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Section 2: Right of Way Utility Adjustment Sub-process - “The Sub-process”

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Flowcharts

Flowcharts of the State Utility Adjustment Procedure ( SUP), LPA Utility Adjustment Procedure ( LUP), and the Federal ( FUP) Utility Adjustment Procedure are available for viewing and/or downloading in PDF format.

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Released - Limited for Preliminary Utility Activities - Right of Way Sub-process Activity I

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  1. TxDOT Right of Way Representative
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  2. TxDOT ROW Program Office
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  1. Identify need and requirements for limited release.
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  2. Document justification for and approval of limited release.
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  3. Approval of Limited Release.
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  1. To properly coordinate utility activities within advance project development, a Release - Limited for Preliminary Utility Activities must be obtained. The limited right of way release provides the authority for TxDOT to incur costs for preliminary utility activities, including design and procurement of materials, before the normal right of way release. Full Authority to Proceed is contingent upon completion of environmental studies, route studies and receipt of the right of way map by the TxDOT ROW Program Office. These prerequisites may not always be completed at this point. Types of utility activities that will typically be the subject of this limited release include location determination, potential conflict identification, and preliminary cost estimate preparation.
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  2. Documentation is necessary to establish TxDOT internal controls for audit purposes. The limited right of way release must originate with a written request prepared by the District with approval granted by the TxDOT ROW Program Office.
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  3. Costs incurred for utility activities under the limited right of way release will not be subject to Local Public Agency (LPA) participation. If Federal cost participation is requested on the project, the early utility activities must be included as components of the environmental investigations.
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Field Verification - Right of Way Sub-process Activity II

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  1. TxDOT Project Design Engineer
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  2. TxDOT Utility Liaison
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  3. TxDOT ROW Division
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  4. Utility Design Representative
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  5. SUE Provider (If required)
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  1. Identify ownership of utility facilities.
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  2. Determine accurate horizontal and vertical location of utility facilities.
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  3. Utility locations identified in terms of TxDOT control datum.
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  1. The purpose of the Field Verification is to determine the type, location, and ownership of utility facilities. Field Verification activities will require securing a Release - Limited for Preliminary Utility Activities to incur the associated costs if necessary. If Federal cost participation is involved in the project, reimbursable field verification activities will be considered as incidental to environmental studies for preliminary engineering up to, and including, the determination of horizontal location without excavation.
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  2. Field Verification services may be provided by a Subsurface Utility Engineering (SUE) provider, by individual or groups of utilities, or by TxDOT personnel. In reference to the Right of Way Sub-process, the involvement by right of way personnel will be to provide payment where applicable, and to assist in coordination activities incidental to payment.
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Federal Project Authorization and Agreement (FPAA)- Right of Way Sub-process Activity III (a)

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  1. TxDOT Right of Way Representative
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  2. TxDOT Division
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  3. Federal Highway Administration (FHWA)
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  1. Secure right of way project release on Federal-aid right of way projects.
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  2. Approval of federal cost participation.
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  1. The Federal Project Authorization and Agreement (FPAA) documents the approval for Federal cost participation in a right of way project. It must be obtained as a prerequisite for the TxDOT ROW Program Office.
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  2. Necessary information for the FPAA will include the utility name(s), locations of existing facilities by station number and estimated cost of adjustment(s) by utility.
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  3. The FPAA may be requested concurrently with the Alternate Procedure Approval (Sub-process Activity V).
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TxDOT-LPA Right of Way Contracts - Right of Way Sub-process Activity III (b)

