gubernatorial level to help people understand that Texas is kind of at a crossroads: we can be a general government state and raise everybody's taxes and let government cut up the pie, or we can be a market-driven state and continue to move towards user fees that allow consumers the option of using a particular asset to their own benefit or detriment. I see that as the biggest stumbling point.

You've watched the San Antonio experience -- in fact, I think you and Robert probably were just personally into the San Antonio experience, and the reality is at this moment in time, San Antonio, of all of our urban areas, probably has the best transportation system in the state.

They won't have the best transportation system in the state 20 years from now if they don't make some investment now, but they're uncomfortable with the notion of tolls in a lot of their areas. I understand maybe 1604 new lanes and 281 new lanes are starting to become a little bit more acceptable, but that's a good case in point.

We need probably some help in our own organization reinforcing with our administrative leadership that this really is a c change that's taken place in the state and we need to roll with it and we need our district engineers to roll with it and become aggressive on how we do these things.

My wife made the observation the other day: You won't make this deal work until you have a statewide electronic tolling system, the cards of which are distributed at the same time as the registry of your vehicle every year and everybody knows that wherever they are in Texas they may be entering a tolled road and their card will be picked up and they'll be sent a bill.

And she said, when you make it as user-friendly as the internet, then people will easily accept it. Just put a big old sign up there that says: The inside two lanes of 281 are $5 right now; if you go past this spot, you're paying five bucks -- just so everybody kind of knows.

So there's some challenges. You're right, together with the governor's leadership, your leadership and Mr. Ogden's leadership, our helping, we created a lot of tools, but they're just tools, they're not bags of money at the door.

I can't speak for John and Robert but I feel the same way as you: we're in the toll business if we want to build our state's infrastructure and we've just got to convince everybody from the Lower Rio Grande Valley to Weatherford that tolls are how we will expand in the future.

MR. KRUSEE: I think you make a good point. Although right now we're congratulating ourselves on the $6 billion worth of new money that we have, you know better than anyone that that's just a drop in the bucket compared to our needs, and pretty soon we've got to pick up the rhetoric and start talking about how we're going to fund TMF next session, another $250 million revenue stream annually.

MR. JOHNSON: Robert, did you have anything?

MR. NICHOLS: Yes. First of all, thank you for being here today and clarifying in front of everybody what your intent and wish for our way to pursue the leveraging of that money. We've said that together and in different committee meetings, but it's very helpful to have you in front of all of our staff to say that and some people who are in this room that come to these meetings.

I know we have thanked you before for the work that you did as chairman but I want to take every opportunity to thank you. Most people have no idea how many hours that you really spent working on that big bill and some of the grief.

It's tough to keep it together but you kept it together, you kept going forward, everybody worked together, and it happened. But you have not stopped there, and that's what I think is so exciting: you are enthusiastic about it.

I watched you last night talking about what's next, what you see may happen this next session and may not, but it was real obvious to that group last night that your thoughts on where to carry transportation and how these building blocks all work together, I can see the wheels turning. And thank you very much for your interest and support of transportation.

MR. KRUSEE: You're welcome, and thank you very much. I think it's very important that people around the state understand from the beginning that they don't get the wrong message and they think that they can come here to the commission and line up and ask for the money for whatever project they've been wanting for years and years, and that everyone understand very clearly that they've got to get their act together as a metropolitan region and make a proposal on how to do a toll road and how to use that money, how to leverage the scarce resources that this state has, and that we do regard this $6 billion as a scarce resource and we're not going to ladle it out.

MR. JOHNSON: Mr. Chairman, I'm going to echo much of what Ric and Robert said. One slight correction: Tennessee was only my home during my college years; I was born and will die a Texan and live all my intervening years here, except for college.

MR. KRUSEE: Did you go to Vanderbilt?

MR. JOHNSON: Yes, I did.

Your performance this last legislative session reminded me somewhat of the statue in New York City of Atlas with the world on his shoulders. You carried a lot of weight; most of it was transportation-related and from our perspective you did a great job, you and your colleagues.

But your leadership, as Robert mentioned, continues and that's what's so exciting is that, under Governor Perry and what you've been able to accomplish, this is not the issue du jour, the issue of the current moment. I mean, it's been recognized and will continue to be an issue that's going to take this state to its potential.

Four and a half years ago when I came into the position of being on the commission, I was very naive as to the importance of transportation and certainly surface transportation in this state, and you learn not only the importance of that but also how you need to partner multimodal-wise and all the various subgroups, whether they be in cities or counties or whatever, and they need to work together.

What you've accomplished in your leadership in this last legislative session, and these gentlemen on my right and my left, utilizing their resources and energy, is a great foundation, and as you've so eloquently pointed out, we need now to execute, and I think we're on the road to doing that. It's not one single moment in time, it needs to be continuous.

MR. KRUSEE: Thank you. And I think really to give credit to the correct person we should recognize Governor Perry and his leadership for someone who recognizes that a road is not just pavement; a road is the foundation of our quality of life in the state and of our economy, and it's not just about roads.

We have the luxury of mostly concentrating on roads and transportation infrastructure. The governor understands how that has to interact with a sound water policy so that we can develop, with a highered system that delivers a skilled workforce, with a fair tax system that is predictable for business to come into the state, and he juggles all those balls and we're a part of that team for him and I'm glad to be on your team. Thank you.

MR. JOHNSON: Well, thank you.

MR. WILLIAMSON: Thanks for coming; we appreciate it.

MR. JOHNSON: Representative Farabee. Thank you for joining us this morning. I know you have a busy schedule.

MR. FARABEE: Thank you, Mr. Chairman. It's great to be here. And commissioners and Mike, great to be here today. I want to thank you for the opportunity to come before you again and voice support for the Kell Freeway Interchange in Wichita Falls.

As you know, we in Wichita County and North Texas care greatly about this project. In fact, while it's an honor to be able to be in the legislature and serve the folks of North Texas -- and I know Senator Estes feels the same way, as does Representative Hardcastle -- I think it would be irresponsible of me if I didn't point out that other individuals have made the five-hour trip to be in Austin today, while not speaking, but to support me in making this request of you.

Those folks are: one that you know well, and that's Arnold Oliver --

MR. WILLIAMSON: Who?

(General laughter.)

MR. FARABEE: Also our mayor of Wichita Falls, Mayor William Altman, and one of his city council members and our city council members, Councilman Dan Shine; also our city planner for Wichita Falls, Mr. Steve Seese is with us.

And last, but surely not least, two individuals with the Texas Department of Transportation, the ones that are integral parts of our community -- you find them at service clubs making presentations and being great ambassadors for the transportation program in North Texas, which I appreciate because it takes some weight off of me when individuals come to me and say when are we going to take care of this or that -- and those are Joe Nelson and John Barton.

So we're very grateful to have them in North Texas and thank you for allowing them to be part of your TxDOT team. But they are here today, as well as myself, to ask that we think about the interchange. We're blessed with projects which have been approved by you and completed now, and that is the 287 overhead that's gone through town.

While some would be critics of the commerce that's below that may not be there, I can't tell you the number of accidents that have not occurred because it takes those large trucks and other traffic that would go through the city and really weren't interested in those storefronts below and takes them through our community and sends them on their way.

And also the extension of Highway 82, what we call Kell Freeway -- one of our founding fathers for our community -- we're very grateful for the extension. I routinely take my child out to the southwest part of town while I live practically on the other side of Wichita Falls, and it's cut that travel time so that he doesn't yell at me for being late to soccer practice. So we're very grateful for those projects.

Where the problem comes in, though, is that US 82 and 287, the overhead, if you don't know what you're doing as you come from the north to the south and you don't stay down below and work your way through the lights, the interchange to Highway 82 is very difficult and leaves a bad taste in folks' mouths as far as their travel experience through North Texas. Now, that's the surface; there's more to it.

We believe that this would enhance the travel system for North Texas and all of Texas because it may relieve traffic from the I-35 corridor if they knew that that was going to be a simple turn to make instead of going on and not using 82 or other highways off that route.

Locally, we've committed 30 percent of this project and we will continue to leave that money and resource on the table, as we believe in a partnership in funding of a project of this magnitude. As you know, TxDOT staff has worked tirelessly on this project and we have been in front of you three times now in discussing the need for this particular project.

So I think you can see, as you've heard from our county judge, Judge Gossom, this is our priority; this is our focal point. I don't think we're losing message. This is our focal point.

So I guess with that being said, I would ask you, please, as we work through the projects over the coming year, please know that we in North Texas, and Wichita Falls specifically, keep this as our focal point.

And I say that, I know Senator Estes would say the same, and it's an honor to have this privilege to speak before you today on behalf of those individuals who have made the trip to be here only to stand behind me and say, yes, that's what we want.

I'd be happy to answer any questions.

MR. JOHNSON: Ric, do you have anything?

MR. WILLIAMSON: No. We appreciate you being here. It's good to see you, as always.

MR. FARABEE: Thank you.

MR. JOHNSON: Robert?

MR. NICHOLS: No, I didn't have anything. Thank you.

MR. JOHNSON: Thank you, Representative. Appreciate your taking the time and bringing that message.

Mr. Behrens, we'll turn the meeting to you for the remainder of the agenda.

MR. BEHRENS: Mr. Chairman, first this morning we have a proposed resolution that comes before you concerning Commute Solutions, and I'd like to read the proposed resolution.

"Whereas, the goal of Commute Solutions is to keep the Capital Area moving towards better mobility and air quality by educating the public about commute options and available transportation programs, and by improving air quality through reductions in ozone-forming emissions; and

"Whereas, Commute Solutions Month is a celebration established to encourage commuters, employees and the general public to focus on alternative transportation strategies; and

"Whereas, Commute Solutions is a partnership of Capital Area Metropolitan Planning Organization, Capital Metropolitan Transportation Authority, City of Austin, CLEAN AIR Force, Downtown Austin Alliance, Texas Commission on Environmental Quality and the Austin District of the Texas Department of Transportation; and

"Whereas, the purpose of the Commute Solutions Coalition is to provide a "one-stop" alternative transportation resource in the Capital area for both commuters and businesses; and to provide advice, answers, and assistance on commuting options.

Now, therefore be it resolved that on the 25th day of September, 2003, the Texas Transportation Commission commends the Capital Area Commute Solutions Coalition on their efforts to promote alternative transportation strategies through Commute Solutions Month, October 2003."

And I think we have Mr. Trevino of CAMPO is here to address the commission before we ask your approval.

MR. TREVINO: Good morning, Chairman Johnson, Commissioner Nichols, Commissioner Williamson, Mr. Behrens, Madam. I am John Trevino; I am a member of both the Capital Metro Board of Directors and the CAMPO Transportation Policy Board. I am pleased to accept the resolution from the commission in honor of the Capital Area Commute Solutions Month in October.

