APR98TRN.DOC



NOTE TO LAUREL: Be sure to change footer EACH TIME so that footer reflects date of hearing. Use PAPER1.TXD and PAPER2.TXD (in C:\WP5\WORK).

TEXAS TRANSPORTATION COMMISSION

MEETING

Wednesday, April 23, 1997

125 East 11th Street

Austin, Texas 78701-2483

COMMISSION MEMBERS:

DAVID M. LANEY, Chairman

DAVID E. BERNSEN

ANNE S. WYNNE

STAFF:

William G. Burnett, Executive Director

Russell Harding, Director, Staff Services

I N D E X

AGENDA ITEM PAGE

Approval of Minutes of 3/27/97 Meeting 5

Resolution 5

Texas Parks and Wildlife Department 7

Promulgation of Rules and Regulations 11

Multimodal Transportation 13

Programs 22

Transportation Planning 23

Contracts 27

Contested Case 36

Routine Minute Orders 38

Executive Session 39

P R O C E E D I N G S

MR. LANEY: Good morning. I'd like to call the meeting of the Texas Transportation Commission to order, and I want to welcome all of you to the April 23 meeting of the Commission. Appreciate your coming.

Let me note for the record that public notice of this meeting containing all items of the agenda was filed with the Office of the Secretary of State at 10:07 a.m. on April 15, 1997.

Two items before we begin the meeting. One is -- this is likely to be the -- three items -- the last, the very last, but maybe the next to last meeting of David Bernsen, and he has got the biggest smile on his face that I've seen in two years, but we will miss you. I hope we see a lot more of you, David.

MR. BERNSEN: You will, and I appreciate it, and I know it's been rumored and rumored and rumored, but I think that this will be my last and you won't have to -- why don't you introduce --

MR. LANEY: I will. The second item is in the audience somewhere we have our nominee to take David Bernsen's place, Robert Lee Nichols from Jacksonville. And Robert, if we can get you to stand for a second. We're delighted to have you with us this morning.

(Applause.)

MR. BERNSEN: Mr. Chairman, if I might add something. He knows that San Angelo is not East Texas.

MR. BURNETT: But it is nice to have an engineer on the Commission finally.

MR. BERNSEN: Well, that's true, with all these lawyers. But I'm excited he's from East Texas, and also, I might add, a Lamar University graduate, so the Cardinals are back.

(Laughter.)

MR. LANEY: Anyway, Robert, don't read into Commissioner Bernsen's smile anything about how enjoyable or unenjoyable the last two years have been. You will be in demand around the state, and you will certainly be in demand in terms of your activity on the Commission, so we're delighted to have you nominated and look forward to seeing you successfully navigate the nominations and confirmation process.

The last item is this is probably the last Commission that we will be able to have, at least during my term, when the salamander is not endangered. We thought that the presentation made during one of Mr. Bernsen's celebratory departure dinners, he was handed a framed version of what we thought were the last two of these salamanders and that there weren't any left, but I'm sorry to say, David, you didn't get the last two -- they're not as valuable as you thought. So in any case, sorry to see the endangered species designation on the salamander. We do think our department has been doing, along with other departments, a great job at protecting the water sources. But I guess, Anne, this just means no money for roads in Austin going forward.

MS. WYNNE: You know, I think those salamanders live in places where roads don't go.

MR. LANEY: Or won't go.

MS. WYNNE: That's right.

(Laughter.)

MR. LANEY: So anyway, it's a relief on the Highway Fund to have the endangered species designation for the salamander.

The first item on the agenda is the approval of the minutes for the Commission meeting of March 27, 1997. Any comments of questions?

MR. BERNSEN: I move approval.

MR. LANEY: Second?

MS. WYNNE: Second.

MR. LANEY: All in favor?

(A chorus of ayes.)

MR. LANEY: Bill.

MR. BURNETT: Commissioners, Item 2 on your agenda is a resolution that we'd ask you to consider approving and executing. It supports Congressman Delay's and Senator Warner's legislation for a streamlined transportation efficiency program for the 21st Century. Russell Harding and others have worked on this resolution with the North Texas Council of Governments, the MPO, Michael Morris, and as recently as this week, with the Houston-Galveston Council of Governments, and this pretty much puts the department on record -- as has been Governor Bush, Lieutenant Governor Bullock, and Speaker Pete Laney -- that this is a good program for Texas.

A copy of the resolution is in your book and we would ask your consideration in approving this resolution so we can forward it to the Texas delegation.

MR. LANEY: Just so you all will know, the acronym that Bill, when he talked about the name of it, is Step 21. This is the program we've been pushing and Russell has been working on so hard, and my compliments to you, and my appreciation and our appreciation to the rest of the Texas interests involving transportation, in stepping onto this one.

