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Section 3: Agreements and Negotiations

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Introduction

Using the plan layout furnished by the district as Exhibit A, the Traffic Operations Division (TRF) prepares the necessary agreement and forwards it to the railroad company.

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Negotiations and Processing

TRF coordinates all negotiations concerning the agreement, including any revisions made by the district or railroad.

The railroad furnishes an estimate (or bids solicited by the railroad) to TRF showing all reimbursable work to be performed by the railroad. TRF approves the estimate, attaches it to the executed copies of the agreement, and forwards the railroad’s copy back to them. The district, the Finance Division (FIN), and FHWA (if required) each receive a copy of the executed agreement and estimate.

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Agreement Contents

The agreement contains:

  • project data
  • a license clause
  • insurance clauses
  • a payment clause
  • conditions
  • a fiber optic cable clause.

Discussions of each of these items follow.

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Project Data

The project data identifies the project by:

  • county
  • control-section-job (CSJ)
  • highway
  • project number
  • DOT No. (if available)
  • the city or nearest city.
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License Clause

The license clause gives TxDOT license and permission to perform the necessary drainage work on the railroad right-of-way. The clause also describes the work to be performed by all parties, including flagging of trains by the railroad, if required.

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Insurance Clauses

The insurance clauses specify the type of insurance the contractor needs 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 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 spelled out in the Special Provision to Item 007.

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Payment 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.

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Conditions

The conditions clause explains that the agreement can be canceled at any time prior to actual letting of the contract by TxDOT. It also details any FAPG requirements for cost participation in the project by the railroad.

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Fiber Optic Clause

All Class I (major) railroad companies have fiber optic cable buried on their rights-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 cable 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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