Commute Solutions is a partnership between CAMPO, Capital Metro and other agencies. Our goal is to encourage people to use alternative transportation modes in order to increase mobility. This includes transit, car pooling, van pooling, tele-working, biking, and walking.

Last year Commute Solutions Month helped the Capital Area reduce congestion by 68,000 vehicle miles traveled and reduced air pollution emissions by over 400 pounds. Capital Metro is also committed to increasing transit ridership and ride sharing through expansion of our transit system and by working to implement managed lanes of our highway systems. These expansions will make the Commute Solutions program even more successful.

Again, I thank you for the recognition and we look forward to another successful Commute Solutions month. Thank you, Mr. Chairman.

MR. JOHNSON: Thank you, Mr. Trevino.

Is there a motion to approve the resolution?

MR. WILLIAMSON: So moved.

MR. NICHOLS: Second.

MR. JOHNSON: All in favor, signify by saying aye.

(A chorus of ayes.)

MR. JOHNSON: Motion carries.

(Pause for photographs.)

MR. BEHRENS: Agenda item number 3, Aviation. Dave Fulton will present the airport improvement projects for this month.

MR. FULTON: Thank you, Mike, commissioners. For the record, my name is David Fulton, director of the TxDOT Aviation Division.

This minute order contains a request for grant funding approval for five airport improvement projects. The total estimated cost of all requests, as shown in Exhibit A, is approximately $1.5 million, about $600,000 Federal, $800,000 State and $160,000 in local funding. A public hearing was held on September 8 of this year; no comments were received. We would recommend approval of this minute order.

MR. JOHNSON: Any questions?

MR. WILLIAMSON: Is any of this money going to McKinney?

MR. FULTON: No, sir.

MR. NICHOLS: How about Jacksonville?

MR. JOHNSON: That was last month.

MR. NICHOLS: Not Jacksonville, McKinney.

(General laughter.)

MR. WILLIAMSON: So moved.

MR. NICHOLS: Second.

MR. JOHNSON: All in favor, signify by saying aye.

(A chorus of ayes.)

MR. JOHNSON: Motion carries.

MR. WILLIAMSON: It's just that I'm so used to hearing about McKinney every month these days.

MR. FULTON: We'll see if we can get them back in here.

(General laughter.)

MR. JOHNSON: Thank you, David.

MR. BEHRENS: We'll go to item number 4, the rules for proposed adoption. 4(a)(1) will be rules concerning Management. Richard.

MR. MONROE: Good morning, commissioners. For the record, my name is Richard Monroe; I'm general counsel for the Department of Transportation.

If you approve the minute order now before you, we will have permission from you to publish for comment in the Texas Register certain rules relating to the governance of the commission itself. These were necessitated, I think fortunately so, by some recent legislation in the last regular session.

On page 3 of 7 of Exhibit A you will get a capsule version of what these rules do. The last full paragraph expanded the duties of the chair, to include: determining the order of business at meetings, creating subcommittees, appointing an acting chair, making legislative recommendations on behalf of the commission, and overseeing the preparation of the commission agenda.

Once again, you are giving us permission to publish these in the Texas Register for public comment. I would recommend that you approve the minute order now before you. And of course, I'll be happy to answer any questions if I can.

MR. JOHNSON: Are there any questions?

MR. WILLIAMSON: So moved.

MR. NICHOLS: Second.

MR. JOHNSON: All in favor, signify by saying aye.

(A chorus of ayes.)

MR. JOHNSON: Motion carries. Thank you.

MR. BEHRENS: Item 4(a)(2), also rules for proposed adoption, would be rules concerning Employment Practices. Diana Isabel.

MS. ISABEL: Good morning, commissioners. My name is Diana Isabel and I'm the director of the Human Resources Division.

Today we have proposed amendments to Section 4.21 which are Definitions and 4.25 which concern the Conditional Grant Program. These sections are amended to comply with changes by House Bill 3588 and Senate Bill 1876 that were recently passed by the 78th Legislature.

These bills changed the eligibility of the program requirements from minority and women students to economically disadvantaged students, and the types of professions eligible from those that have a significant statistical underrepresentation of minorities or women in the department's work force to those which the department determines there is a critical need.

It also makes clarifications on definitions as well, and we have also defined economically disadvantaged by adding that as a definition since it was not identified by legislation. And as a result, we are using a household with a family annual adjusted gross income of not more than 225 percent of the Federal Poverty Level as our basis and guidelines for determining what economically disadvantaged students would be considered.

This is an established guideline that will ensure fairness in determining who will be accepted into the program and we feel like this is the best guideline to use for all concerned. So we are asking that you take our recommendations and approve the proposed amendments to the Conditional Grant Program.

MR. JOHNSON: Questions?

MR. WILLIAMSON: So moved.

MR. NICHOLS: Second.

MR. JOHNSON: All in favor, signify by saying aye.

(A chorus of ayes.)

MR. JOHNSON: Motion carries. Thank you, Diana.

MR. BEHRENS: Item 4(a)(3) proposed rules under Finance which concern ethical requirements for financial advisors and service providers.

MR. MUNOZ: Good afternoon. For the record, my name is John Munoz. Item 4(a)(3) seeks approval to propose for adoption and authorize the publication in the Texas Register ethics requirements for financial advisors and service providers. These requirements are to comply with Senate Bill 1059 of the 78th Legislative Session.

The requirements provide for disclosure in writing to the executive director any relationship the financial advisor or service provider has with any party to a transaction with the commission or the department when a reasonable person would consider a conflict of interest to exist because of that relationship.

It also provides a requirement to disclose any monetary interests that they may have to a transaction with the commission or the department related to the services provided, and they also need to file with the executive director and the state auditor a statement disclosing each relationship and monetary interest related to the transactions or parties to the transactions annually.

Staff recommends your approval and I would be glad to answer any questions you may have.

MR. JOHNSON: Are there any questions?

MR. NICHOLS: No.

MR. WILLIAMSON: So moved.

MR. NICHOLS: Second.

MR. JOHNSON: All in favor, signify by saying aye.

(A chorus of ayes.)

MR. JOHNSON: Motion carries.

MR. BEHRENS: Item 4(a)(4), also for proposed adoption, Contract Management Rules. Zane.

MR. WEBB: Good morning, commissioners. I'm Zane Webb, director of the Maintenance Division.

The two minutes orders you've got before you this morning concern proposed rule changes to Chapter 9 Contract Management. Senate Bill 1580 of the 78th Legislature allows TxDOT to require maintenance contracts to be bonded for one year rather than the full contract amount.

If we have a multi-year repetitive work contract for maintenance contracts, we can bond these under this proposed rule for one year rather than for the full contract amount. We feel like this will allow us to have more competitive and possibly lower prices on the contract.

Staff recommends approval.

MR. WILLIAMSON: I have one question, Chairman.

MR. JOHNSON: Question.

MR. WILLIAMSON: We obviously, I think, going to approve this, Zane, but I'm curious -- it clearly will allow for more competition but what's your view on its impact on smaller business guys? Does this open the door for a smaller guy a little bit better?

MR. WEBB: Yes, sir, we feel like it will because it will lower their requirements for the term of the bonding, therefore, lower the price on the bonding.

MR. WILLIAMSON: So it's not only a competitive measure to the benefit of the taxpayer, it may be thought of as a business development measure. One of the knocks on us -- and I don't think it's fair but it's one of the knocks we often hear -- is a small guy can never do work for us, they have to end up being a subcontractor to somebody else. It looks to me like this could be a benefit of that.

MR. WEBB: Sure, that's exactly the situation, sir.

MR. WILLIAMSON: Thank you. So moved.

MR. NICHOLS: I'll second.

MR. JOHNSON: All in favor, signify by saying aye.

(A chorus of ayes.)

MR. JOHNSON: Motion carries.

MR. WEBB: The second minute order we have is Section 9.21; it's also proposed rules. It allows TxDOT to award a small amount of work as a purchase of service under the Government Code rather than as a regular contract. We feel like this will expedite maintenance work in the districts and will help our people get work done quicker and at a lower cost because of the administrative cost of lettings.

Staff recommends approval.

MR. JOHNSON: Any questions?

MR. WILLIAMSON: So moved.

MR. NICHOLS: Second.

MR. JOHNSON: All in favor, signify by saying aye.

(A chorus of ayes.)

MR. JOHNSON: Motion carries.

MR. NICHOLS: Mr. Chairman, before Mr. Webb leaves up there, you may not be aware -- or you probably are aware that Mr. Webb started with TxDOT in the Athens office years ago?

MR. WEBB: Yes.

MR. NICHOLS: And then later came to the Tyler District and worked in Jacksonville, and then Waco, and on up through the ranks to head of Maintenance for the whole state, but what you may not be aware of is that his son now is the area engineer in Athens, Texas in the very same place that he started.

MR. WILLIAMSON: My goodness, that's great.

MR. JOHNSON: Terrific.

MR. NICHOLS: I think that's neat.

MR. WEBB: Thank you. We're very proud.

MR. NICHOLS: I bet you are. Thanks.

MR. BEHRENS: Agenda item 4(a)(5) propose rules under Transportation Planning and Programming concerning international bridges.

MR. RANDALL: Good morning, commissioners. My name is Jim Randall, director of Transportation Planning and Programming Division.

This minute order proposes the adoption of amendments to Section 15.70 through 15.72 and 15.74 through 15.76 to be codified under Title 43, Texas Administrative Code, Part 1, relating to international bridges.

Transportation Code, Section 201.612, provides that the Texas Transportation Commission may adopt rules providing for the approval of proposed bridges over the Rio Grande. The commission previously adopted Sections 15.70 through 15.76 to specify the process for approval of proposed international bridges.

House Bill 1653, 78th Legislature, Regular Session, amended Transportation Code, 201.612, to allow an applicant requesting approval to construct an international bridge to apply concurrently with the state and federal governments. This bill also requires an applicant to withdraw its federal application if the state rejects the application. The legislation became effective on June 20, 2003.

In addition to the amendments to Section 15.72 and 15.76 which are necessary to implement House Bill 1653, Sections 15.70, .71, .74, and .75 are amended to update several agency names and titles referenced in the current rules.

Section 15.76 is also amended to demonstrate the consequences of commission action or inaction. If the commission fails to make a determination before the 121st day after the department receives a request for approval under Section 15.72 the request is considered approved.

The minute order presented for your consideration authorizes publication of the proposed rules for adoption in the Texas Register for the purposes of receiving public comments. Staff recommends approval of this minute order.

MR. JOHNSON: Any questions?

MR. WILLIAMSON: Yes, sir. Go ahead. I yield. I'll go last; you go first.

MR. NICHOLS: Oh, I didn't hear you. I'm sorry.

I had sent some questions and I got responses back related to this. The 120-day thing is automatic in law in that failure to take an action is an action, in effect, by law, and I just wanted to make and be on the record saying that I had originally suggested that we modify those rules so that a bit later, as I understood it, it might be better in the administrative manual.