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  1. Local Public Agency (LPA)
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  2. TxDOT Right of Way Representative
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  3. TxDOT ROW Division
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  1. To establish cost participation and work responsibilities between TxDOT and LPAs.
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  2. Satisfy prerequisites to secure right of way project release on Non-Federal-aid projects.
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  1. It is necessary to determine the authorization for the proposed adjustment of utility facilities to decide how to proceed in obtaining approval of Utility Adjustment Agreements. It is also necessary to confirm that the LPAs will transfer responsibility to TxDOT for acquisition of right of way and utility adjustments, and/or if you have contractual documentation of LPA participation in eligible costs before you start the process of preparing an agreement assembly.
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  2. When there is Federal-Aid in right of way, inclusive of utility costs, the FHWA Letter of Authorization (see Federal Project Authorization and Agreement (FPAA)- Right of Way Sub-process Activity III (a) ) is FHWA’s authorization for TxDOT to assume total oversight of the utility adjustment process.
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  3. When there is no federal cost participation in right of way, inclusive of utility adjustments, contractual agreements with LPA participants are required. The execution of contractual agreements establishes responsibilities for acquisition of right of way, adjustment of utilities and cost sharing between the LPA(s) and TxDOT. The type of contract to be used is determined by whether the LPA desires to administer right of way activities and payments or defer those responsibilities to TxDOT. There are two general types of contractual agreements as follows:
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    • On non-Federal-Aid right of way projects when the LPA administers the payments to utility entities, it is also necessary to execute an Agreement for Right of Way Procurement. This agreement allows the LPA to assume oversight of the utility adjustment payment process. In return, TxDOT will reimburse the LPA the agreed percentage of actual eligible expenditures.
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    • On non-Federal-Aid right of way projects where TxDOT is to administer the payments to utility entities, it is necessary to execute an Agreement to Contribute Funds, with the LPA. This agreement is the LPA’s assignment to TxDOT of the responsibility to oversee the utility adjustment and payment process. In return, the LPA will escrow to TxDOT the agreed percentage of cost participation based on the right of way project estimate and amendments thereto.

It is the responsibility of the TxDOT Right of Way Representative, in cooperation with the LPA, to determine and prepare the appropriate agreement for execution. The execution of this agreement by the LPA and TxDOT is a prerequisite for establishment and release of a right of way project. The type of contract selected, as it relates to utility adjustments will dictate the path to follow in Right of Way Sub-process Activity VI (see LPA Agreement to Contribute Funds - Right of Way Sub-process Activity VI. )

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Right of Way Release - Right of Way Sub-process Activity IV

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  1. TxDOT Right of Way Representative
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  2. TxDOT ROW Division
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  3. TxDOT Finance Division
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  1. Authorize right of way acquisition and utility adjustment activities.
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  2. Notice to TxDOT Finance Division for right of way funds authorization.
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  1. The Right of Way Release is the authorization by the TxDOT ROW Program Office for the District to begin right of way project activities. The Right of Way Release is a prerequisite to subsequent Right of Way Sub-process activities required to authorize reimbursable utility adjustments. It also acts as a notice to the TxDOT Finance Division to issue fund authorization. The request for Right of Way Release will be initiated by District Right of Way and must be accompanied by a statement that the District is prepared to start the work. The release is conditioned upon completion of the following requirements:
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Alternate Procedure Approval from FHWA - Right of Way Sub-process Activity V

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  1. TxDOT Utility Liaison
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  2. TxDOT ROW Program Office
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  3. Federal Highway Administration (FHWA)
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  1. Authorize TxDOT to act in the relative position of the FHWA.
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  2. Identify affected utilities, locations, and estimated costs.
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  1. Where there is Federal-Aid in right of way, inclusive of utility costs, the Alternate Procedure Approval is FHWA authorization for TxDOT to assume total oversight of the utility adjustment process.
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  2. Necessary information for the Alternate Procedure Approval will include the utility name(s), locations of existing facilities by station number and estimated cost of adjustment(s) by utility.
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  3. Alternate Procedure Approval may be requested concurrently with the FHWA Letter of Authorization (Sub-process Activity III (a) (see Federal Project Authorization and Agreement (FPAA)- Right of Way Sub-process Activity III (a) .)
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LPA Agreement to Contribute Funds - Right of Way Sub-process Activity VI

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  1. Local Public Agency (LPA)
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  2. TxDOT Right of Way Representative
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  3. TxDOT ROW Program Office
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  1. Confirm LPA’s transfer of responsibility to TxDOT for acquisition of right of way and Utility Adjustments.
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  2. Confirm contractual documentation of LPA participation in eligible costs.
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  1. On non-Federal-Aid right of way projects when TxDOT is to administer the payments to utilities, it is necessary to execute an Agreement to Contribute Funds, with the LPA. This agreement is the LPA’s assignment to TxDOT of the responsibility to oversee the utility adjustment and payment process. In return, the LPA will escrow to TxDOT the agreed percentage of cost participation based on the right of way project estimate and amendments thereto. This agreement would have been executed under Right of Way Sub-process Activity IIIb, TxDOT-LPA Right of Way Contracts (see TxDOT-LPA Right of Way Contracts - Right of Way Sub-process Activity III (b) ).
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Request for Determination of Eligibility - Right of Way Sub-process Activity VII

(Also, refer to Right of Way Sub-process Activity XII)