This is very important for Texas and will probably, if it passes, ensure an addition $165 million minimum to the state, and 95 percent of our fuel tax dollars going to Washington would come back. So a great idea.

MS. WYNNE: Did you say stepping onto this one?

MR. LANEY: It's early in the morning and I'm not responsible for anything I say.

(Laughter.)

MS. WYNNE: Well, on that, I will make a motion to approve it.

MR. BERNSEN: Second.

MR. LANEY: All in favor?

(A chorus of ayes.)

MR. BURNETT: Commissioners, Item 3 on your agenda is a presentation by Andrew Sansom, executive director of Texas Parks and Wildlife. And Andy, as you know very well, is a very good friend of the department and the department has a great relationship with Texas Parks and Wildlife, and Andy would like to address you.

MR. SANSOM: Thank you, Bill. And thank you, members, for having me this morning. My purpose here really is simply to say thank you and goodbye to Commissioner Bernsen. I have enjoyed our relationship very much. During your tenure we protected one of the most important natural areas in the United States, which is Blue Elbow Swamp, as you know, on the Sabine River.

I couldn't help but think, Mr. Chairman, as you mentioned the salamander, that it is a good example of how well we've been working together. It's unfortunate that the federal government has made the decision that it has made because I believe that not only was that procedure that we developed together one that would work for us and for the protection of the creature, but it was also one that we could use over and over and over again here in Texas to our benefit.

So in spite of that, let me just say to you that in the last several years, as we have become closer and closer aligned, we have a memorandum of understanding between our two agencies, for example, that has resulted in, I believe, not one single delay of a highway project for environmental reasons over the past several years, and that's unprecedented.

I think when all of us first became involved together, we were fighting every project, and now we don't do that anymore. And I don't think you can find a relationship like that anywhere in the United States except here, and I just want to tell you from the standpoint of our commission and staff, we're very proud of it.

The last couple of years we opened the Texas Great Coastal Birding Trail together. I was on the coast Saturday in Beaumont to begin the Texas Birding Classic which is a direct outgrowth of the birding trail, and it's astonishing -- there were teams of people from virtually every industry on the coast.

You know, it almost looked like an auto race because there were teams of birders with automobiles with signs on them and shirts and uniforms, and they're spreading up and down the coast to realize a project that, frankly, these two agencies have done together.

I mentioned Blue Elbow. We also protected together one of the most important bottom land hardwood forests in the country on the middle Sabine, and that worked for you and it worked for us.

Finally, of course, we would not be able to offer the services that we offer to our customers without your help on our parks, wildlife management areas, and hatcheries. The relationship under which you maintain and build our roads and parking facilities has made the difference for us in the past few years as to whether or not we could even keep some of these sites open.

And so we're very grateful to you, we appreciate our relationship with you, and I believe every member of our staff would tell you that we have a great privilege and pleasure of working with your staff. And they've been responsive, and it's a happy relationship at that level as well.

I did not bring you any T-shirts; however, I did bring you some items which I will leave. I brought for each of you and for Bill a commemorative box which was made at the time of the rededication of the state cemetery, a joint project of the two agencies, and a set for each of the commissioners of limestone bookends commemorating the San Jacinto Monument which we are also working on together.

So thank you for having me this morning and for all you've done for Parks and Wildlife and the natural resources of Texas.

MR. LANEY: Thank you, Andy.

MS. WYNNE: Thank you, Andy.

MR. BERNSEN: Andy, I want to take the opportunity to tell you, because I think -- I know we've been through about three or four of these meetings -- I truly believe this is going to be my last one, and I've enjoyed working with you. I commend you for the leadership that you've given to the departments and your talent and expertise that you've brought to bear on behalf of the citizens of the State of Texas. And for me personally, it's been a pleasure working with you and your staff and I just wanted to publicly say that again. Thank you.

MR. SANSOM: Thanks, Commissioner. As you know from serving here, those kind of remarks are accepted graciously, but they reflect the work of a tremendous organization of people that I'm very proud to be associated with. Thank you.

MR. LANEY: Bill, let me just add one thing. In the short stint of time, compared to the other commissions that I've been on, I've had a chance to work with Andy occasionally and see in action the relationship, and it is not only gratifying to see the close cooperation between the two agencies, but it's great to be sort of aligned with an agency that works as effectively as yours. My compliments to you all. You do a terrific job, and we're glad to be part of the process with you.

MR. BURNETT: Commissioners, Item 4 on your agenda is Promulgation of Rules and Regulations, Proposed Adoption, Chapter 13 - Materials Quality, Katherine Holtz, director of the Materials and Tests Division.

MS. HOLTZ: Good morning, Commissioners. Good morning, Mr. Burnett. I'm Katherine Holtz; I'm director of the Materials and Tests Division of TxDOT.