MR. RANDALL: Yes, sir, the Project Development Policy Manual.

MR. NICHOLS: But I wanted to make sure that when we did get an application that whichever commission is in place at the time is notified of the application, and reminded that failure to take an action in 120 days with a specific date is an action because I'm not too concerned with the administration and the commission that we have now, but as time moves on, 10-20 years from now, something like that may happen and somebody may not realize the ramification and it's pretty serious.

MR. RANDALL: Yes, sir.

MR. NICHOLS: Anyway, I just wanted to get it on the record.

MR. RANDALL: For your information, we received the Webb County application on September 17 and we received the City of Laredo application on September 22. Now, if we do with 120 days, that would take us into January but the nearest commission meeting is December 18, so the action would have to be taken on December 18 on both applications.

MR. JOHNSON: I think your point is that the request is to put in our procedures or the way we deal with these things that the commission will be notified and that be somewhere in our operations manual.

MR. RANDALL: Yes, sir.

MR. NICHOLS: Not only notified but reminded of the 120 days. Now, we remember it right now but time moves on, people forget things.

MR. RANDALL: We will do that.

MR. JOHNSON: Ric, did you have something?

MR. WILLIAMSON: Well, I think it's -- I was going to say odd, it's not odd -- it's interesting as we work through every month our documentation and we communicate with each of our respective administrative assistants and we communicate with Mike separately, we have to sort of -- three people have to individually decide what's important to them and what they want to draw the line on, what they want to question and what they don't.

I'm real uncomfortable about this rule but I didn't perceive that you and Robert were through our communication system, so I've chosen not to say anything about it, but having listened to Robert and now listening to you, John, I'm not sure I have a very high comfort level about this rule, just to be real honest about it.

MR. JOHNSON: You're talking about the rule itself?

MR. WILLIAMSON: The proposed.

MR. JOHNSON: What gives you heartburn?

MR. WILLIAMSON: Maybe the same thing that bothers Robert.

MR. NICHOLS: And the 120-day thing is in law; we don't have a choice.

MR. WILLIAMSON: But we have a choice as to how we're notified about it and the routine that it works.

MR. NICHOLS: Yes, that process.

MR. WILLIAMSON: We got a memo from Jim or I think I got a memo from you saying the Webb County thing is in and the City of Laredo thing is in. Well, I don't know, how many memos do we get a day or a week or a month that we get to look at.

And I just have some concerns that somewhere out there in the future a commission is going to, by not having adequate in-your-face notice, perhaps miss an opportunity to direct staff on these bridges.

And you know, I'm real good about just saying what I think, I'm not real pleased about two bridge applications within 16 miles of each other popping up in one part of the state.

MR. RANDALL: We understand.

MR. WILLIAMSON: You know, we've got some bridges we need to build in the southern part of the Valley, we've got some bridges that need to be built in the western part of the Valley, and people say we don't have a whole lot to say about that, we don't spend a whole lot of money on it, but the truth is we do, we end up spending state resources and allocating federal resources on these bridges.

And I think there's just a whole lot of bridges already in that part of the state and they need to be built someplace else, so I'm just not too pleased about that right up front.

MR. RANDALL: Yes, sir. Part of our steps or procedures is we'll bring an analysis for your consideration on both bridges before the December 18 meeting.

MR. NICHOLS: Let me ask a question then, and it may be to -- where's Richard Monroe? The question is obviously we have one commission member that's still uncomfortable. If we defer a month, is it going to have any significant impact on -- I mean, we're not going to be in violation of any --

MR. MONROE: Oh, no, sir.

MR. NICHOLS: We could wait another month?

MR. MONROE: Surely. Once again, I'd like to reiterate that the 120 days is statutory and there's nothing we can do about that. And within that period of time if this commission decides "Lousy idea, we won't go for it," it doesn't matter what the federal government does as far as approval, it's dead.

MR. WILLIAMSON: And again, I understand the law, my concern was the same concern Robert voiced and that is if we make this an administrative nicety -- and we need to do that because everybody is overworked -- but this is one where I'm not sure I want it to be easy for me to forget.

I may want every month for you or Mike or someone to stand up and say, now, Ric, that bridge is fixing to be approved or that application is fixing to be approved -- I mean, I might prefer that, just kind of reminding me of what's pending out there.

MR. MONROE: Usually we don't put internal procedures into rulemaking, we usually reserve those for policy manuals or directives from Mike to the various division heads or something like that.

MR. WILLIAMSON: And Richard, I probably wouldn't have said a word except those two applications popped up all of a sudden, and you know -- well, that's enough said -- just suddenly these two come up on the horizon at the same time, not suddenly the projects, we're all aware of the projects, but suddenly these two come rolling through and it kind of reminds me there's a lot of bridges there and there's a lot of bridges on other parts of our border that need to be built.

MR. MONROE: There would be no problem in deferring this for a month if that's the commission's pleasure.

MR. JOHNSON: The question that I have, this proposed rule, the intent is to comply with the House Bill.

MR. RANDALL: Yes, sir.

MR. JOHNSON: Separate and distinct from that is our internal operations manual or procedures of how we notify and prepare not only internally but the commission for the decision that must be made in, in this case, a timely basis, or as Robert pointed out, no action actually becomes an affirmative action.

MR. RANDALL: Yes, sir. In the Project Development Process Manual right now, it outlines the steps on analyzing the applications and presenting to the commission. What's not in the manual is notifying the commission that we received the application and keeping you informed on a monthly, or however you'd like to, on the status.

MR. JOHNSON: Well, why don't we -- I would propose that we defer this action until the next meeting as far as the rule, and concurrent with that, would you submit to us the internal procedures manual as proposed so that we can get the comfort that internally it's going to happen where we receive notice on a timely and continuous basis where something doesn't fall through the cracks.

I think that's what Ric's observation is. I don't see it happening with the makeup of this commission; the commission is about to expand; we don't know what's going to happen years from now.

MR. RANDALL: We can do it.

MR. JOHNSON: Is that all right?

MR. BEHRENS: Jim, you might, when you prepare that briefing, show the procedures that we used on the Fabens Bridge and how with this it would change, and we'll streamline that some as far as that process.

MR. RANDALL: Yes, sir.

MR. BEHRENS: Because we had, more or less, a two-part process for Fabens and some of that will be combined with this.

MR. NICHOLS: I concur with deferring but I also had another question. The second question is, as I understand the process, when we receive an application, internally we have ten days in which to make sure the application is complete?

MR. RANDALL: Yes, sir. We have various divisions, the Design, the Finance, our division -- I'm leaving some out -- the IRO that analyze the application for completeness or incompleteness. If we determine that it's incomplete, then we take it back to the applicant to address those issues.

MR. NICHOLS: So in that ten-day process, if any piece of it is deemed incomplete, then it is sent back and there is no clock running on the 120 days.

MR. RANDALL: Correct. It won't start again until they resubmit it.

MR. NICHOLS: So the ten-day review, there is some official step there that we say -- and that's an administrative thing -- "It is complete." The 120 days, does it begin on that day they deem it complete, or did it begin ten days earlier?

MR. RANDALL: It starts -- if we send it back, when it comes back to us we date-stamp the application, review it again, but the date stamp when we originally receive the application is when the 120 days start.

MR. NICHOLS: So we would not even be notified, under the current procedure, until after you consider it complete? Because currently, as I understand, they did apply and it was sent back because it was incomplete, so even though we kind of heard they were applying, there was no 120-day clock running.

MR. RANDALL: Correct.

MR. NICHOLS: But when you determine that it is complete, then we have 110 days left is my point.

MR. RANDALL: Yes, sir.

MR. NICHOLS: At the time we get notification it's deemed complete and here's the application, we don't have 120 days, we have 110 days, so the time clock just got shorter.

MR. RANDALL: And if the commission meeting falls where it's outside -- the nearest commission meeting to the 120 days, we're restricted to that. For example, on these two that we received, the 120 days goes into January but it isn't into January to make the January commission meeting so we have to back up to the December one.

MR. WILLIAMSON: We're making an already uncomfortable situation even more so.

MR. NICHOLS: So we really got more like 90 days.

MR. WILLIAMSON: And if I understand the law, if we don't act, that's an action.

MR. RANDALL: Yes, sir.

MR. WILLIAMSON: The application receives our seal of approval. We need to rework this stuff, boys.

MR. RANDALL: We'll do it.

MR. JOHNSON: Is that satisfactory with you to defer?

MR. WILLIAMSON: Yes, sir.

MR. JOHNSON: Thank you, Jim.

MR. RANDALL: Yes, sir.

MR. WILLIAMSON: Plus it's gratifying to know someone else was concerned about it, because like I said, in all of our transferring back and forth through our AAs, I didn't realize that you had picked up on it, but it bothered me greatly. And now we'll blame it all on Carlos.

(General laughter.)

MR. BEHRENS: Item 4(a)(6), Traffic Operations, proposed rules for Logo Signs and also use of State Highways.

MR. LOPEZ: Good morning, commissioners. My name is Carlos Lopez. I'm director of the Traffic Operations Division.

The minute order before you proposes preliminary adoption of a revision to Section 25.406 concerning the Logo Sign Program. This revision modifies criteria that restaurants must meet in order to participate in the program as per the requirements of House Bill 1831 that was passed during the last session.

Currently restaurants can request a variance if they serve only two meals a day and are open six days a week. Under the proposed rule change, a variance request would no longer be necessary and this should help in streamlining the application process for those businesses in obtaining a logo sign.

We recommend approval of this minute order.

MR. WILLIAMSON: Question.

MR. JOHNSON: Yes, sir.

MR. WILLIAMSON: Carlos, educate me real quickly about the whole Logo Sign Program in this sense: is it only restaurants and gasoline stations that can get logo signs.

MR. LOPEZ: And hotels. Gas, food, lodging.

MR. WILLIAMSON: And is that our rule or the federal rule?

MR. LOPEZ: That is under the state law.

MR. WILLIAMSON: State law?

MR. LOPEZ: State law that's written to allow the Logo Sign Program. And campgrounds are also allowed.

MR. WILLIAMSON: Do we have any administrative leeway to add to that?

MR. LOPEZ: No. I believe it's limited to those type of businesses.

MR. WILLIAMSON: Now, Carlos, think carefully. This is your commissioner asking.

(General laughter.)

MR. LOPEZ: What do you want to add, sir?

MR. WILLIAMSON: I love you; you're great. I got to thinking the other day, do you have a local radio station, Robert, in Jacksonville?

MR. NICHOLS: Yes, the Mighty KEBE, one megawatt.

MR. WILLIAMSON: And we know that John has 77 local stations in Houston, and I've got one local station in Weatherford.

MR. JOHNSON: Would you like some of ours?

MR. WILLIAMSON: I'd love it.

(General laughter.)

