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Section 3: Memorandums of Understanding (MOU)

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Overview

Development of MOUs will aid in developing a partnering atmosphere between the Districts and their counterparts in the utility industry. Partnering will promote and encourage empowerment at the District level by building confidence among participants so that the goals of the UAR and this Utility Manual are being met locally.

The Utility Memorandum of Understanding (MOU) is a non-binding, voluntary instrument that documents the relationship between a utility and TxDOT. The purpose of the MOU is to educate both parties concerning their roles and responsibilities necessary to achieve effective coordination of highway utility activities.

The utility accommodation and adjustment process will be enhanced by:

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  • The development and maintenance of effective working relationships between TxDOT and the utility industry.
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  • Mutual commitment by both parties to cooperation during highway utility activities.
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  • Improved understanding of the parameters that control each party’s activities.
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  • Advance agreement on procedures and responsible participants for performance of highway-utility activities.
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  • Establishment of a Utility Coordination Steering Committee to provide executive level commitment and strategic direction.

There is no expiration date or duration associated with the MOU; however, as conditions or participants change, or with a significant passage of time, an updated MOU may be used to renew commitments or to reeducate the participants.

The success of the MOU is evidenced by cooperative and productive relationships between TxDOT and the utility industry.

The Instructional Guide for the Utility Memorandum of Understanding provides direction for the development and appropriate use of the MOU.

Form ROW-MOU-1 contains the basic information necessary for a foundation document and may be modified as required to address local conditions. The District Director of Transportation Planning and Development (TP&D) is responsible for preparation and implementation of the MOU. Involvement with as many utilities as possible is encouraged, especially all major local utility providers.

Form ROW-MOU-2 for execution between TxDOT and utility trade associations. The trade association MOU will be executed on behalf of TxDOT by the ROW Division Director and by the Executive Directors of the trade associations as noted in the Instructional Guide. The following is a representative list of utility trade associations.

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Instructional Guide for the Utility Memorandum of Understanding

The Utility Memorandum of Understanding (MOU) is a voluntary, non-binding document between TxDOT and a utility partner. The intent of the document is to clarify responsibilities and duties of both parties in the pursuit of an effective cooperative relationship. As a District implements “The Process," it is suggested that the MOU be used to:

The sample MOU that accompanies these instructions is a foundation document upon which to build. The information included in the foundation document is essential and should be retained in the final instrument prepared by the District. Preparation of the MOU will be the responsibility of the District Director of TP&D. The MOU may be tailored to address the individual needs of each utility service provider and Districts may exercise the flexibility to include additional provisions to address Local conditions as appropriate. An MOU should be developed with each major utility service provider or group of utility service providers with the goal of maximum utility industry participation.

NOTE: There is a similar Memorandum of Understanding for execution between TxDOT and utility trade associations. This instructional guide is applicable for those MOUs, excluding the portions that pertain to formation of the Steering Committee and the signatory authorities. The ROW Division Director for TxDOT and the Executive Director of the trade association will execute the MOUs with the trade associations.

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MOU-Introduction Section

The introduction section of the MOU is intended to make an explicit statement of the established authorities for the TxDOT –and Utility joint use of public right of way. It is important to understand that TxDOT is legally mandated to accommodate utility facilities on TxDOT right of way by virtue of the following Texas statutes, which establish these rights.

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MOU-The TxDOT-Utility Cooperative Management Process Section

This section of the Utility MOU is intended to introduce “The Process” and exact a commitment from the parties for the investment of resources required to accomplish the desired results.

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MOU-Standards for Installation Section

The statutory authority for utilities to occupy highway right of way is subject to compatibility of their facilities with the safe design, operation and maintenance of the highway facility. The vehicle for accomplishing this TxDOT oversight function is the TxDOT UAR. While the codified policies and procedures of the TxDOT UAR carry the force and effect of law, the flexibility and required procedures for consideration and possible approval of exceptions to policy are included under 43TAC §21.35, Exceptions. The request for an exception to policy will include comprehensive documentation of the circumstances and the rationale, which justifies its need. Exception requests are initiated in the Districts and forwarded with the required justification and District recommendation to the ROW Division for consideration. The need for an exception to policy should be identified and submitted as early as possible in “The Process.”