The minute order I bring to you today is recommended for adoption. It just repeals some rules concerning the testing of materials and the prequalification requirements for commercial labs. The rules are being repealed because they don't reflect current policy procedures and the way we're doing business now.

There are not going to be any fiscal implications or economic impact on anybody, affect any employment, that kind of thing.

The testing inspection methods have been changed in the areas of membrane curing compound, corrugated galvanized metal for culverts in underdrains, steel beam rail elements, and elimination equipment. And then in the prequalification of the commercial labs, that's all being handled under the new program out of the Design Division, so we don't need those rules there. We recommend approval.

MR. LANEY: Any comments, questions?

(No response.)

MR. LANEY: Can I have a motion?

MR. BERNSEN: So moved.

MR. LANEY: May I have a second?

MS. WYNNE: Second.

MR. LANEY: All in favor?

(A chorus of ayes.)

MR. BURNETT: Commissioners, Item 4.b. Final Adoption, Chapter 23 - Travel Information, Jim Bisson.

MR. BISSON: Good morning.

This minute order proposes final adoption of rules amending Section 23.10 concerning travel literature. The Commission had previously taken action in February with Minute Order 107084 when it proposed the amendments. The proposed rules were published in the Texas Register March 11; no comments were received. At this time, I'd recommend final adoption of the rules.

MR. LANEY: Any questions?

MR. BERNSEN: No.

MR. LANEY: Can I have a motion?

MR. BERNSEN: So moved.

MR. LANEY: Second?

MS. WYNNE: Second.

MR. LANEY: All in favor?

(A chorus of ayes.)

MR. BURNETT: Commissioners, Item 5 on your agenda, Multimodal Transportation -- Tom Griebel brings you two items.

MR. GRIEBEL: Good morning, Commissioners. I'm Tom Griebel, the assistant executive director for Multimodal Transportation.

You have two items on your agenda. The first one authorizes the department to enter into a short-term loan agreement with the AMTRAK Passenger Rail Corporation to fund a $5.6 million loan. The Senate Bill 886 was held, the appropriation passed, and my understanding, it was signed by the governor yesterday or the day before. The enabling legislation, Senate Bill 1706, is still in the House. It is scheduled or we're anticipating it to be scheduled next week for a floor debate, and then it will have to go back to the Senate for concurrence with an amendment.

The requirement in Senate Bill 1706 -- which is the Passenger Rail Assistance Program -- which is the enabling legislation authorizing us to enter into this loan agreement requires that the loan be collateralized by AMTRAK. They have pledged 20 transition dormitory cars which we are about to enter a contract with an appraiser to estimate the value of those cars, and also require that in the event of a default on the part of AMTRAK, the department would be responsible -- nonconstitutionally dedicated highway funds would be responsible for 50 percent of the unpaid balance and the other 50 percent would be pledged by the 13 cities on the Texas Eagle Route.

To date I have two pledges out of the 13, and we've requested that they return those pledges by April 25. And then subsequent to that we'll have to enter the actual agreements with the cities to collateralize the loan in the event of default.

I don't expect AMTRAK to default. They have an A minus rating on Wall Street. And the $5.6 million and defaulting on this would cost them significantly more than the interest and the principal in borrowing in other markets throughout the U.S. Staff recommends approval of this minute order, and obviously it's contingent upon passage of the enabling legislation.

MR. LANEY: Tom, has the documentation for this been done?

MR. GRIEBEL: Pardon me?

MR. LANEY: Has the documentation for the loan and the collateral package and the agreements with the cities and so forth been prepared?

MR. GRIEBEL: We're in the process right now of negotiating the loan agreement, and we've gone through the first iteration with AMTRAK. The collateral -- they've identified the 20 rail cars that they're going to pledge, and we're going to hire an appraiser to go up to Indiana to look at that collateral and give us an estimate of its value.

The pledges on behalf of the cities, the letters I've received have been two out of the 13, and we have not begun the actual pledge agreements with the cities. The intent on the part of the House sponsor, Representative Junell, who put this provision in there, is that he would expect us only to receive a letter of intent prior to us executing the loan agreement. And subsequent to that we'd actually have to do the agreement with the cities which would require full city council action.

We felt like it would be too difficult, and he did as well, to get city council action -- some of those cities are small and they meet once a month -- between now and the deadline. We have to have this loan entered and the funds wire transferred to AMTRAK by May 9, so we're under a very tight deadline.

MR. LANEY: What do you expect to be the aggregate collateral value of these 20 cars?

MR. GRIEBEL: Chairman, our initial contact with two independent consultants estimated the value between 3- and 800,000, and I hope it's that high.

MS. WYNNE: Per car?