MR. WILLIAMSON: But it occurred to me why that call sign would not be allowed on the interstate. If I was traveling through Weatherford, Texas, and wanted to get the weather -- this actually came up when a tornado came through four or five weeks ago -- it occurred to me that it would have been interesting to have been able to know or to just observe on the sign, you know, "KCSC, 837 AM on the Dial."

MR. LOPEZ: As far as, as in your case you described, an emergency situation?

MR. WILLIAMSON: Yes, just local radio, local news, local weather, whatever. They have that in Yoakum because they have the electronic sign that says, you know --

(General talking and laughter.)

MR. LOPEZ: Currently in cities where there is an incident going on, if there is a station that's broadcasting emergency information, if we have dynamic message signs in place, we can let folks know to tune in to a certain frequency.

MR. WILLIAMSON: But you can't allow, particularly from Fort Worth west out to the speaker's area, all of us that live on sort of the isolated part of the interstate, you can't let a local radio station put a logo sign up?

MR. LOPEZ: Not as state law is currently written, not a static sign like that.

MR. WILLIAMSON: Come on, Richard, give me a little help here. Does the federal government let us do that?

MR. LOPEZ: Not that I'm aware of.

MR. MONROE: No, sir.

MR. WILLIAMSON: Like a cold bath from your uncle.

(General laughter.)

MR. MONROE: We have to be pretty cagey about this. Anything that smacks of advertising along a major highway is just strictly out of bounds. The Logo Program gets under the wire in that: Okay, you're traveling, people need a place to stay, they need a place to buy gasoline, and they -- occasionally, at least, need to eat, and therefore, this is informational in nature to the traveler. But anything that smacks of advertising is strictly forbidden.

MR. WILLIAMSON: Okay, would it not -- and I'm being very serious, I'm not trying to play with you -- would it not fall in the same category for people to know what a local radio station signal would be in the event of weather or news?

MR. MONROE: It might, but that is the province of the U.S. Congress or the Texas Legislature.

MR. WILLIAMSON: Okay. Thank you.

MR. MONROE: And probably both.

MR. WILLIAMSON: Are we still in session? Is the legislature still in session?

MR. JOHNSON: To the best of my knowledge.

MR. WILLIAMSON: Is there still a big transportation bill floating through?

MR. NICHOLS: I think it went through the other day.

MR. BEHRENS: It goes to the governor's desk.

MR. WILLIAMSON: Both bodies have already passed it? Missed another chance. Okay, thank you.

MR. LOPEZ: Thank you, Richard.

MR. WILLIAMSON: I just thought that was odd that you couldn't see radio signal signs on it. That was my question.

MR. JOHNSON: Is there a motion?

MR. WILLIAMSON: So moved.

MR. NICHOLS: Second.

MR. JOHNSON: All in favor, signify by saying aye.

(A chorus of ayes.)

MR. JOHNSON: Thank you, Carlos.

MR. LOPEZ: The next minute order proposes preliminary adoption of revisions to Sections 25.601 through 25.603 and new Section 25.604 concerning lane restrictions on the state highway system. These new sections implement House Bill 1208 and Senate Bill 514 of the last session.

The revisions to the existing sections allow counties as well as cities to propose lane restrictions by class of vehicle on the state highway system. TxDOT has final approval authority for any proposed restriction.

New Section 25.604 allows TxDOT to initiate a lane restriction as authorized by House Bill 1208.

The new section establishes the criteria the department will follow when creating a new restriction and the coordination that will occur with local government. The department will conduct a public hearing on these rules on October 21.

We recommend approval of the minute order.

MR. JOHNSON: Any questions?

MR. WILLIAMSON: So moved.

MR. NICHOLS: Second.

MR. JOHNSON: All in favor, signify by saying aye.

(A chorus of ayes.)

MR. JOHNSON: Motion carries.

MR. LOPEZ: Thank you.

MR. BEHRENS: Item 4(b)(1) rules for final adoption, the first one being under Contract Management concerning our contract claim procedures. Amadeo.

MR. SAENZ: Good morning, commissioners. It's good to follow Carlos. For the record, I'm Amadeo Saenz, Jr., assistant executive director for Engineering Operations.

Agenda item 4(b)(1) is for the final adoption of amendments to Chapter 9, Contract Management. During the 78th Legislature three House bills were passed that authorize the department to include the contracts of the Texas Turnpike Division and contracts of the Logo Sign Program under the existing department contract claim procedures.

The legislation includes specific authority to resolve these types of claims through our informal resolution and appeals process of the department. The minute order adopts amendments to 9.2 concerning contract claim procedures and repeals 9.12 which were the ones that were included in Transportation Code 361 for the turnpike project appeals process.

The amendments and the repeal were proposed in June by Commission Minute Order 109292, they were published in the Texas Register, we received no comments. Staff recommends approval of this minute order.

MR. JOHNSON: Any questions?

MR. WILLIAMSON: So moved.

MR. NICHOLS: Second.

MR. JOHNSON: All in favor, signify by saying aye.

(A chorus of ayes.)

MR. JOHNSON: Motion carries.

MR. BEHRENS: Item 4(b)(2) for final adoption of proposed rules on Access Driveways and Connections to State Highways.

MR. K. BOHUSLAV: Good morning, commissioners. For the record, my name is Ken Bohuslav and I'm the director of the Design Division.

The minute order proposes final adoption of the repeal of Sections 11.50 through 11.53, Access Driveways to State Highways. This minute order also proposes final adoption of new Section 11.50 through 11.55, Access Connections to State Highways.

The current sections primarily address the issue of construction and maintenance responsibilities for driveways. The proposed new sections will implement the department's use of access management. The proposed rules were presented to the commission at the June commission meeting.

Public hearings were held in July in the Dallas-Fort Worth area, the Houston area and the Austin area. Several comments were received with respect to incorporation of Senate Bill 361 into the rules. Section 11.52(b) has been modified to incorporate the language of Senate Bill 361 directly into the text of these access rules.

The proposed rules provide for an implementation date of January 1, 2004. In addition, there is a transition period until July 1, 2005, where exceptions may be granted for specific access connection requests where significant prior commitments have been made under previous department policy.

The implementation of the access management approach is necessary to assist in the preservation of safety operations and mobility for the state highway system while providing reasonable access for land use and development.

Staff recommends approval of this minute order.

MR. JOHNSON: Questions, Robert?

MR. NICHOLS: I'm going to wait.

MR. JOHNSON: Ken, could you for me sort of chronologically go back and describe how we have arrived to the action that's being proposed today? I hope that's not a laborious unfair question.

MR. K. BOHUSLAV: As I recall, this process was initiated in a change in our frontage road policy in that rules were originally proposed to change that policy where we would not construct new frontage roads. And a series of public hearings were conducted around the state -- this occurred about two years ago.

From those public hearings and the comments we received, the issue of access to the frontage roads and access to our state highways really became the focus of that effort. And so a change in focusing on frontage roads to focusing on access and access management on the state highway system is how we got to this part of access management.

There's been a number of public hearings that were conducted on that. Matter of fact, a series of three public hearings were conducted, again, over the last, I guess, 18 months with proposed rules.

And in general, the comments and concerns received at the public hearings were primarily focused on economic development opportunities or potential impacts to economic development opportunities by changing a policy or making a shift in how we issue our driveway permits and provide curb cuts.

The rules that we have for final adoption are a reflection of, I guess, the last 18 months of public hearings and public comments that we received, public meetings, meetings with developers to listen to the concerns that were raised, listen to the issues and try to develop a set of rules that would provide the benefits from a comprehensive access management program, provide opportunities for economic development along our state highway system.

And I think, in a capsule, that's kind of how we got to where we are today.

MR. JOHNSON: Thanks. You mentioned at the hearings that quite a few of the presenters' concern was economic development and how these new rules might affect them. From what you've said, I think my interpretation is that a lot of consideration was given and the end result is that we don't feel that economic development is going to be stifled.

In fact, we think it will be improved through better flow of traffic and safer traffic conditions. Is that accurate?

MR. K. BOHUSLAV: Yes, sir. And I guess as part of the comments that were received, a lot of the comments directed the department to keep this at the lowest level within the agency to develop these relationships with the cities to utilize the cities' expertise, to utilize the local access management plans that were in place by the cities that maybe had more experience than we had in doing some of this.

And so that's what the rules do for us is they provide the opportunities to utilize the experience that the cities have in developing access management for their city street system and their thoroughfare system to apply that to our state highway system as well.

MR. JOHNSON: Ric, we have two people who have asked to speak on this issue. Did you want to ask Ken before they speak?

MR. WILLIAMSON: No. This has been a difficult thing for the department, for the legislature, for economic development people, and I guess everybody involved. You know, the dilemma is the private sector wishes for the decision to, as much as possible, be kept locally, but the problem is those local decisions have an impact on the statewide transportation budget.

So it appears to me that we've worked out something that we can all live with, albeit it's taken a lot longer than any of us thought it would. I hope it works out. I expect there will be complaining about it no matter what.

MR. JOHNSON: I'm going to ask the two speakers.

MR. WILLIAMSON: I might even complain about it in Weatherford, Texas, who knows.

(General laughter.)

MR. JOHNSON: Might be.

David Palmer from Dallas has asked to speak on this agenda item. Mr. Palmer, welcome.

MR. PALMER: Thank you, Chairman Johnson, Commissioner Nichols, Commissioner Williamson, Mr. Behrens, Madam. My name is David Palmer, I'm with Cencor Realty in Dallas, Texas. Cencor Realty is a retail developer and shopping center owner in the four major markets in this state.

I am here representing an organization named CUT which is an organization cobbled together of developer interests and landowner interests and retailer interests that have been working with TxDOT and the staff, Director Behrens and Mr. Bohuslav and Mr. Marek for the past 18 months from the initial draft being circulated in the spring of last year, through the public hearings last summer in the three cities, to the new draft coming out, the passage of Senate Bill 361, and the public hearings in July, the second round, where Commissioner Nichols and the General Counsel Monroe was there.

The genus of the questions at the latest round of public hearings was, first, that the rules did not track Senate Bill 361, and I think, as Mr. Bohuslav has said, that clarification has been solved.

The second draft manual which was issued took median breaks out of the formula saying that they would be covered by a different section of the Design Manual, and I'm certainly not a transportation expert and versed in the regulations, so excuse me for perhaps asking an innocuous question, but when Senate Bill 361 was passed into law, the manual that was involved concerned both curb cuts and median breaks, and the preeminence of local ordinances concerning access management -- which Senate Bill 361 underlies -- for the most part, in my experience, these ordinances deal with both curb cuts and median breaks.

Our question at the hearings in the summer -- and we followed it up with writings to this effect and we haven't heard a resolution -- is that if a home-rule city thoroughfare ordinance concerns both access management concerning curb cuts and median breaks, in our view Senate Bill 361 says that the median break distance in that local access ordinance shall control.

