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Section 4: Agreements and Negotiations

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After coordinating the necessary design modifications for the construction or reconstruction of a highway-railroad grade separation, the Traffic Operations Division (TRF) and the Design Division (DES) negotiate an agreement with the railroad for all necessary force account work, including temporary adjustment of railroad fences and cattle guards and temporary and permanent pole line adjustments at the proposed structure.

The railroad performs, at state expense, any work necessary for adjustment of facilities located on railroad right of way to accommodate the construction of a grade separation.

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Agreement Preparation

TRF prepares the agreement, using the plan layout furnished by the district as Exhibit A, and forwards it to the railroad.

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Agreement Contents

The agreement contains:

  • project data
  • a license clause
  • plans, estimates, construction, and maintenance
  • insurance clauses
  • payment clause
  • conditions
  • fiber optic clause.

Discussions of each of these items follow.

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Project Data

Project data include the location of the project: county, CSJ, highway, project number, DOT number, and city.

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License Clause

The license clause gives the state permission to construct, maintain, and use the grade separations across the railroad property.

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Plans, Estimates, Construction, and Maintenance

“Plans, estimates, construction, and maintenance” includes all work to be performed by TxDOT, TxDOT’s contractor, and the railroad. It spells out the responsibilities of both the railroad and the state.

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Insurance Clauses

The insurance clauses specify 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 TxDOT’s contractor requires railroad protective liability insurance in the amount of at least two million dollars for bodily injury and property damage; and six million dollars aggregate for all occurrences. The railroad protective liability insurance must be carried until all work on railroad property is completed. Insurance requirements are spelled out in the Special Provision to Item 007.

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The payment clause specifies the conditions under which the state will reimburse the railroad and when this will occur. Reimbursement is made to railroad only if a work order has been issued to the railroad to begin work. The railroad is reimbursed for work performed and materials furnished, in accordance with the provisions of the FAPG Subchapter B, part 140, subpart I, issued by the Federal Highway Administration on April 7, 1992. The railroad can be reimbursed for up to 95 percent of the total cost of all railroad work through progressive billings as the work is performed. The complete balance due the railroad is paid, upon final audit by TxDOT’s Audit Office.

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The conditions clause provides that the agreement can be canceled at any time prior to actual letting of the contract by TxDOT. It specifies whether the railroad is required to participate in the cost of the project.

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Fiber Optic Clause

All Class I (major) railroad companies may have fiber optic cable buried on their ROW, it is important that the railroad be contacted at a 1-800 number, as shown in the agreement, prior to any work being performed to determine if fiber optic cable is buried on the ROW. By calling the 1-800 number, any fiber optic cable in the area will be identified and who the cable belongs to. It is the District's responsibility to contact that 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.

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TRF coordinates all negotiations concerning the agreement, including any revisions in the scope of work, with the district and railroad.

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After Execution

Upon receipt of the signed agreements, the TRF forwards a copy of the executed agreement, along with the railroad estimate (if available), to the district, the Finance Division (FIN), and the Federal Highway Administration (FHWA) if required. TRF also advises DES of receipt of the executed agreement.

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