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  1. Local Public Agency (LPA)
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  2. TxDOT Utility Liaison
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  3. TxDOT ROW Program Office
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  1. Validation of reimbursement eligibility and determination of ratio.
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  2. Minimize LPA risk of authorizing utility work deemed non-reimbursable by TxDOT.
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  1. At their option, the LPA may request that TxDOT provide an advance determination of reimbursement eligibility. Before the LPA makes commitments to utilities, TxDOT will confirm eligibility and establish the ratio that will be used for reimbursement to the LPA.
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  2. The District will review the preliminary plans and estimates regarding the scope and economics of the proposed adjustment, extent of eligibility in respect to compensable interests held by the utility, eligibility of items reflected in the estimate, UAR, betterment, and other matters in order to ensure that a definite understanding is reached concerning the proposed adjustment.
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  3. If the LPA chooses not to request this early determination of eligibility, then the amount of reimbursement to the LPA will not be determined until the work is completed and the LPA has been billed by the utility. Failure to exercise this option presents an element of risk, in that all costs incurred may not be included in the final determination of the upper limit of TxDOT cost participation and therefore would not be reimbursable. For this reason, TxDOT encourages the LPA to avail itself of the option to request a determination of eligibility.
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  4. This request must be submitted before work is authorized by the LPA.
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District Approves Utility Consultant Contract - Right of Way Sub-process Activity VIII

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  1. Utility Representative
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  2. Utility Consultant
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  3. TxDOT Utility Liaison
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  1. The review and approval of the utility consultant contract is a TxDOT District responsibility. This should be a comprehensive review to include:
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  2. Typically, there will be no further review of this contract. It is imperative, therefore, that the review complies with the provisions stated in this manual.
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  3. Consideration should be given to continuing contracts that the utility may have with a consultant.
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  4. Typically, the Utility Consultant Contract Approval will take the form of a letter to the utility from the TxDOT Utility Section.
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Prepare Utility Adjustment Assembly for Approval - Right of Way Sub-process Activity IX

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  1. Utility Representative
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  2. TxDOT Utility Liaison
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  1. To compile a complete assembly of documentation for TxDOT approval of reimbursable utility adjustments.
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  2. To identify and establish compensable interests, reimbursement eligibility, betterment, UAR compliance and scope of utility work.
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  3. Secure documentation of the future relationship for joint use of TxDOT right of way by utilities.
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  1. The Standard Utility Agreement Assembly will be compiled by means of cooperative effort exerted by the District Utility liaison and the utility representatives. The goals of a Utility Agreement Assembly are as follows:
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    • To compile a complete assembly of documentation for TxDOT approval of reimbursable utility adjustments. Payments for eligible adjustments cannot be made before approval by TxDOT of a completed and fully executed Utility Agreement.
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    • If an adjustment will not be eligible for cost participation by TxDOT, effort should be made to assist the utility through information concerning grades, scope of project, help with UAR compliance and funding alternatives such as the State Infrastructure Bank.

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    • To identify and establish property interests, reimbursement eligibility, betterment, UAR compliance, and scope of utility work. The agreement assembly must be in sufficient detail to allow reviewers to easily understand whether improvements to existing facilities are the result of the utility’s desire to improve their facilities or if obsolescence of material or the design of the proposed project caused them.
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    • Secure documentation of the future relationship for joint use of TxDOT right of way by utility entities. The property interests defined to establish eligibility must be reviewed to determine if the utility can be allowed to continue to occupy their existing location, if their rights can be shifted within the limits of the project or if it will be necessary to quitclaim their interests to the State. TxDOT’s Utility Joint Use Agreement form establishes the relationship between the utility entity and TxDOT where they will continue to occupy common right of way after the adjustment.
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  2. The standard utility adjustment assembly consists of:
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  3. TxDOT’s promulgated joint-use form establishes the relationship between the utility and TxDOT where they continue to occupy common right of way after the adjustment. These forms must be completed according to instructions.
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  4. Eligibility ratios, UAR compliance, and scope of work will be adequately defined by the detailed plans submitted as part of the Utility Agreement Assembly.
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  5. Betterment and compensable interests will be determined and supported by additional documentation as appropriate.
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  6. The following is a current listing of forms used in conjunction with the Utility Agreement Assembly:
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Perform Utility Adjustment - Right of Way Sub-process Activity XI

