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Section 4: C&M Agreements

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Drafting the C&M Agreement

TRF-RSS will draft the C&M Agreement if a project is being constructed by TxDOT. Before a C&M Agreement is submitted by TRF-RSS to the railroad company, a few steps are required:

  1. TRF-RSS must have received and approved the railroad cost estimate.
  2. Design approval from the railroad company is required on all bridge and drainage projects.
  3. Railroad company approval of as-let PS&E (Exhibit B) is required for underpass projects.
  4. If the C&M Agreement involves more than two parties (TxDOT & the railroad company), a draft C&M Agreement must be submitted to all parties for comment and approval.
  5. Approval of Metes & Bounds (as needed).
  6. Approval of the Theoretical (5%) cost share (as needed).
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Types of C&M Agreements

TRF-RSS works with the railroad companies to minimize the number of C&M Agreement templates. Typical C&M Agreement templates include:

  • Overpass: new, replaced, or modified with no railroad company cost participation.
  • Overpass with 5% Railroad Company Cost Participation: used when a new overpass removes an existing active at-grade crossing and federal funding is used on the project.
  • Underpass: new, replaced, or modified or when an existing underpass is converted to an overpass or brought to grade when the roadway is removed.
  • Force Account: typically used when the railroad company provides services such as signal or track work on projects involving roadway widening, new at-grade crossings, planking, etc.
  • Preemption: similar to Force Account Agreements, but used when project includes traffic signal preemption.
  • Common Ditch or Joint Usage: typically used for highway projects which parallel a rail line and work encroaches onto the railroad right-of-way; also used for culvert projects which either encroach on railroad right-of-way or go under tracks.
  • Conduit Under or Over Track: typically used for Intelligent Transportation Systems (ITS) conduits crossing railroad right-of-way.
  • Supplementary Spur Permit: used on TxDOT projects where the railroad company has crossed TxDOT right-of-way by spur permit. In these agreements, the railroad company is typically responsible for all costs incurred for work performed by the railroad company.
  • Crossing Closure: used when an existing at-grade crossing is closed and approaches to an at-grade crossing are removed.
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C&M Agreement Content

Although there are several forms of C&M Agreements, most of these agreements are similar in nature and include:

  • a description of work and responsibilities on the project by all parties signing the agreement
  • a statement of license the railroad company is providing to TxDOT and local government for use of railroad property
  • a statement of any fees TxDOT or other party will pay to railroad company
  • clarification of maintenance responsibilities for all parties in the agreement both during and upon completion of project
  • a statement requiring TxDOT and local government to require contractors to provide railroad insurance and enter Right-of-Entry Agreement with the railroad company prior to working on railroad right-of-way
  • a payment article that clarifies that the railroad company must have Authority to Order Materials from TxDOT or the local government before ordering materials and must have a Work Order from TxDOT or the local government before beginning installation of track work or railroad signals and warning devices
  • a termination article that allows any signatory party to cancel the agreement
  • a fiber optic article to clarify that the TxDOT contractor will contact the railroad company for locating fiber optic cable prior to construction
  • various articles required on all TxDOT agreements
  • signature blocks for all parties signing the C&M Agreement
  • exhibits attached to the agreement typically include:
    • Exhibit A plan set
    • Exhibit B (as let PS&E plan set) title sheet signed by all parties (overpass or underpass projects only)
    • Railroad company estimate for labor and materials provided by the railroad company
    • Metes & Bounds Property Description for project footprint on railroad right-of-way
    • Sample railroad company Right of Entry Agreement
    • Previously executed PE Agreement (if applicable)
    • Previously executed AFA (if project involves local government)
    • Previously executed design build contract (if agreement involves developer who is designing and building project)
    • 5% Theoretical Cost Estimate for railroad company cost participation (if applicable).

In some cases, a project may occur at a location where the railroad track crosses a highway facility by spur permit where TxDOT owns the right-of-way. In these cases, a supplementary Spur Permit Agreement is executed with an attached Exhibit A showing all work to be done by the railroad company or private industry owning the track with no attached cost estimate since all cost is borne by the railroad company or private industry.

For more information on spur permits, see Chapter 6 of this manual.

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Easements vs. License Agreements

It is standard TxDOT practice to pursue license agreements on construction projects impacting railroad rights-of-way. TxDOT does not pursue easements on railroad rights-of-way and TRF-RSS works with the Right-of-Way Division to negotiate any terms and fees related to license agreements with railroad companies.

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Agreement Execution

Railroad company review of the C&M Agreement typically requires internal approval from several parties, including:

  • Engineering
  • Legal
  • Real Estate
  • Track Planning (depending on project scope).

After all railroad companies and local governments have executed the C&M Agreement, TRF-RSS will execute the agreement and the agreement is considered fully executed.

The agreement is then uploaded into the TRIMS project management module by the TRF-RSS Contract Specialist. TRF-RSS will send original copies of the agreements to all signing parties and send scanned copies to the District Railroad Coordinator as well as FIN. The agreements are uploaded into the Finance Imaging Database by FIN.

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Exhibit B Approval

On overpass projects, the C&M Agreement will typically require that all signatory parties sign the title sheet of the as-let PS&E (Exhibit B) before the contractor can access railroad right-of-way. Exhibit B submittal from the TRF-RSS Contract Specialist to the railroad company will occur:

  • after the project lets if C&M Agreement is executed prior to letting
  • with the fully executed C&M Agreement if C&M Agreement is executed after project has let.

The Exhibit B signed title sheet is then attached to all original copies of the C&M Agreement.

On underpass projects, the Exhibit B must be signed by all parties prior to execution of the C&M Agreement.

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C&M Agreement Submittal to Federal Highway Administration (FHWA)

On projects which involve federal oversight, TxDOT may be required to submit a copy of the fully executed C&M Agreement to the Federal Highway Administration (FHWA). The FHWA will review and approve the C&M Agreement by signing the title sheet on a copy of the C&M Agreement.

TRF-RSS provides a copy of the C&M Agreement to the Design Division (DES), which coordinates FHWA review and approval.

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Agreement Amendments

If an agreement needs to be modified after the C&M Agreement has been fully executed, TRF-RSS will draft an agreement as needed. An agreement amendment is typically needed when:

  • the scope of work for the project has changed
  • a new required article is needed in the C&M Agreement as determined by the Contract Services Office (CSO)
  • a mistake in the C&M Agreement or any of its attachments is identified.

TRF-RSS will coordinate signatures from all parties.

An agreement may be terminated by a letter from TxDOT to the railroad company.

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