MR. GRIEBEL: Per car. And I guess we're going to have to rely on an appraiser. Our General Services Commission has contacted three national rolling stock appraisers and we're trying to get the best bids from them on a purchase of service.

MR. BURNETT: The other condition that the House put on the bill was that before we entered into the agreement that the comptroller of public accounts would have to review the loan agreement and approve it prior to execution.

MR. GRIEBEL: And I've been in contact with the comptroller's office as we've been negotiating the loan agreement. And the interest rate -- we're still negotiating that. The comptroller's office would like to do the daily depositary interest rate which is running about 5.4 percent today.

MR. LANEY: So the lowest, 3 to 800,000 -- assuming the worst case on this estimate, we're talking about a $6 million collateral value on a five six loan, something like that?

MR. GRIEBEL: Yes, sir.

MR. LANEY: And even if you cut that in half to 3 million, we're responsible for 50 percent of the shortfall.

MR. GRIEBEL: Right. Our worst case could be a million and a half dollars.

MR. LANEY: And AMTRAK has got an A minus rating?

MR. GRIEBEL: An A minus rating, yes, sir. In discussion with the comptroller, this is a precedent. I guess it's one of the first times the State has done this to a private corporation, so we're kind of working our way through the interest rates and the other requirements.

MR. LANEY: Any other questions?

(No response.)

MR. LANEY: As you prepare the documents, would you send them to the commissioners and let us take a look at them and so forth, please?

MR. GRIEBEL: Yes, sir.

MR. LANEY: Could I have a motion?

MR. BERNSEN: I'm going to, on the record, reflect that I am not going to vote on this issue. I have not been involved in any negotiations or discussions or briefings on the issue, and I will not vote on this particular minute order, and I'd like the record to reflect that.

MS. WYNNE: In light of that abstention, I would move approval.

MR. LANEY: I second the motion.

All in favor?

(A chorus of ayes.)

MR. LANEY: Thanks, Tom.

MR. GRIEBEL: Thank you.

The next item on the agenda is the minute order 5.a.(1). It authorizes the executive director to expend monies on the Aviation Facility Development Program to fund reliever airport improvement projects.

This action, if you agree to do this, would be the first time that this department has funded reliever airports. In the past, reliever airports -- there are 21 of them in the state. Of those, four are privately owned; they are mostly around the larger urban areas. They're to relieve the congestion at the major commercial airports -- they have been funded directly by the Federal Aviation Administration.

Last December, the reauthorization bill for FAA was signed by the President, and it moved the reliever program from FAA to those states that operate a block grant -- which we are a block grant state. We are one of ten now.

And we built the program based on what was already in the pipeline by the Federal Aviation Administration, and they had two years projected. We worked very closely with the regional office in Fort Worth.

We're recommending a program in fiscal year '97 -- which we're into it and we're late because the program was reauthorized very late -- 8.6 million, approximately, in fiscal year '97. And in fiscal year '98, depending upon the appropriation for FAA in fiscal year '98, we're recommending a $7.3 million program.

And staff recommends approval.

We've held public hearing March 7, 1997, and the Aviation Advisory Committee, as required by rules, has reviewed the program. Are there any questions?

Staff recommends approval.

MR. LANEY: Any questions?

MS. WYNNE: I have a question on this, maybe for Dave Fulton. Are we taking away money from our smaller airports and giving it to Addison and Fort Worth?

MR. GRIEBEL: No. The federal appropriation that came to us was increased to in excess of approximately $8.5 million for fiscal year '97. That included roughly an additional $8.5 million for the reliever airports. So we got a larger federal appropriation from the process, so we are not taking away from the smaller airports in our federal program.

MS. WYNNE: I just want to see Dave Fulton's head. Do you think that's a good idea? Not to put you on the spot.

MR. FULTON: Yes. What actually happened is the reliever is just a funding set-aside and the federal government rolled it into the general aviation state apportionment, along with another category called nonprimary commercial service, very low activity commuter airline airports, for a combined total of 18-1/2 percent of the total grant program.

In the past the states had gotten 12 percent of the total grant program, so they just rolled the funding category in. We do have discretion there to move it back and forth, but it will not impact the general aviation airports.

MS. WYNNE: Great. Thank you.

MR. LANEY: Dave, before you leave, I've got a question that one or the other of you might want to address. I see at least one -- and I may not be even clear on the one -- privately owned airport in here. Is that not the case?

MR. GRIEBEL: We're not authorized to fund privately owned airports at this time. As you recall, there's legislation that's right now in the House to authorize us to fund privately owned airports. We don't have statutory authority to do that. And the one you have identified?

MR. LANEY: Alliance.

