Section 3: Agreement and Negotiations
Anchor: #i1000418Introduction
Using the Exhibit A plan layout furnished by the district, the Traffic Operations Division (TRF) prepares the necessary agreement and forwards it to the railroad company. TRF coordinates any questions or revisions resulting from the railroad company review with the district.
Anchor: #i1000428Agreement Contents
The agreement contains:
- project data
- a license clause
- scope of work
- construction and maintenance conditions
- insurance clauses
- payment clause
- solicitation of bids clause
- conditions
- fiber optic clause.
Discussions of each of these items follow.
Anchor: #i1000487Project Data
Project data include:
- the county
- control-section-job (CSJ)
- highway
- project number
- DOT No. (if available)
- the city.
License Clause
The license clause gives TxDOT license and permission to construct, maintain, and use the new roadway across railroad ROW. If the roadway is being widened and no additional railroad ROW is required, the license clause does not need to be included.
Anchor: #i1000537Scope of Work
The scope of work includes all work to be performed by TxDOT, TxDOT’s contractor, and the railroad. It spells out the responsibilities of both the railroad and TxDOT.
Anchor: #i1000547Construction and Maintenance
The construction and maintenance clause describes to the railroad the conditions of work. The railroad must begin work within 30 days after having been issued a work order from TxDOT and must proceed without delay to completion. (See Section 4 of this chapter for more information on the work order.) The railroad will not be paid for any work performed at the job site prior to the work order date. The railroad company is given the authority to assemble all materials for the project sufficiently in advance to assure prompt delivery to the job site.
Anchor: #i1000561Insurance Clauses
The insurance clauses specifies the type of insurance the contractor will need to purchase on behalf of the state and railroad. All work performed on the railroad right-of-way by the TxDOT contractor requires railroad protective liability insurance in an amount of not less than two million dollars for bodily injury and property damage and not less than six million dollars aggregate for all occurrences. The railroad protective liability insurance must be carried until all work on the railroad property is completed. Insurance requirements are included in a Special Provision to Item 007 of TxDOT’s contractor’s bid specifications. If state forces perform the work, no insurance provisions are required in the agreement because TxDOT is self-insured.
Anchor: #i1000571Payment Clause
The payment clause specifies when and under which conditions TxDOT will reimburse the railroad. Reimbursement is made to the railroad only if a work order has been issued to begin work. The railroad is reimbursed for work performed and materials furnished in accordance with the provisions of the Federal Aid Policy Guide (FAPG), Subchapter B, Part 140, Subpart I, as last issued by the Federal Highway Administration on April 7, 1992. The railroad is reimbursed the actual total cost of all railroad force account work performed and materials used or installed. However, upon final audit by the Audit Office of TxDOT, the railroad may be required to reimburse TxDOT any over payment that cannot be justified.
Anchor: #i1000583Solicitation of Bids Clause
The solicitation of bids clause is only included in the agreement for railroad companies that do not have their own forces to perform railroad work and must hire a contractor to perform railroad force account work. This clause notifies the railroad that they must solicit a minimum of three bids from qualified contractors to perform the railroad force account work. The railroad is also allowed to submit an estimate for administrative costs and construction inspection, which is reimbursed on an actual cost basis upon receipt of an itemized bill. Upon receipt of the bids, the railroad reviews the bids and forwards them to TRF for approval with a recommendation of the contractor they would prefer. TRF reviews the bids and awards the contract. Under state contracting policy, the contract is normally awarded to the lowest bidder, unless other mitigating factors prevail. TRF advises the railroad in writing as to which contractor was awarded the project and the cost of the work. The approved bid will be the exact lump sum amount paid to the railroad for the work performed. The railroad is responsible for reimbursing its contractor.
Anchor: #i1000597Conditions
The conditions clause describes how the agreement can be canceled at any time prior to actual letting of the contract by TxDOT. Also, any cost participation by the railroad is identified in accordance with FAPG requirements.
Anchor: #i1000610Fiber Optic Clause
Most of the major railroads have fiber optic cable buried on their right-of-way. Therefore, it is important that the railroad be contacted at a 1-800 number (which is identified in the agreement) prior to any work being performed, to determine if fiber optic cable is buried on the right-of-way. Also, the location of the fiber optic cable and who it belongs to can be identified. It is the district’s responsibility to contact the fiber optic company to advise them of the proposed work and to determine if the cable will be affected by the work. This clause is important to the railroad companies, because of the very high costs associated with broken or damaged fiber optic cable.
Anchor: #i1000620Negotiations
TRF coordinates all negotiations concerning the agreement, including any revisions. These negotiations are coordinated with the district when corrections or revisions to the plan layout are involved.
Anchor: #i1000630After Execution
Upon receipt of the signed agreements, TRF forwards a copy of the executed agreement along with the railroad estimate (if available) or the approved bid to the district, the Finance Division (FIN), and the Federal Highway Administration (if it is a federal-aid project).