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Section 8: Local Utility Procedure

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General

Under the Local Utility Procedure (LUP), the LPA may acquire right of way and adjust utilities with their own forces and to some extent under their own rules. The LPA must be aware that some qualifications and requirements must be met if the right of way is to be placed on the State’s system of roadways, be maintained by the State, has State or Federal funding involved, and if utility adjustments are involved. These requirements are as listed in the remainder of this section. A flowchart in PDF format, showing steps of this procedure, is available.

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  • There is a contractual agreement with the LPA designating the responsibilities of each party.
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  • The LPA is responsible for negotiating, communicating, and coordinating utility adjustments.
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  • Eligibility is based on compensable interests held by the utility.
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  • TxDOT cost participation is based on totally or partially eligible adjustments.
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  • The LPA is responsible for utility payments.
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  • TxDOT reimbursement to the LPA for utility adjustments is in accordance with the terms of the contractual agreement between TxDOT and LPA.
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  • The LPA maintains local participation and control.
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Acquisition of Replacement Right of Way

When state or Federal funds are involved in the acquisition of replacement right of way:

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  • the LPA must follow the requirements of the Uniform Relocation Act of 1970 and the Real Property Acquisition Policies Act of 1970, and
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  • the LPA will have to certify that the above acts have been complied with.
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  • A written evaluation for the costs should be made by utility and approved by District prior to negotiation for acquisition of right of way replacement.
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Utility Accommodation

The LPA must follow the State’s UAR and policies dealing with utilities; or

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Participation in Costs of Adjustments

The LPA must furnish the State with an electronic copy of proposed adjustment assembly to determine the upper limit of participation by the State in costs of the proposed adjustments. Cost participation will be limited to 90% of eligible costs.

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Eligibility of Utility Adjustments

The LPA must, either by requested review before, or by documentation at the time of billing, prove the eligibility of the utility work by demonstrating the utility’s property rights or compensable rights. A review by the District, before expenditures, is recommended and may be accomplished by a submission in writing, with accompanying documentation, requesting the review.

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Utility Agreements

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  • The use of a written utility agreement contract is not required between the LPA and the utility, although the use of such a contract is encouraged when payments are to be based on an actual cost basis.
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  • The use of a written utility agreement contract, assuring compliance with the FHWA-approved UAR, is required when Federal-aid funds are involved.

The following two procedures are available to the LPA for determining eligibility of adjustments for TxDOT cost participation. The LPA may use either procedure.

Determination of Eligibility is optional, while Determination of Upper Limits is mandatory.

Determination of Eligibility The LPA may request that TxDOT assist in the determination of eligibility. When requesting Determination of Eligibility from TxDOT before making commitments to the utility on an actual cost adjustment, the LPA must submit the following documents to the District, which forwards their recommendation to the ROW Division before authorization of the adjustment:

The ROW Division will review the preliminary plans and estimates of the proposed adjustment along with the compensable interests held by the utility. The eligibility of items reflected in the estimate, betterment, expired service life credit, and other matters will be reviewed to ensure that there is a clear understanding of the proposed adjustment. If the preliminary submission is found satisfactory by the ROW Division, the District will be notified that TxDOT reimbursement will be based on the required percentage contained in the contractual agreement between the State and LPA of the eligible items of actual cost, as appearing in the detailed final billing prepared by the utility, or as paid by the LPA, whichever is the lesser amount. The utility must keep accurate and detailed cost records of the adjustment, since all cost records and accounts are subject to audit by TxDOT for three years after final payment.

Performing the adjustment without obtaining TxDOT Determination of Eligibility incurs the risk that the utility and/or LPA may expend funds that may not be eligible for TxDOT cost participation.

Determination of Upper Limits of State Cost Participation The LPA may authorize a utility adjustment before receipt of the TxDOT's investigation of eligibility for cost participation. Under this procedure, TxDOT determination of eligibility is delayed until the reimbursement stage.

The LPA must submit the following documents to the District when requesting reimbursements:

The billing submitted by the utility under this procedure is checked in the same manner as a preliminary estimate and a final billing. Therefore, this procedure is a combination estimate and billing.

Mandatory Procedures Regardless of which of the above procedures is used, the following will apply:

Utility cost estimates must be sufficiently itemized to make a determination of eligibility. This is particularly true for adjustment of facilities partially located on highway right of way, and utility-owned right of way whereby an eligibility percentage is applied to the cost of the adjustment. When an eligibility percentage is necessary, all applicable betterment, accrued depreciation, and salvage credit must be deducted from the estimated cost before applying the eligibility percentage.

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