MR. GRIEBEL: Alliance is not privately owned; it's owned by the City of Fort Worth and operated by the Perot Group. And David and I just talked about that yesterday, as a matter of fact. There's a misperception that somehow that it's a privately owned airport, but it is the property of the City of Fort Worth.

MR. LANEY: Any other questions?

(No response.)

MR. LANEY: Can I have a motion?

MS. WYNNE: Move approval.

MR. BERNSEN: Second.

MR. LANEY: All in favor?

(A chorus of ayes.)

MR. BURNETT: Commissioners, Item 6 on your agenda, Programs -- we bring you one item and Robert Cuellar brings you that item.

MR. CUELLAR: Agenda Item 6 deals with Farm to Market Road 734, also known as Parmer Lane, in northeast Travis County. The minute order requests that the Commission approve moving this project up to Priority 1. This one-mile section has an overall cost of $3.3 million. The minute order also requests that the Commission allow for $2.2 million of additional funds to be placed in the district discretionary funds.

This project does provide needed critical access to the Samsung plant. The county has agreed and has provided 100 percent of the right of way, all utility adjustments, all preliminary engineering plans, and has committed $5 million towards the construction of this overall project.

Staff would recommend approval of this minute order.

MR. LANEY: Any questions?

(No response.)

MR. LANEY: Are there any salamanders in this area?

MR. CUELLAR: Not that we're aware of, sir.

MS. WYNNE: Nary a one.

MR. LANEY: Could I have a motion?

MR. BERNSEN: So moved.

MR. LANEY: Second?

MS. WYNNE: Second.

MR. LANEY: All in favor?

(A chorus of ayes.)

MR. BURNETT: Commissioners, Item 7.a. Transportation Planning, Al Luedecke brings you that item. And Chairman, we have one speaker signed up to speak on this item.

MR. LUEDECKE: Good morning. I'm Al Luedecke, director of Transportation Planning and Programming Division for the department.

In June of 1986 the Commission approved the creation of the San Marcos Parkway Association, a transportation corporation. In November of last year, the Commission adopted Texas Administrative Code rules addressing the creation and operation of transportation corporations. The new sections state, in part, that the Commission may dissolve or authorize the dissolution of a corporation upon finding that the existence of the corporation is no longer advisable.

The association's board of directors has advised the Commission of their desire to dissolve the corporation as being no longer necessary or convenient for the purposes of promoting and developing the transportation facilities and systems, specifically in this case, a farm to market road extending in a loop configuration from I-35 North around the city of San Marcos approximately 26 miles.

As required by the rules, the corporation has transferred its assets, a check for $1001.58, to the department. All but one of the members of the association's board of directors have executed affidavits certifying that there are no outstanding claims, debts or judgments either in favor or against San Marcos Parkway Association, nor is there any litigation pending to which either the association or any of the board members, in his or her official capacities, is a party.

The sole asset held by the San Marcos Parkway Association consisted of the bank balance previously paid to the department and no funds have since been received or deposited in any accounts of a financial institution. And finally, no real property was acquired by the association during their term of office, nor are they aware of any prior acquisitions.

We recommend that the Commission adopt the accompanying minute order and authorize the dissolution of the San Marcos Parkway Association.

MR. LANEY: Thanks, Al.

We have one speaker signed up on this item -- I may mispronounce the name -- Ms. Jane Hughson, director of the San Marcos Parkway Association.

MS. HUGHSON: That is correct. Good morning, Chairman Laney, Commissioner Wynne, Commissioner Bernsen, and Mr. Burnett. Thank you for this opportunity to speak to you about the dissolution of the San Marcos Parkway Association. I am Jane Hughson, soon to be a former director of the San Marcos Parkway Association.

We ask that you not interpret the dissolution of the San Marcos Parkway Association as a lack of support for FM 110. We're very much looking forward to the construction of FM 110 as a solution to many of our transportation problems in San Marcos.

The parkway group began over ten years ago with about 30 members as a committee of the chamber of commerce. When the transportation development corporation was formed, the rest of the group continued as an advisory committee to the corporation and many of those members have been attending meetings all these years.

TxDOT has always assisted us, attended our meetings, keeping us up to date and answering all questions. Mr. Robert Steward and Ms. Sharon Barta have been extremely helpful and we thank you for their assistance.

In the fall of this year, I received the proposed bylaw changes for transportation development corporations. Those changes included a provision that elected officials could no longer serve. That meant that I, as a City of San Marcos council member, and also the treasurer and acting secretary of the corporation, could no longer serve.

In addition, the term limit of six years, to be retroactive, meant that five other members of our board of seven could no longer serve. I wrote a letter asking for some interim solution such as letting half of the members of the board, those with least tenure, continue to serve for a year or so, so that a transition could take place. However, the bylaws were approved as proposed.