And by having the median breaks in the first draft manual, Senate Bill 361 gets passed, and now pulling median breaks out of this second draft manual -- and I know we're waiting for a final daft or a final manual in December -- my question -- and I asked the same thing in the summer in the hearing in Irving -- is how is the commission going to deal with median breaks which are set forth in local thoroughfare management ordinances but which aren't covered by the Senate Bill 361 language in the rules, or the manual?

And I came here today -- thank you for hearing me -- to raise the same question because in our view it hasn't been answered.

MR. WILLIAMSON: See, I was right.

MR. NICHOLS: Would you say that our Design Division has been very cooperative in meeting with you at every opportunity?

MR. PALMER: Commissioner, yes, sir, and you and I have talked at the hearings and it's been, I think, a very productive process.

MR. NICHOLS: Do you feel that access -- obviously you do feel that access management, which is normally access to a highway, should include the design configuration inside the highway itself? Is that what you're here saying?

In other words, if in -- let me just throw in an extreme example. Central Expressway, obviously you have separated lanes. You can't cross over. If Dallas decided they wanted to shoot across that thoroughfare and thus break that big barrier so that a car could cross eight lanes of oncoming traffic to get to the other side, do you think we should do that, or leave that open as a possibility?

MR. PALMER: No, commissioner.

MR. NICHOLS: Why would you think that we should not do that? And it's safety?

MR. PALMER: It's safety, sir, and as we talked in the summer, limited access highways are different than FMs and state highways. As I said to you in the summer, let's look at Preston Road.

From its origins in Oak Lawn and its origins down in that area at the beginning of the park cities all the way up to 380, Preston Road has now been improved by TxDOT up to Main Street in Frisco, a distance of about 25 miles. Through that it's gone through Richardson, Plano, Frisco, all these local thoroughfare access management ordinances where there are medians every 400 feet, every 350 feet, and it's worked just fine.

To say that we're now going to improve Preston Road and that even though Frisco's thoroughfare management ordinance says that you get a median break 420 feet off the intersection to begin with and thereafter every 400 feet, to say that we can follow the Frisco access management ordinance in terms of curb cuts but we can't follow it in terms of median breaks -- even though the local ordinances were followed in Plano and Richardson and Dallas and all the way through -- that's a disconnect, sir.

MR. JOHNSON: I don't think we've said we can't.

MR. NICHOLS: I think you're asking specifically a question to the commission something that will be done at the local level. And let me say my response to that is that I think that what our staff will do -- which is what they normally do in those situations -- is the area office and the district work extremely close -- as they have in the past -- with the cities and municipalities involved, with the counties involved and the businesses involved in trying to determine a situation that is best in all interests, and everybody isn't always in agreement, but to the best extent possible, they try to work it out to everybody's benefit without jeopardizing the safety of the traveling public.

And I would say you asked me a direct question and that is my direct answer.

MR. PALMER: So if a landowner or developer interest goes in and gets a site plan approved by the city and curb cuts and median breaks are agreed to by the city through the site-planning process, pursuant to a thoroughfare management ordinance that exists in this home-rule city, in our view Senate Bill 361 says that controls, and our question is we understand it controls with respect to curb cuts -- that's what your adoption says today.

But Senate Bill 361 doesn't distinguish between curb cuts and median breaks. If a thoroughfare management ordinance, pursuant to a local home-rule city or county, provides for here's how we're going to control curb cuts, here's how we're going to control median breaks, we think that, respectfully, 361 says that controls.

MR. NICHOLS: Okay. Respectfully, I think 361 was a good bill and it really doesn't matter what I would think, but I really truly think it was a good bill. It clarified, as we had also said as a commission prior to it even passing, was we felt like whenever there was doubt, if a local city -- remember I used to be a mayor, I like local control -- as a city, if they pass an ordinance or body of rules for access management, I have the faith that these cities are going to do what is in the best interest of the traveling public as well as the city and economic interests.

And Senate Bill 361 technically says that we will follow that. We have said in our rules, we have said publicly we intend to follow that, it's in there, it's in the whole thing, and we do.

And then you have the spirit of the intent of the law which is sometimes different than the technical. And I will tell you, as a commissioner up here, that it is my interpretation that we also intend to pursue the spirit of the intent of that law. Does that answer your question?

MR. PALMER: Yes, sir. I think we're saying the same thing and I appreciate your time.

MR. NICHOLS: Okay. Thank you.

MR. JOHNSON: Thank you, Mr. Palmer.

James McCarley, representing the Dallas Regional Mobility Coalition.

MR. McCARLEY: Mr. Chairman, commissioners, thank you. My name is James McCarley with the Dallas Regional Mobility Coalition.

And not to belabor the point, a little more background, though. The issue first started, as Mr. Bohuslav mentioned a while ago, there were several incidents that came up in the Dallas area that brought this to DRMC -- and of course, as you know, DRMC is five counties, all local governments; we don't represent the development community, it's the local governments.

First let me say that the rules as proposed, and certainly as Mr. Bohuslav explained today, I couldn't be more complimentary of the work that's been done and the relationship has been real open about trying to address the issues that have been brought up, and certainly Mr. Nichols has been heavily involved and we appreciate all that.

There's even an element in the rules that we think even goes beyond that to where you have provided that local governments can directly issue the curb cut permits if their rules are submitted to you and approved, so that's really moving forward to getting it down to the lower level if those cities choose to do that.

The one issue that hangs out still, as Mr. Palmer and Mr. Nichols discussed, the catalyst for Senate Bill 361 was median cuts. We had two or three instances up in the Dallas area -- and everyone admits things shouldn't have been done, maybe it was jut poor communications -- but the draft design manual that was put out for distribution -- and of course, the districts apparently had it -- was being used by district employees to evaluate median cuts, and there were two or three situations specifically in our area that brought it up.

The communities, the local governments, were concerned because they had made arrangements with developers or property owners for whether it be shopping centers or whatever, assuming that they could do X under the provisions they were used to, and then when they went to work that out -- and these were not Central Expressway types of instances, these were farm to markets and maybe a four-lane divided roadway, something like that -- that was the real catalyst.

So the genesis of 361 was, at least in our opinion and working with Senator Shapiro and her staff, that since the proposed design manual included median cuts, when you said access management, that included median cuts.

Now we find, after the passage of 361, or really probably midstream, the revised draft design manual that is on your website and is available has removed the median cut issue. And we are concerned, and I certainly respect what Mr. Nichols says and I know the intent of the commission is certainly not only the letter but the spirit of 361.

But we've already had a couple of situations come up while this is still hanging to where even the new design manual is being treated by the district employees as gospel. And of course, they understand that 361 takes care of the curb cut issue but it no longer has median cuts in it, so they revert back to what other section that's in -- and I'm not an engineer.

Most all the cities' -- or certainly the major cities' thoroughfare plans and thoroughfare ordinances and access management issues include median cuts on local arterials and thoroughfares, so it is all considered access management by a lot of people at the local level.

Even the testimony at the hearing in Irving when this issue came up -- and Mr. Palmer discussed and Mr. Monroe was there and Commissioner Nichols was there -- at least one of the local engineers said, Yes, we consider access management to include median cuts.

So it's really an issue of not what you think is going to happen but -- you've got, what, 14,000 employees, Mike, out there? -- really making sure that as the process occurs at the local level that if the intent is 361 covers all of it, that's the issue, and at least our feeling about Senate Bill 361, that's what it was intended to do.

And now it appears that since the department says their definition of access management is no longer included in that portion of the design manual, then that doesn't apply. So that just sort of leaves a void.

And certainly developers are concerned but local governments are concerned because many of these four lanes and noncontrolled access state roadways, of course, that's a very viable economic development opportunity that goes through any community. So that's the concern.

MR. JOHNSON: Any questions or observations for Mr. McCarley? Thank you, James.

Any questions or comments to Ken?

MR. NICHOLS: No. I sort of had all my questions answered over a long time. On the comment side, I will say that it is extremely difficult to take what is more than a half-century-old driveway manual and to update it, but the failure to update it -- which is access management -- is death by a thousand needles.

There's not one particular driveway or one particular point of access that breaks or sinks the boat, but thousands of these things occur slowly over a period of time, and when there are so many opportunities for shared driveways, improved mobility, significant safety factors involved, I went through a real educational process myself in that and became even more convinced that it is an extremely important issue of safety for the traveling public, mobility for the traveling public, and a side benefit is that we as a state will end up with better long-term economic development land use.

Contrary to some of the things we hear -- the proof is in the pudding -- there are nine other states that have done this -- it has worked very well in those states -- some have good track records as late as ten years now, I think.

I think many of us who were involved in this were surprised to find out that -- I know I was -- we had over 40 cities, some of our largest metropolitan areas, that had already adopted access management, and most of these were in the large, growing metropolitan areas or smaller cities attached to these areas that were being pushed with growth and traffic and congestion and many opportunities for economic development.

I think that since I've been on the commission I have never seen a particular issue that this department went more out of its way with public hearings, statewide several times, individual meetings, going out of its way to contact everybody that either wrote a letter or showed up at a meeting, to offer an opportunity for one-on-one sessions -- which they did -- to go back at the end of the almost six months and say, okay, rather than pushing it on through, we're going to go back -- we even canceled out, backed up and redid the whole thing again, started the whole process all over again.

We -- I say we; I'm talking about the Design Division, the staff -- almost unprecedented took the draft manuals, made them publicly available on the internet for review, knowing that these things may modify and that we might take criticism for any modification, but failure to put them out for public scrutiny was almost being treated as if we had something in secrecy that we were trying to do, so very openly -- as we do and should do -- we've done all that.

I think it is extremely important in the future of this state that this state and this agency adopt access management. And that's pretty much my comments. I could probably keep on going, but that's it.

MR. WILLIAMSON: By golly, I so move.

MR. NICHOLS: Second.

MR. JOHNSON: Before I take a vote, I attended both of the hearings in the other two locations, Austin and Houston, and although they were less contentious than the ones in Irving, many of the same points were brought forth.

And to echo a little bit of what Robert said, I'm not aware of an issue that has come before the commission or the agency or the department, for that matter, where there has been much due process, if you will.

The exchange of thoughts, ideas, the listening, the meetings, the fact that we had three meetings in large metropolitan areas and we did that twice, we repeated it, we went back and reinvented the wheel, if you will, and I concur with Robert: access management is something that we need.

Is this perfect? Probably not. Will it be amended and modified and improved? Probably will, as we get into the actual implementation of the plan because we'll learn from the omissions and oversights.

So you know, in that vein, I think this is a very, very appropriate step, and I'll call for a vote on the motion. All those in favor, signify by saying aye.

(A chorus of ayes.)

MR. JOHNSON: Motion carries. Thank you, Ken. Thank you for the work that you and the Design Division have done.

MR. BEHRENS: We'll go to item 5, Public Transportation. We'll be considering nine members of the Public Transportation Advisory Committee. Wayne.

MR. DENNIS: Good morning, Mr. Chairman, commission members, Mr. Behrens. For the record, my name is Wayne Dennis. I'm the interim director of the Public Transportation Division.

