Chapter 3: Acquisition Coordination

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Section 1: TxDOT - The Acquiring Agency

Overview

Local governments (LGs) are responsible for ROW acquisition and utility adjustments, with exception of interstate highways; however, an LG may request that TxDOT assume the ROW acquisition function. TxDOT's role as the acquiring agency is subject to the following conditions:

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the LG offers to make a contribution equal to the applicable percentage of the estimated cost of the ROW;

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the Commission has authorized the project; and

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ROW costs are eligible for State participation reimbursement.

A city ordinance or resolution must be submitted along with the LG's request for TxDOT to assume the acquisition responsibilities.

Typically, LG contribution is 10% unless otherwise stated in the contract agreement. Any change in LG percentage must be approved by the Commission. The LG contribution is based upon current estimates of the cost of the ROW to be acquired. The cost of ROW is defined as the total value of compensation to owners, including utilities, for their property interests. If the agreement is for a specified percentage, additional contributions will be made if the actual costs of ROW exceed the amount estimated. If the amount contributed by the LG is greater than the final actual ROW costs, the excess amount will be refunded to the LG. Specified percentage agreements must be approved by the Executive Director in accordance with 43 TAC Section 15.52 (3)(B). On fixed price agreements no refund will be given or additional funds collected from the LG. Fixed prices agreements are the default form of funding agreement with a LG. Since it is possible that some projects could financially burden an LG if the entire contribution is required with the submittal of the contractual agreement, the LG can make periodic payments. Any agreement with a periodic payment schedule has to be approved by the Executive Director of TxDOT in accordance with 43TAC, Section 15.52(3)(C).

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Contractual Agreements

An agreement must be executed by and between TxDOT and the applicable Metropolitan Planning Organization (MPO) or LG on all projects. This will customarily be executed early on in project development, prior to a project receiving full authority to proceed for ROW acquisition and utility adjustments. The agreement will give details about the project and will state who is responsible for the ROW acquisition and the utility adjustments. If TxDOT is to be the acquiring agent, the fixed price participation amount required by the LG and the method of payment by the LG, either in full with the execution of the agreement or in periodic payments as approved by the Executive Director, will be detailed in the agreement.

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Amendments to Contractual Agreements

An amendment or amendments to the agreement may be necessary if certain acquisition responsibilities or participation requirements change during the course of an ongoing project. If the agreement originally called for the LG to be the acquiring agency and it desires to transfer all or a portion of the remaining acquisition responsibilities to TxDOT, an amendment to the agreement should be used. The amendment should describe by parcel number any outstanding ROW that is being transferred to TxDOT for acquisition. It should also identify any utility adjustment or other outstanding obligation that is to be transferred to TxDOT. If only portions of the acquisition responsibilities are being transferred to TxDOT, the amendment should also set forth the LG's remaining acquisition responsibilities. The amendment would also be used if the participation ratio changes, for example pursuant to a Minute Order designated an LG as an economically disadvantaged county.

In fixed price agreements when the State is the acquiring agency the LG's fixed price contribution set forth in the agreement is not subject to adjustment unless: (1) site conditions change (2) work required by the LG is ineligible for federal participation or (3) the adjustment is mutually agreed on by the State and the LG.

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Submission of Contractual Agreements

The Right of Way field staff submits two signed originals or one electronic copy of the standard form to the ROW Division’s Contracts and Finance Section, Project Financial Management Branch for review. The transmittal memo must state the method of funding utilized by the LG. If the LG desires to pay the required amount in periodic payments, the memo must also set forth the requirements for periodic payment approval set forth in 43TAC, Section 15.52, Subsection 6(B). Accompanying this memo should also be

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a copy of the LG's check,

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a copy of the deposit transmittal evidencing deposit of funds in the appropriate rapid deposit account,

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a copy of the city ordinance or resolution, and

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special Approval Transmittal Form (per 43TAC Section 15.52) from Contract Services Division, executed by the Executive Director of TxDOT, for periodic payments, if applicable.

If there are any changes proposed to the agreement, an unsigned copy of the proposed agreement must be transmitted by the Right of Way field staff to the Project Financial Management Branch. Also, any proposed amendment to an existing agreement must be submitted in the same manner. The Project Financial Management Branch will review these submissions and inform the Right of Way field staff in writing of approval or disapproval of the proposed changes or of the proposed amendment. In this situation, the LG must not sign the agreement or amendment prior to approval by ROW Division’s Contracts and Finance Section Director.

Once an approved agreement (executed by the LG) and other requirements have been submitted to the Project Financial Management Branch, the approval by TxDOT of these documents will be evidenced by execution by ROW Division’s Contracts and Finance Section Director. One original will be retained for the ROW Division for their records and the remaining original will be returned to the Right of Way field staff for delivery to the LG. Right of Way field staff should retain a copy for the right of way project file.