The corporation met in December to discuss our options. At that time we were advised that current members of the board could start over with the application process. During that meeting we discussed the life of the Parkway Association and recalled how the organization came to be in the first place. We also discussed the main responsibility of a TDC which is to assist in right of way acquisition. As you know, that process is still a few years away.

So we decided, with what lay before us, that we would dissolve the corporation for now, go back to the way we began with a large committee, and we'll seek members of this committee from all over Hays County to assist in educating the public about FM 110. From that group, we'll repeat what happened over ten years ago: some of those members will form another transportation development corporation when the time is right and before TxDOT is ready for us to assist with right of way acquisition.

Thank you for your time, and I'd be happy to answer any questions that you have.

MR. LANEY: Anybody have any questions of Ms. Hughson?

(No response.)

MR. LANEY: Thank you, Ms. Hughson. Appreciate your coming and appreciate the clarification.

Any questions about the action?

(No response.)

MR. LANEY: Can I have a motion?

MS. WYNNE: So moved.

MR. BERNSEN: Second.

MR. LANEY: All in favor?

(A chorus of ayes.)

MR. BURNETT: Commissioners, Item 8 on your agenda is Contracts, and John Aldridge, the deputy director of the Construction and Maintenance Division brings you these items.

MR. ALDRIDGE: Good morning, Chairman Laney, Commissioner Wynne, Commissioner Bernsen, Mr. Burnett.

Behind Tab 8.(1) we have the highway maintenance contracts that were let on April 8 and April 9. There was a total of 41 projects let for bid. We received an average of 3.41 bids per project. The low bid was 8.7 million which was an underrun of $567,000 for an average of 6.10 percent.

If you refer to page 2, we recommend for rejection the one near the bottom of the page, Project 4032 on Concho County. There was two bidders and it was 81 percent over the estimate. The district wants to redesign and relet the project.

And then on page 8, the second from the top, Project 4044 in Travis County. There was one bidder and it was 19.86 percent over. We feel like we have a good estimate on that project. The district wants to relet it, and we recommend rejection of that one.

If I might call your attention to page 5, we'd like to explain one near the bottom of the page there, Project 4017 in Harris County. The project was 16.93 percent over. We feel like the estimate was low. We found out that the insurance is probably higher and some increased traffic controls in that area, so that's why we were a little bit low in our estimate there.

All the other projects had competitive bids and justify being awarded, and we so recommend.

MR. LANEY: Any questions?

(No response.)

MR. LANEY: Motion?

MR. BERNSEN: So moved.

MS. WYNNE: Second.

MR. LANEY: All in favor?

(A chorus of ayes.)

MR. ALDRIDGE: Under Tab 8,(2) we have the building construction projects that were let on April 3. We had two projects; we received an average of four bids per project, and the total was $666,400 which was an overrun of 64,000 which was an overrun of 11 percent. I might call your attention that both of those contracts were won by DBE/HUB low bidders.

We have one we recommend for rejection on page 1. It's near the top there in Ector County. The estimate was reasonable but the district wants to relet it. We had one bidder and it was 40 percent over the engineer's estimate.

So the other project in this section had competitive bids justifying the award, and we would so recommend.

MR. LANEY: Can I have a motion?

MR. BERNSEN: So moved.

MS. WYNNE: Second.

MR. LANEY: All in favor?

(A chorus of ayes.)

MR. ALDRIDGE: Under 8.(3) the first item here is Bastrop County project. It is a building project. Bids were received on February 6, 1997 for construction and maintenance of an engineering building in Bastrop County. Minute Order 107097 dated February 27, awarded the contract to Tremor Consulting Contractors, Inc., Del Valle, for $1,000,453. The department distributed some misinformation and some misleading contract information. The department has mutually agreed with the contractor to cancel the award. We recommend that Minute Order 107097 dated February 27 be canceled, a proposal guarantee returned to Treemor, and rescind the minute order.

MR. LANEY: Where is that?

MR. ALDRIDGE: It's in Bastrop County. It's behind 8.(3).

MR. BURNETT: It was a building contract for a maintenance and engineering building in Bastrop County, and there was considerable confusion at the bid opening and some mis-statements and some correct statements by some of the people at the bid opening. The successful bidder brought it to our attention at the bid letting. This was let back in February. When we brought this to you in February, the department's position at the time was that it still was a good bid.

Since then, as Mr. Aldridge and Mr. Zatopek, and others, Mr. Templeton, have visited with the bidder and visited those people in the department, the amount of confusion as to who said what when brings us to this point. And we think in fairness to all, it would be best to, as John recommended, reject the bid. And we believe that the successful bidder did act in compliance and that he is due the return of his bid check.

MR. LANEY: Can I have a motion?

MS. WYNNE: So moved.

MR. BERNSEN: Second.

MR. LANEY: All in favor?