The minute order we bring before you today authorizes the appointment of nine members to the Public Transportation Advisory Committee. Article 13 of House Bill 3588, passed by the 78th Regular Session of the Texas Legislature, provides for the Texas Transportation Commission to appoint a committee to advise the commission on: the needs and problems of the state's public transportation providers, including methods for allocating state public transportation money; comment on rules involving public transportation matters; advise the commission on the implementation of Chapter 461, Texas Transportation Code, regarding statewide coordination of public transportation; perform any other duty determined by the commission.

In addition, House Bill 3588 also provides that the committee members will have staggered terms and its membership will represent the following: four members who represent a diverse cross-section of public transportation providers; three members who represent a diverse cross-section of public transportation users; and two members who represent the general public.

In light of these requirements, staff recommends the appointment of the following individuals to the Public Transportation Advisory Committee: Mr. Bob Geyer representing public transportation providers, whose term will expire on September 30, 2004; Ms. Vastene Olier, representing public transportation providers, whose term will expire on September 30, 2004; Mr. Vinsen Faris, representing public transportation users, whose term will expire on September 30, 2004; Ms. Paulette Shelton, representing public transportation providers, whose term will expire on September 30, 2005; Mr. Thomas King, representing public transportation users, whose term will expire on September 30, 2005; Mr. Oscar Trevino, representing general public, whose term will expire on September 30, 2005; Mr. Fred Gilliam, representing public transportation providers, whose term will expire on September 30, 2006; Ms. Donna Halstead, representing the general public, whose term will expire September 30, 2006; and Mr. Mark Maddy, representing public transportation users, whose term will expire on September 30, 2006.

Staff recommends approval of this minute order.

MR. JOHNSON: Any questions?

MR. WILLIAMSON: So moved.

MR. NICHOLS: Second.

MR. JOHNSON: All in favor, signify by saying aye.

(A chorus of ayes.)

MR. JOHNSON: Thank you.

MR. DENNIS: Thank you very much.

MR. BEHRENS: Item 6 will be minute orders under Transportation Planning and Programming. We will defer 6(a) until next month, so we go to 6(b), Jim.

MR. RANDALL: Jim Randall, Transportation Planning and Programming Division.

Item 6(b), this minute order amends Category 12, Strategic Priority, of the 2002 Unified Transportation Program to include four new project selections in the Atlanta, Austin, Corpus Christi, and Yoakum districts, at a total of $27,830,000. Minute Order 108653, dated September 27, 2001, approved the 2002 UTP.

Upon approval, the projects identified in Exhibit A to this minute order will be added to the 2002 UTP, and staff recommends approval of this minute order.

MR. JOHNSON: Any questions?

MR. NICHOLS: I didn't have any questions, I only have a comment. This is really for the people in the audience, it's not really so much a comment to you, and that is that for many years we would take almost all of the entire annual Strategic Priority funding and allocate it in one particular meeting.

And I think this commission obviously has changed that practice, and rather than expending all that in one thing, it's reserved so we may be doing these type things throughout the year.

MR. RANDALL: Yes, sir.

MR. WILLIAMSON: That was my hesitation because I was just going to make an observation for the record that for those who don't know, our friends traveling from outside the state -- the Kell Freeway people are a good example -- this commission has decided, and I think rightfully so, that it's no longer necessary to make all these decisions at once.

We can take our time and look at them over the year and make decisions hopefully on a regular basis, and I like it a lot, I think this a good way to do it.

I so move.

MR. NICHOLS: Second.

MR. JOHNSON: All in favor, signify by saying aye.

(A chorus of ayes.)

MR. JOHNSON: Motion carries.

(General laughter.)

MR. RANDALL: Okay, sir. Item 6(c), this minute order authorizes the implementation of the Texas Congestion Index methodology. On August 28, 2003, the commission adopted the report entitled "The Texas Metropolitan Mobility Plan: Breaking the Gridlock."

The report outlines planning activities, funding strategies, and action plans for the department, together with the eight metropolitan areas to follow and provide multimodal transportation projects to improve the mobility and safety of Texans living and working in the metropolitan areas.

One of the actions in the report is to develop and implement a Texas Congestion Index. The index is intended to measure the performance of the transportation system in the metropolitan areas so the commission and local entities can monitor how transportation investments improve the mobility in the areas.

The Texas Congestion Index methodology, attached as Exhibit A, is the initial effort to develop a performance measure that can track the improvements resulting from the Texas Metropolitan Mobility Plan.

I also need to mention that I have Tim Lomax in the audience, King of Congestion, who helped put this together for us. So staff recommends approval of this minute order.

MR. WILLIAMSON: So moved.

MR. NICHOLS: Second

MR. JOHNSON: All in favor, signify by saying aye.

(A chorus of ayes.)

MR. JOHNSON: Motion carries.

MR. BEHRENS: Item number 7, our turnpike projects, Bob Daigh will present the quarterly progress report for the Central Texas Turnpike Project.

MR. WILLIAMSON: Our new district engineer.

MR. DAIGH: Good morning. For the record, my name is Robert Daigh, Austin District Engineer.

I'm here today to offer for your acceptance the fourth quarterly report for the 2002 Project of the Central Texas Turnpike system. Since the last update, let me just say that this report contains information that shows the existing construction contracts that are being performed by Zachry on the Loop 1-45 interchange are under budget and on schedule. The interchange at 45 and IH-35 being performed by Archer-Western are also shown as being on budget and on schedule.

Since the last quarterly report, two contracts have been awarded, the first being the extension of Loop 1. That was awarded to Zachry for $108 million, and that was also within the financial plan that was originally proposed for this project.

The second contract was awarded to Granite for the extension of State Highway 45, extending from the Loop 1 interchange over to Parmer Lane. That contract was in the amount of $63 million.

On the State Highway 130 project, the design and right of way acquisition and environmental clearance continues to go on schedule, and as I'm sure you all know, everyone is invited to a groundbreaking on October 3.

With that, staff recommends acceptance of the quarterly report.

MR. JOHNSON: Questions?

MR. NICHOLS: I had one question and three comments.

MR. JOHNSON: Very good. Proceed.

MR. NICHOLS: I'll try to be brief. Question number 1: is this your last official report making presentations for the TTA?

MR. DAIGH: As I understand it, sir, this presentation is no longer for the TTA. The project office has been transferred over to the Austin District for administrative control.

MR. NICHOLS: So we will continue getting quarterly reports on the progress but through the district.

MR. DAIGH: Yes, sir.

MR. NICHOLS: So if we had a different project by the TTA in a different district, then that district engineer may or may not -- I guess you'll just play that as you go.

Comment number 1: Congratulations on your award last night and congratulations on becoming district engineer.

MR. DAIGH: Thank you, sir.

MR. NICHOLS: Obviously have a great relationship with the region and have certainly done a lot of wonderful things, and I think it's great. I know you're excited.

The third comment was I don't want to get into any questioning or responses because we need to accept this report as part of the bond covenant, but I know that we had some questions on some possible things in there so that I might could understand the report a little bit different on some of the schedules.

MR. DAIGH: Yes, sir.

MR. NICHOLS: I know you've got it and it's been accepted in the past, I'm just trying to understand some of it, so we're going to work on that. That's all I had.

MR. JOHNSON: Ric, did you have anything?

MR. WILLIAMSON: I would like to echo Robert's congratulations, Bob, and I know you'll do well and do well for the department. And I was going to ask the same question as Robert asked, and that is are you appearing as TTA or Austin District, and Mike had made us aware that the project would be transferred to the district, and so I guess what you're basically saying is the project is yours now.

MR. DAIGH: Yes, sir.

MR. WILLIAMSON: That allows me to talk through you to Mr. Behrens and to the staff and to then pose the question: Is it your administrative decision that as we build more and more, and hopefully a whole lot more toll roads, and have big projects like this, it will originate as a state project and then quickly be transferred to the districts for oversight?

MR. DAIGH: Yes, sir.

MR. WILLIAMSON: So by doing what you've done -- which I applaud, by the way -- by doing what you've done with the Austin District, you're not saying to Phil Russell and that division, you're not doing the job, you're saying to the division and to all the districts that the commission is indeed serious about toll roads and district engineers from Mary Owen to Bill Hale and from Mr. Freeman -- I can't say that anymore, can I -- south, these guys are serious about toll roads, and Mario, you need to get ready to run toll projects just like they were any other project.

MR. BEHRENS: That's correct. We're going to look for Phil and his division, TTA, to help the districts to identify those projects, to help them in assessing the toll viability, and then of course move to a point where they would get under way through the planning and development and everything, and then the district will run the project.

MR. WILLIAMSON: I think it's a great move. I think it's a good move to send it to Bob -- with no offense to Phil -- and I think it's a great move for the department and for the state, and I applaud you for making that decision.

MR. DAIGH: Thank you.

MR. JOHNSON: I will entertain a motion to accept the quarterly report.

MR. WILLIAMSON: So moved.

MR. NICHOLS: Second.

MR. JOHNSON: All in favor, signify by saying aye.

(A chorus of ayes.)

MR. JOHNSON: Motion carries.

MR. BEHRENS: We'll go to item 7(b) which Amadeo will give you a report on the status of our CDAs.

MR. SAENZ: Again, good morning, commissioners, Mr. Chairman, Mr. Behrens. For the record, I'm Amadeo Saenz, Jr., assistant executive director for Engineering Operations.

I'd like to give you a brief report, kind of a summary on where we are on our two comprehensive development agreement proposals. We have issued two, the first one being for the I-35 High Priority Trans-Texas Corridor. That request for proposal qualifications was issued on July 25 and the deadline for submittal was September 23, earlier this week. We received, along with the initial unsolicited proposal, two additional proposals, for a total of three. We are now moving forward with evaluating these three proposals.

We have a group of internal experts that are evaluating the proposals within a month. They then report to a steering committee who will then make a recommendation on the short list from these three proposers.

In the meantime, we also have hired a general engineering consultant to be an extension of our resources to help us put together the procurement packages as this project moves forward and do some of the environmental work and other engineering services.

And they're going to be helping us put together and develop the scope of services that we will use for requesting the detailed proposal from the people that we short-list. We will move through this thing and move this project forward.

The second CDA is a CDA for the State Highway 45 Southeast. You approved it last month in August. The request for proposal qualifications went out on September 12, the deadline will be on the 11th of November -- we gave them 60 days -- and we will pretty much follow the same procedure to the short list from the proposals and move that project forward also. I'll be happy to answer any questions.

MR. JOHNSON: Ric, did you have a question?

MR. WILLIAMSON: As to the first one, the Interstate 35 High Priority Corridor, three proposers is less than we would have wanted, but I suspect there are many large concerns who are partnered up with one or more of those three proposers. Can I assume that to be the case?

MR. SAENZ: Yes, sir. The three proposals are made up of a large number of individual companies and consortiums to make up the whole proposal.