The TxDOT UAR refers to various industry standards and other legal requirements. Utility installations will conform to these standards when the requirements exceed, or are more restrictive than those of the TxDOT UAR. The following is a representative listing of these industry and legal standards:

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MOU-Construction and Financial Considerations Section

The utilities are responsible for accomplishing the design and adjustment of utility facilities regardless of the construction method selected. The following methods may be utilized as appropriate.

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  • Where the work is performed independently by each utility with its own or contracted forces.
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  • A cooperative joint venture among two or more utilities for the collective performance of the work. One utility compensating another for performing the work or two or more companies retaining a common contractor may accomplish this.
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  • By mutual consent of TxDOT and the utility(ies), utility adjustments may be included in the highway contract. The decision to exercise this option must be made as early as possible in “The Process” and must include consideration of the following:
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    • The utility adjustment design information, itemized estimate, special provisions, and specifications for constructing the utility adjustments will be included in the TxDOT contract documents.
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    • TxDOT will be responsible for preparing, letting, awarding and administering the contract. Specific duties, responsibilities, and authorities concerning the inspection and acceptance of the work must be clearly defined by TxDOT in cooperation with the utility in advance of the contract letting date.
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    • The TxDOT Project Construction Engineer in coordination with the Utility Construction Representative will promptly address change orders or disputes that arise and affect the utility adjustment. The intent is to resolve the construction issues or disputes at the earliest possible time to avoid escalation of costs and delay to the work completion.
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    • When reimbursable utility work is included in the TxDOT contract, it must be authorized by the preparation and approval of a Utility Agreement Assembly. This assembly will be prepared by the appropriate parties.
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    • When wholly or partially ineligible utility work is included in the TxDOT contract, an AFA as part of the Utility Agreement will be required. Ineligible work would include non-reimbursable betterments, utility adjustments without compensable interests or utility adjustments with partial compensable interests. Requests for AFAs should be initiated by the TxDOT Project Design Engineer and the Utility Liaison, and included in the PS&E submission. The AFAs will then be processed in the Design, Finance, and General Services Divisions.

Utilities may be eligible for State cost participation on their facility adjustments. The “eligibility ratio” is the relationship between real property interest held within the proposed highway right of way and the total highway right of way occupied by the utility facility. Determination of this eligibility ratio will be made by Right of Way personnel subject to approval by the ROW Division. An exception to this determination of eligibility exists for the Interstate Highway System on which utility adjustments are normally 100% reimbursable or Toll Projects.

Utilities may elect to upgrade their facilities in conjunction with adjustments for highways. Cost of these facility betterments performed at the option of the utility will be borne by them. Betterments caused directly by the highway project or by the implementation of updated industry standards will be eligible for reimbursement.

The value of all salvage materials on reimbursable adjustments must be credited to TxDOT.

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MOU-Utility Coordination Steering Committee Section

The Utility Coordination Steering Committee is intended to provide executive-level strategic direction and commitment to the TxDOT-Utility Cooperative Management Process by both TxDOT and the local utility industry. The TxDOT District Director of TP&D or a higher level TxDOT individual will chair the Steering Committee. Membership should include similar executive level representatives of the Local major providers of basic utility services (e.g., water, sewer, gas, electric, and telecommunications). The chairperson of the committee will be responsible for including additional TxDOT and utility participation as appropriate.

The Steering Committee will focus on issues of interagency coordination and delegation of the appropriate authority to empower decision-making at the operational level in order to maintain continuous improvement of “The Process.”

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MOU-Conclusions and Endorsements Section

Execution by the District Engineer for TxDOT and by a comparable level executive for the utility is important to maximize the effectiveness of the MOU.

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