(A chorus of ayes.)

MR. ALDRIDGE: Continuing in 8.(3), we have the highway construction contracts that were let on April 8 and April 9. There was 149 projects let; we received an average of 4.45 bids per project. The total low bid was 273.5 million. That was an underrun of 16.8 million, or 5.78 percent.

We recommend the rejection of seven projects in this letting. Starting out on page 2, this was low bid by N.G. Painting of Bexar County, and they submitted a bid that was too low to do the work on this project. And it really wouldn't serve any purpose to award the contract to this contractor since there would be no performance bond on this contract. The bidder would sign the contract and receive back his proposal guarantee and then would default on the work, and the only thing that would do is set us behind a couple of months, so we can't see awarding this project.

The next one is on page 7 near the middle of the page, Job 3149 in Deaf Smith County. There were three bidders but it was 70 percent over the engineer's estimate, and the estimate appears okay, but we'd like to combine this with a couple of other projects and relet this at early date.

Page 15 at the bottom of the page there -- on Project 3071 in Hemphill County, there was two bidders and it was almost 59 percent over. The estimate is okay on this project also and this is one we'd like to combine with the previous job and relet this one.

And then on page 22, again near the middle of the page, Project Number 3097 in McLennan County. There was only one bidder; it was 22 percent over. The estimate appears to be adequate. The district wants to relet this project and they feel like there's a lack of competition in this bid.

The next one is page 25, top of the page, Project 3145 in Potter County. There was three bids; it was 44 percent over. The estimate appears adequate. And this is the third job that they wanted to combine in these three with Job 3149 and 3071, and combine them and relet them at an early date.

The next one is on page 27, the bottom of the page, Job 3143 in Tarrant County. There was one bidder, 45 percent over. The district is unable to fund this project; they want to rescope it and relet this project.

And finally, page 29, second from the bottom there, Job 3053 in Waller County. There were six bidders but it was still 66 percent over, almost 67. We found there's a plan error in the plans. They put the bid item in of 263 which was a plant mix lime-treated base, and the intent was item 262 which is road mix. And it bid considerably higher than they expected.

On page 5 there is an explanation of one. It's the second from the bottom, Job 3155 in Culberson County. We have some small quantities -- there were two bidders and it was 38 percent over -- small quantities. The haul distance for the base and hot mix was more than we expected, and it's worked through the City of Van Horn, but we do want to award that one.

And then on page 6, right behind this one, is Project 3081 in Dallas County. We had six bidders on this one, but we'd recommend deferment of this award until after the Commission meeting in May to further evaluate the A Plus bidding methodology technique in determination of the apparent low bidder. We have a letter from the low bidder, Balfour Beatty, that they will honor their prices until after the May meeting.

All the other projects that were in this letting had competitive bids and justify award, and we so recommend.

MR. LANEY: One question, if I can, on page 7, the very last one there. It's a little bit like the one you rejected but not quite as deep in terms of the discount. You've got a bid that's about half of the estimate for a bridge clean-up deal. You're comfortable with that?

MR. ALDRIDGE: The district and the design recommend award. There was no comments by the contractor one way or the other on this one. We usually get a phone call from him pretty quick, and we haven't received any thus far.

MR. BURNETT: I think, also, the major difference is this one does require a performance bond where the other one John pointed out did not require a performance bond.

MR. LANEY: Any questions?

(No response.)

MR. LANEY: Can I have a motion for approval?

MR. BERNSEN: So moved.

MS. WYNNE: Second.

MR. LANEY: All in favor?

(A chorus of ayes.)

MR. ALDRIDGE: We're almost complete. A little further on in Tab b. we have a default in Childress County. The bids were received on February 5. It was awarded on February 27 by Minute Order 107096 for routine maintenance. The contractor has not complied with the execution and bonding requirements contained within the bid proposal. We recommend that this Minute Order 107096 be canceled and that C&D Maintenance be declared in default of their contract, and their proposal guarantee in the amount of $15,000 be deposited in the state treasury to the credit of the State Highway Fund.

MR. LANEY: Motion?

MR. BERNSEN: So moved.

MR. LANEY: Second?

MS. WYNNE: Second.

MR. LANEY: All in favor?

(A chorus of ayes.)

MR. ALDRIDGE: And the final item is in Montgomery County, it's cancellation of a contract. The bids were received on March 4, 1997. It was awarded March 27 by Minute Order 107121 in Montgomery County, Tomball, Texas. The department recognizes that the specifications were unclear and that the contract should be canceled. We recommend that Minute Order 107121, dated March 27, awarding a contract to Miltex Construction, Inc., be canceled and the proposal guarantee returned to the contractor.

MR. LANEY: Motion?

MR. BERNSEN: So moved.

MR. LANEY: Second?