MR. WILLIAMSON: That of themselves might have been and are, in fact, vendors to the State for large dollar amounts of design and construction services.

MR. SAENZ: That is correct.

MR. WILLIAMSON: That gives me a greater degree of comfort.

The second question I have about the 35 High Priority Corridor -- I want to ask this question in a way that I'm not being critical, don't seem to be critical -- I've had some contact me who have asked me why we hired an engineering firm in between us and hopefully the eventual winners of the I-35 Trans-Texas Corridor CDA, why did we do that -- that's the question they've asked me.

And the comment is it seems like you're putting another -- just like State Highway 130 -- you're putting another layer of bureaucracy in between TxDOT and the eventual winner of the proposers.

And my response to these individuals who have raised this question has been: This commission hasn't made a decision to let a public-private sector contract yet; we have tentatively made a decision to extend State Highway 130 north and south -- we did that years ago, that was our plan years ago -- so my view is the department has hired these guys not just because of the comprehensive development agreement but because we're going to continue building this toll road whether we find an acceptable public-private partnership or not. Now, if I'm wrong, tell me I'm wrong.

MR. SAENZ: That is correct. The GEC is an extension of our resources. We need to move forward with determining the routes, determining the alignments, determining the environmental concerns and getting an environmental impact statement completed, so all of that is part of the work that needs to be done to develop a project of this size.

MR. WILLIAMSON: And we would do that whether we did a public-private partnership with somebody or not.

MR. SAENZ: That's correct.

MR. WILLIAMSON: Because we believe that we need to extend State Highway 130, or to turn it around, we need to build the Trans-Texas Corridor no matter who our partners are. We think that's what we need to do.

MR. SAENZ: Yes, sir.

MR. WILLIAMSON: That answers my two questions. Thank you, sir.

MR. JOHNSON: Amadeo, in the I-35 High Priority Project that we've received the three, is the identity of the three proposers known in the public domain?

MR. SAENZ: Yes, sir, they will, and we are going to put it on our website, but the names of the three consortiums that submitted the proposals --

MR. JOHNSON: As of now it is not public?

MR. SAENZ: I have them here.

MR. WILLIAMSON: When will they be public?

MR. SAENZ: They'll be public sometime today.

MR. WILLIAMSON: In about 15 seconds when you tell us who they are?

MR. SAENZ: Yes, sir.

(General laughter.)

MR. JOHNSON: My observation, one of them is an international concern --

MR. SAENZ: That is correct.

MR. JOHNSON: -- which I find fascinating. As we develop more projects like this, we receive more proposals for comprehensive development, are there other international players who, in all likelihood, will draw the interest from those type entities?

MR. SAENZ: I think there are. In fact, during the last month, month and a half, we have had presentations from three different consortiums from international levels that are doing this type of public-private development of projects and facilities across the U.S. and across the world.

Also, we took an opportunity -- Phil Russell went to make a presentation on our 130 project at the IBTTA conference in Paris, and at the same time we are working to see what else we can learn from what's going on in Europe with respect to this area and tried to drum up some business, you might say.

MR. JOHNSON: I didn't know Philip was fluent in French.

MR. SAENZ: We're working.

MR. WILLIAMSON: Well, he was expecting Mr. Nichols to go with him and Mr. Nichols is fluent in French, but Mr. Nichols backed out at the last minute.

MR. SAENZ: We've had a lot of interest from abroad on the corridor concept and the public-private consortium development process.

MR. JOHNSON: I think that's a huge plus.

MR. WILLIAMSON: I do too. I think if one of the companies is one of the international outfits that contacted us previously, I think that's great, and I hope they all come to Texas and help us build and expand our infrastructure.

MR. SAENZ: Thank you.

MR. WILLIAMSON: Thank you.

MR. JOHNSON: We don't need to take any action on this.

MR. BEHRENS: No. That was just a report.

MR. JOHNSON: Thank you.

MR. BEHRENS: Item number 8 is our State Infrastructure Bank. We have two that will be presented by John: one for Bexar County and one for the City of Socorro.

MR. WILLIAMSON: John, is Fast Jimmy Bass not ever going to come back?

MR. MUNOZ: He's making a presentation in North Carolina, trying to avoid, I guess, the damage after the hurricane.

MR. WILLIAMSON: He's made it to the big time now so he doesn't have time to come back for us.

MR. MUNOZ: It just didn't work out this time. I'm sure next month you'll see him up here.

My name is John Munoz. Item 8(a) seeks preliminary approval for an application for a loan from Bexar County to borrow up to $9.1 million to assist in the cost of reconstruction of Zarzamora Road from IH-410 to Applewhite Road, and Applewhite Road from Zarzamora Road to Watson Road.

Staff recommends your approval and I would be glad to answer any questions you may have.

MR. JOHNSON: Any questions?

MR. WILLIAMSON: So moved.

MR. NICHOLS: Second.

MR. JOHNSON: All in favor, signify by saying aye.

(A chorus of ayes.)

MR. JOHNSON: Motion carries.

MR. MUNOZ: Item 8(b) seeks preliminary approval of an application for a loan to the City of Socorro in the amount of $318,500 to fund right of way acquisition for the planned reconstruction and widening of FM 76 from a two-lane roadway to a four-lane divided urban facility from .3 miles west of the city limits to .28 miles east of FM 1281.

Staff recommends your approval and I would be glad to answer any questions you may have.

MR. JOHNSON: Are there any questions?

MR. WILLIAMSON: So moved.

MR. NICHOLS: Second.

MR. JOHNSON: All in favor, signify by saying aye.

(A chorus of ayes.)

MR. JOHNSON: Motion carries.

John, one question just so it will be in front of us from time to time. If these two loans are subsequently funded -- which we expect them to be -- the balance in our State Infrastructure Bank will be how much?

MR. MUNOZ: With these two loans we're looking at about a little over $9 million still available.

MR. JOHNSON: Thank you very much.

MR. MUNOZ: You're welcome.

MR. BEHRENS: Going to item number 9, our contracts for the month of September, and these will be our maintenance contracts and our highway and building construction contracts. Elizabeth.

MS. BOSWELL: Good morning. For the record, my name is Elizabeth Boswell, and I currently hold the position of Construction Section Director within the Construction Division.

With regard to item 9(a)(1), authorization of this minute order will provide for the award of highway maintenance contracts let on September 9 and 10, 2003, whose engineers' estimated costs are $300,000 or more. Staff recommends award of all contracts as shown in Exhibit A.

MR. JOHNSON: Any questions?

MR. WILLIAMSON: So moved.

MR. NICHOLS: Second.

MR. JOHNSON: All in favor, signify by saying aye.

(A chorus of ayes.)

MR. JOHNSON: Motion carries.

MS. BOSWELL: With regard to item 9(a)(2), authorization of this minute order will provide for the award or rejection of highway construction contracts let on September 9 and 10, 2003, as shown in Exhibit A. Staff recommends rejection of two contracts as follows:

The first project is Project Number 3040 located in Harris County. The apparent low bidder, Texas Sterling Construction, alleged a bidding error in the unit bid prices for two bid items.

Staff reviewed the contractor's claim using the bid error procedures as outlined in Title 43 of the Texas Administrative Code. After a thorough examination of the documentation provided, staff was able to substantiate the intended unit bid prices and concluded that the contractor did exercise ordinary care in the preparation of their bid.

The second project is Project 3237 located in Hidalgo County. Staff recommends this contract be rejected due to insufficient competition as there was only one bidder for this project and the bid received was 39.7 percent over the engineer's estimate.

Staff recommends award of all remaining contracts as shown in Exhibit A.

MR. JOHNSON: Questions?

MR. NICHOLS: Question. On the bidding error, the procedure that you used, I heard you use the word "alleged bidding error."

MS. BOSWELL: Yes.

MR. NICHOLS: Is this a true application of some of the new procedures that we put in place a few months back?

MS. BOSWELL: Yes. This is an application -- when a contractor --

MR. NICHOLS: This is different than the way we used to do this.

MS. BOSWELL: Well, I guess over the last eight months we have reviewed, I'd say, approximately six bidding errors that have come forward from the contractors, and we do an analysis. We analyze it based upon the procedures that were outlined, and until we can say yes, it has met all the criteria, we would consider it an alleged bidding error. Then after the thorough examination, when our staff deems that it was legitimate, then we present it as such.

MR. NICHOLS: So do you feel like that new procedure -- I mean, this is the first -- it may not be the first but it really stuck out with me -- do you think those procedures are working pretty good?

MS. BOSWELL: Yes, sir, I do.

(Pause.)

MR. NICHOLS: Okay. I know there were some of us that were a little concerned because it was quite a bit different path than historically we had gone, and let me just say that if at any point you feel like we need to modify those a little bit more and refine them, don't hesitate to bring it up.

MS. BOSWELL: From staff's perspective, we believe that the procedures that we have developed solve more problems, so we feel comfortable with it.

MR. NICHOLS: Okay, good. Thanks.

MR. JOHNSON: Ric, did you have anything?

(No response.)

MR. JOHNSON: Elizabeth, I'm going to go down that same path. I recall from time to time that we will get a low bidder here who has claimed a bid error and from time to time we have, in essence, held their feet to the fire.

How does this particular situation differ from what has happened before? I'm encouraged that we are developing procedures to deal with this area because it's a complex and delicate, at the same time, area. So could you help me with that a little bit?

MS. BOSWELL: I think the answer is key in how you asked the question. Previously when a bidder came forward and they alleged a bidding error, we had no procedures or rules in place to analyze it or to deal with it.

And then we would go down the path and get into a situation where if you looked at contract law, contract law basically would say that this agency would need to provide for some type of mechanism to at least review or examine the alleged bidding error.

In the past we didn't have anything, now we do. It's very clear-cut, the contractors understand it, and they also understand the ramifications of alleging a bid error. It's not something that they can just keep doing and getting away with it; these bid errors are tied to sanctions if a pattern is demonstrated.

So I think the answer to your question is that we now have a procedure and that has simplified the issue in the past when we really were not sure how to handle it.

MR. JOHNSON: Thank you very much.

I'll entertain a motion to accept.

MR. WILLIAMSON: So moved.

MR. NICHOLS: Second.

MR. JOHNSON: All in favor, signify by saying aye.

(A chorus of ayes.)

MR. JOHNSON: Motion carries.

MR. BEHRENS: Item 9(b), we have a contract claim settlement that will be brought before you.

MR. SAENZ: One more time. Good morning. Again for the record, I am Amadeo Saenz, Jr., assistant executive director for Engineering Operations, also chairman of the Contract Claim Committee.

The minute order before you approves a claim settlement for a contract by Travelers Casualty & Surety Company of America for project CM 97(594) in Tarrant County in the Fort Worth District.