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  1. Utility Construction Representative
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  2. Utility Construction Inspector
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  3. TxDOT Construction Contractor
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  4. TxDOT Project Construction Engineer
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  5. TxDOT Utility Liaison
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  1. Accomplish the adjustment to utility facilities in an efficient and timely manner.
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  2. Coordinate the adjustment of utility facilities with the development, scheduling and performance of the TxDOT construction contract.
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  • Activity Narrative
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    • With particular emphasis placed on the proper documentation of material, labor, and equipment incorporated in the work, it is important that both TxDOT and the utility provide for proper inspection. This will also ensure compliance with the UAR. The TxDOT Utility Liaison will be responsible for assuring that adequate communication and coordination occurs between the appropriate participants to accomplish the adjustment and documentation in a competent manner.
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Determination of Upper Limit - Right of Way Sub-process Activity XII

(Also, refer to Right of Way Sub-process Activity VII)

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  1. Local Public Agency (LPA)
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  2. TxDOT Right of Way Representative
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  3. TxDOT ROW Program Office
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  1. Validation of reimbursement eligibility and determination of ratio.
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  2. Determine the upper monetary limit of TxDOT cost participation.
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  3. Minimize LPA risk of payment for utility work deemed non-reimbursable by the State.
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  1. When utility adjustments are administered by the LPA under the terms of the Contractual Agreement for Right of Way Procurement (Local Government), a Determination of Upper Limit must be made to establish the extent of TxDOT cost participation before payment.
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  2. The LPA initiates the request for TxDOT to provide a determination of the upper monetary limit. Before the LPA makes payment to the utilities, TxDOT will confirm reimbursement eligibility, establish the eligibility ratio, and set the upper monetary limit that will be used for reimbursement of utility costs paid by the LPA.
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  3. The District will review the plans and utility billing with reference to the scope, necessity and economy of the utility adjustment, compensable interests held by the utility, eligibility of items reflected in the billing, UAR, betterment, and other matters that may be necessary in order to ensure that a definite understanding is reached concerning the determined limit of TxDOT cost participation.
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  4. If the LPA previously opted to use a Request for Determination of Eligibility (Right of Way Sub-process Activity VII), then many of these prepayment requirements would have already been completed during that determination.
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  5. This request is submitted after adjustment work is complete.
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Utility Payment Process - Right of Way Sub-process Activity XIII

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  1. LPA
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  2. Utility Representative
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  3. TxDOT Utility Liaison
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  4. TxDOT Utility Portfolio Section Audit
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  5. TxDOT ROW Program Office
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  6. TxDOT Finance Division
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  7. State Comptroller
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  1. Reimbursement of eligible utility adjustment costs.
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  2. Minimize citations of ineligible costs.
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  1. TxDOT utility cost participation is founded in the concept of just compensation being provided in return for the acquisition of real property interests. Payment by TxDOT for eligible utility adjustment costs will be made to the utility except when reimbursement is made to the LPA under the terms of the Contractual Agreement for Right of Way Procurement (Local Government). When payment is requested by the LPA, certification and appropriate documentation is required to indicate that they have made the appropriate reimbursement to the utility.
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  2. Utility billings should be prepared and submitted in a format that is compatible with the approved estimate and in sufficient detail for analysis and documentation. The utility billing should follow the order of items in the estimate as closely as possible. The totals for labor, overhead, construction cost, travel, transportation, equipment, materials, supplies or other services will be shown in such a manner regarding permit comparison with the approved estimate. The billing will set out the approved eligibility ratio, appropriate credits and the correct Personal Identification Number (PIN), including the mail code for payment delivery.
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  3. Payments are made commensurate with work performed. A variety of payment methods are available which include monthly partials, pre-approved lump sum or a single final billing upon completion of work. Partial payments may be made as frequently as each month, in an amount not to exceed 90% of the approved estimated cost of work completed to date. Lump sum will be one payment of the amount stated in the approved utility adjustment assembly and is not subject to audit. Payment is most frequently based on a single final billing submitted upon completion of the utility work. This payment is subject to 10% retention pending completion of a TxDOT audit. All payment requests shall be accompanied by supporting documentation.
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  4. Final billing will not be processed until compensable interest issues are resolved and documented through the use of Utility Joint Use Agreement, Quitclaim Deed, Release of Easement or Subordination of Mineral Lease as applicable.
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  5. The utility will provide a final bill within one year following completion of the utility work, otherwise previous payments may be considered final.
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  6. The following is a current listing of the forms used in conjunction with the Utility Payment Process:
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