MS. WYNNE: Second.

MR. LANEY: All in favor?

(A chorus of ayes.)

MR. BURNETT: Commissioners, Item 9. Contested Cases. In Carson County, Russell Harding brings you this item.

MR. HARDING: Mr. Chairman and Commissioners. This agenda item involves enforcement action by the department under the rules that regulate outdoor advertising signs to cancel three outdoor advertising permits held by Ace Resources, Inc.

The department is responsible for enforcement of the Texas Litter Abatement Act which was originally enacted to comply with the Federal Highway Beautification Act of 1965, and our rules were adopted to enable us to implement that.

The cancellation of the permits was appealed and a hearing on the appeal was heard by an administrative law judge with the State Office of Administrative Hearings. After considering the evidence, the administrative law judge found that the department correctly determined that the signs had been removed and replaced in violation of the department's rules and were not repaired as the permit holder claimed. And they also found that the cancellation of the sign permits was proper.

The administrative law judge recommended that the Commission affirm the cancellation of the permits. And that is what is presented to you today, a minute order adopting the findings and conclusions contained in the administrative law judge's proposal for decision and to affirm the cancellation of the three sign permits, and the staff recommends your approval.

MR. LANEY: Any questions or comments?

(No response.)

MR. LANEY: Can I have a motion?

MS. WYNNE: So moved.

MR. BERNSEN: Second.

MR. LANEY: All in favor?

(A chorus of ayes.)

MR. BURNETT: Commissioners, Item 10. Routine Minute Orders. Section a. Speed Zones. In various counties as attached to the minute order, request your concurrence to establish or alter regulatory and construction speed zones on the various highways.

Section b. Highway Designation. In Hill County, Spur 314, to remove it from the State Highway System. In Howard County, on new location designate a new farm to market highway near the city of Big Springs. And in Wharton County on Loop 525, to redesignate it as Business Loop 59S.

Item c. Right of Way Disposition, Purchase and Lease. In Bexar County on FM 2696, authorize the sale and release of a surplus drainage channel easement. In El Paso County on Interstate 10, authorize the sale of surplus right of way to the abutting land owner.

Item d. Eminent Domain. In various counties, as attached to the minute order, request your concurrence for the department to begin eminent domain proceedings on controlled and non-controlled access highways as attached to the minute order.

Request your approval.

MR. LANEY: Mr. Bernsen, do you want to make a motion? It will be your last motion.

MR. BERNSEN: Last motion: So moved.

MS. WYNNE: Second.

MR. LANEY: All in favor?

(A chorus of ayes.)

MS. WYNNE: Actually, I think that could be his next to the last motion.

MR. LANEY: He can make the last motion.

MR. BERNSEN: Move to adjourn?

MR. LANEY: Not yet.

MS. WYNNE: When we get there, I think it's your motion.

MR. BURNETT: Commissioners, Item 11. Executive Session. Pursuant to Government Code 551, staff needs to meet with you in executive session on Section 551.071, consultation with and advice from legal counsel concerning pending and contemplated litigation settlement offers and negotiations.

MR. LANEY: At this time the meeting will be recessed for the Commission to meet in executive session, pursuant to notice as given in the meeting agenda filed with the Office of the Secretary of State, and we will reconvene at 10:30. Thank you.

(Whereupon, at 10:00 a.m., the meeting was recessed to reconvene following executive session.)

MR. LANEY: The meeting of the Texas Transportation Commission is reconvened. The Commission has concluded its executive session with no action being taken on any matter. And if there's no further business before the Commission, I will entertain a motion to adjourn. Would you like to stand for the motion?

MR. BERNSEN: Yes. This is my last motion and I'll do it the best way I can. Move for adjournment.

MR. LANEY: What if there's no second?

MR. BERNSEN: We've got problems.

(Laughter.)

MR. LANEY: Do we have a second?

MS. WYNNE: What's it worth?

MR. BERNSEN: A road.

MS. WYNNE: A road? Two hundred grand.

(Laughter.)

MR. BERNSEN: That's it. Negotiable.

MS. WYNNE: Second.

MR. LANEY: All in favor?

(A chorus of ayes.)

MR. LANEY: The meeting is adjourned.

(Whereupon, at 10:42 a.m., the meeting was concluded.)

C E R T I F I C A T E

MEETING OF: Commission Meeting

LOCATION: Austin, Texas

DATE: April 23, 1997

I do hereby certify that the foregoing pages, numbers 1 through 41, inclusive, are the true, accurate, and complete transcript prepared from the verbal recording made by electronic recording by Penny Bynum before the Texas Department of Transportation.

04/25/97

(Transcriber) (Date)

On the Record Reporting, Inc.

3307 Northland, Suite 315

Austin, Texas 78731

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