On August 12 the TxDOT Contract Claim Committee considered this claim and made a recommendation for settlement to the contractor -- or to the surety in this case -- and the contractor accepted. The committee considers this to be a fair and reasonable settlement of the claim and recommends your approval. I'll be happy to answer any questions.

MR. JOHNSON: Any questions?

MR. WILLIAMSON: So moved.

MR. NICHOLS: Second.

MR. JOHNSON: All in favor, signify by saying aye.

(A chorus of ayes.)

MR. JOHNSON: Motion carries.

MR. BEHRENS: Item 9(c) is a maintenance contract in Lampasas County where we're seeking to award to the next bidder.

MR. WEBB: Commissioners, my name is Zane Webb, director of the Maintenance Division.

The minute order before you has to do with the award of a contract to a second low bidder. Section 221.0041 of the Transportation Code allows the commission, under certain conditions, to award a maintenance contract of less than $100,000 to the second lowest bidder when the lowest bidder does not execute the contract.

In the Brownwood District the low bidder failed to provide the required bonds and failed to execute the contract. The second lowest bidder has indicated that he's willing to perform the work at the unit bid price as set forth in the lowest bid. Both the district and the division feel like it's in the best interest of TxDOT to award this to the second low bidder. Staff recommends approval.

MR. JOHNSON: Any questions?

MR. WILLIAMSON: So moved.

MR. NICHOLS: Second.

MR. JOHNSON: All in favor, signify by saying aye.

(A chorus of ayes.)

MR. JOHNSON: Motion carries.

MR. NICHOLS: How many of these have we done now that way: six or ten or something, twelve?

MR. WEBB: I wouldn't call them either frequent or infrequent, commissioner, I'd just say occasional.

MR. JOHNSON: Are you talking about second low bidder?

MR. NICHOLS: Second low bidder.

MR. WEBB: About every six months we see one.

MR. BEHRENS: Item number 10 is our routine minute orders. We are going to defer 10(d)(2) concerning a piece of property in Travis County we're trying to get for our Maintenance Section. Other than that, the routine minute orders listed are as posted on the agenda.

If you would like any of them individually discussed, we'd be glad to do that; otherwise, I recommend approval of the routine minute orders.

MR. WILLIAMSON: Mike, do any of these minute orders or any of the actions that would be approved by minute order affect any of the commissioners personally?

MR. BEHRENS: No, sir.

MR. JOHNSON: Mike, the one being deferred is dealing with the General Land Office?

MR. BEHRENS: Yes, sir.

MR. JOHNSON: The thing at Mueller?

MR. BEHRENS: No. This is in south Travis County, a piece of property we're looking at for the Maintenance Section. We want to obtain some more information before we bring that back to the commission.

MR. WILLIAMSON: I think it was all set up and then one of the commissioners observed it looked like it was a hokey deal.

MR. NICHOLS: I wouldn't use the word "hokey."

(General laughter.)

MR. JOHNSON: Any questions?

MR. WILLIAMSON: I think it's a hell of a deal myself.

MR. JOHNSON: Did you get your question answered, Ric?

MR. WILLIAMSON: I so move.

MR. JOHNSON: There's a motion.

MR. NICHOLS: Second.

MR. JOHNSON: And a second to approve the routine agenda items. All in favor, signify by saying aye.

(A chorus of ayes.)

MR. JOHNSON: Motion carries.

We will now enter our open comment period of the meeting, and Mr. William Altman, also from Wichita Falls, has requested to visit with us on the completion of the Kell Freeway.

MAYOR ALTMAN: Thank you, Mr. Chairman. William K. Altman, mayor of Wichita Falls, chairman of the Wichita Falls MPO, commonly called Bill but occasionally creative citizens find another moniker for me. It's a pleasure to be here this morning, gentlemen.

In the 1964 Metropolitan Transportation Plan there was envisioned a completion of a significant highway route through Wichita Falls which would do a great deal to alleviate a safety situation plus traffic congestion.

With the development of NAFTA, this project has even taken on -- as you are certainly aware -- more significance. We have been delighted to partner with TxDOT over the years and make significant strides in the completion of the Kell Freeway highway interchange.

We're now faced with two significant segments. One I'm here to address you about this morning is the Kell Interchange which would significantly affect not only the City of Wichita Falls but it would significantly affect the NAFTA trade corridor coming from I-20 up to I-44.

As you're aware, the Kell Interchange project will affect four U.S. highways, 82, 277, 287 and 281, State Highway 79 and I-44. I'm here this morning with a delegation from Wichita Falls and with the support of nine counties in the Cross Plains Rural Transportation Council consisting of 51 incorporated municipalities who all support funding for the Kell Interchange project.

As you know, back starting in 1968 the city partnered with TxDOT. The city contributed $3 million in funding and acquired all of the necessary right of way. The plans are completed for the interchange project.

You have been submitted letters from me and various other individuals encouraging you to consider in the '04 Mobility Plan our action in the manner that you're now handling funds, and we're here this morning to encourage you and to answer any questions that you might have with regard to accelerating the interchange project.

It will make a vast difference not only in safety and transportation, it also now has the collateral benefit of potentially relieving an additional segment of transportation down the I-35 corridor by bringing some of that NAFTA truck transportation through Wichita Falls up to I-44.

We would submit to you that while you have an awesome responsibility and burden of allocating funds, that this is a project that serves a need that would meet virtually any criteria you could come up with and the amount of money involved is one that could be wisely spent in this area.

With that, I would answer any questions that you might have, and I appreciate the opportunity to appear before you today.

MR. JOHNSON: Any questions?

Mayor, thank you for taking the time and trouble to be here. As you noted, these are very difficult decisions to make because we have a finite amount of resources to deal with the challenges all over this great state, but Wichita Falls, the Kell Freeway, the interchange, we recognize are very important not only to the community but to the state, and hopefully we can move things along, but we continue to struggle with the allocation of resources and we're doing the best we can.

MAYOR ALTMAN: Mr. Chairman, I know that and I certainly respect your efforts, and as Commissioner Nichols pointed out, being a former mayor, he is aware of when you have significant uncompleted projects within your community, the desire is great not only within our community but within our region to move this along.

But I also recognize and fully respect the onerous burden you have of facing clearly more needs than you have the money for, so I don't want to underestimate or under-respect that ability.

I would like to just briefly mention Dan Shine was recognized by Representative Farabee. Dan Shine was also the founder of Willen Electric Company, a multi-state electrical contractor, and chairman of our transportation needs committee. With that, Commissioner Williamson, if you have any questions or comments.

MR. WILLIAMSON: I started to ask this of David and I thought you would be the better person to address it to. You know, one of the many, many tools the legislature gave us in the last session is a concept called pass-through or shadow tolling, and it's designed, I think, specifically for the problem you have.

It is entirely possible for you and your county and your local banks and contractors to bring a proposal to the commission that says we will finish this, we've got the financing, we'll take care of the contracting, we'll do it to your specs, and we need you to reimburse us over time based on the traffic on the road.

Now, your district engineer will get probably more information about this in about two weeks, I think, in short course, but this is almost a perfect example of a shadow toll project that should be originated at the community level, and it's certainly a much quicker way to bring a project forward.

And I would just encourage you to get with your district engineer just as soon as you leave the podium and you guys go back and figure out how you can get this project done and be reimbursed over time from us, and we can get that done, I think.

MAYOR ALTMAN: Commissioner Williamson, any suggestions you make I certainly will discuss with the district engineer.

MR. WILLIAMSON: I mean, this and the little overpass at Dyess Air Force Base are the two that have been in the back of my mind from the time that we developed that concept. You know, it's just made for it, just couldn't be a better application of it.

MAYOR ALTMAN: Well, considering there's three votes on the commission and one vote has certainly urged me to consider an alternative, I would be certainly remiss if I did not, as soon as I leave this podium, discuss that possibility.

MR. WILLIAMSON: I mean, don't you think, Robert, isn't this exactly what we had in mind?

MR. NICHOLS: I think it's something they ought to evaluate. It's one of the tools in the book.

I'd also like to say that we have funded quite a few projects in the Wichita Falls area. I remember during the construction -- I drive through there usually about four times a year, at least -- all through that construction watching that stuff go up, and finally it got to the point that you could just cross through there. It's pretty amazing.

MR. WILLIAMSON: Senator Estes has been very concerned about this project and he's talked to me several times about it, and as is the case with 5,000 other projects, we would love to pull the checkbook out and go do it, but we don't have that capacity.

But he and the other members of the legislature, following the governor's lead, have created all these marvelous tools that it may not be the best but it's certainly better than a project not getting started for ten more years.

And who knows? I mean, we think we understand what the transportation of the future in the state is and we believe there will be a day when everyone in the state will have an electronic card and will be paying tolls for use of certain roads.

Who's to say that you don't bring forward a shadow toll project, get it built, we start reimbursing you, and then at some point we authorize Wichita County or the city to start collecting a toll to use that freeway and start generating some revenue off of it. So be entrepreneurial, go back home and think outside the box.

MAYOR ALTMAN: Commissioner, as I stand here, I can tell you I'm excited about the opportunity to think outside the box. I appreciate your urging and I will visit with the district engineer after I leave the podium and find out more about this, and I appreciate your time.

MR. WILLIAMSON: He'll be mad at me for telling you to do that.

MAYOR ALTMAN: Oh, no. I understand that, and as you fully understand, Senator Estes will keep talking to you about funding. That's the nature of the process.

MR. WILLIAMSON: Oh, he will. Craig is quite insistent. He's a good senator.

MAYOR ALTMAN: He's a very good man, a very close friend of mine.

MR. JOHNSON: Thank you for being here, Mayor.

MAYOR ALTMAN: Thank you.

MR. JOHNSON: Any other speakers at open comment?

(No response.)

MR. JOHNSON: There are none. Is there any other business to come before the commission?

MR. BEHRENS: Chairman, if I could, I'd like to introduce to the commission Sue Bryant. She's going to be our new director of Public Transportation.

Stand up, Sue, so they can see you better.

MR. WILLIAMSON: We don't get to grill her this time; we just get to look at her? We'll grill her the next time.

MR. BEHRENS: She'll take over October 1.

MR. JOHNSON: Congratulations.

MR. BEHRENS: That's all I have.

MR. JOHNSON: There being none, we'll entertain a motion to adjourn.

MR. WILLIAMSON: So moved.

MR. NICHOLS: Second.

MR. JOHNSON: All in favor, signify by saying aye.

(A chorus of ayes.)

MR. JOHNSON: Please note for the record at 11:23 a.m. that the meeting stands adjourned.

(Whereupon, at 11:23 a.m. the meeting was concluded.)

MEETING OF: Texas Transportation Commission
LOCATION: Austin, Texas
DATE: September 25, 2003

I do hereby certify that the foregoing pages, numbers 1 through 109, inclusive, are the true, accurate, and complete transcript prepared from the verbal recording made by electronic recording by Ben Bynum before the Texas Department of Transportation.

                          09/29/03
(Transcriber) (Date)

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