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Section 6: Utility Joint Use and Occupancy

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Acquisition

It is TxDOT’s preference that all adjustments involving fee simple interests owned by the utility will be acquired, less oil, gas, and Sulphur, as part of the highway right of way acquisition per 43TAC Section 21.36, but allowing utilities to retain an easement.

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Authority

43TAC Section 21.52 specifies that use and occupancy agreement forms are required for utilities installed, adjusted, relocated, or retained within highway right of way.

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Utility Joint Use and Occupancy

Joint use occurs when the State determines that:

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  • the utility places its facilities on, over, across, or under the highway right of way, and
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  • it is necessary to occupy the same area of land, except fee, for highway purposes that is already occupied by a utility holding a prior interest in the land, and the State does not wish to purchase a prior interest from the utility.

Joint use is established by executing an agreement that sets forth the rights and obligations of both parties for occupying, maintaining, accessing, and notifying changes by either party in their facilities. In order for this to occur, TxDOT must:

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  • have evidence that the utility has a compensable interest in the land to be incorporated into the right of way limits of the transportation project. As proof of compensable interests, submit affidavits, ROW-U-Affidavit (for Utility Owner), ROW-U-Affidavit (for Disinterested Party), or ROW-U-Affidavit (for Property Owner), as applicable, along with the supporting documentation, to TxDOT.
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  • determine that (1) utility facility meets UAR requirements and may be allowed to remain “as is,” or (2) may be adjusted to comply with the UAR and to accommodate construction within the limits of its interests and be allowed to remain within the highway right of way with no replacement right of way charges. The determination will be based on the State’s ability to construct and maintain the highway if the utility facilities are allowed to remain.
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  • assess the utility’s position on retaining its interest rights, determining if the utility will relocate within, or outside of, the right of way for any future adjustments or relocation of its facility, and considering:
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    • the utility company moving off current property interest while remaining within highway right of way, and
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    • no replacement right of way charges.

Each utility having facilities that are to remain or be located within the highway right of way will submit an executed Utility Joint Use Agreement. To ensure that the utility’s facility will comply with the UAR, a set of plans or location sketches must be submitted with the agreement.

The agreement requires the following information:

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  • Highlighted the joint use area.
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  • The appropriate information regarding the project designation and location must be completed at the top of the form.
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  • The name of the utility.
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  • Plans and/or location sketches detailing the design or “as built” plan of the utilities.
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  • A signature by an officer of the company or other company representative with designated signature authority for a legally binding agreement.

The agreement must be executed by the TxDOT District Engineer, or designee.

TxDOT must execute this agreement even if an LPA is acquiring right of way for a State transportation project.

In those instances where the utility’s facilities are relocated off the highway right of way and eligible for reimbursement, the utility may quitclaim or otherwise release any property rights it holds within the right of way. If the utility refuses to quitclaim, TxDOT will not participate in the cost of replacement right of way and may purchase the utility’s property interest which is located within the state right of way.

When there is an existing easement within the existing and proposed ROW, TxDOT may either Joint Use the existing easement or may quitclaim the area if there is a need for a replacement easement. However, TxDOT will not participate in a combined scenario if there is not a need for a replacement easement.

The appropriate use and occupancy form to be used is determined by whether or not a property interest exists by the utility. If a property interest exists, use form ROW-U-JUA Utility Joint Use Agreement. If no property interest exists, use Form 1082 Utility Installation Request. If a utility relocates off its existing property interest within TxDOT right of way, Form 1082 Utility Installation Request should be executed for the new facility. If the old or existing easement is not relinquished by quitclaim or acquisition, form ROW-U-JUA Utility Joint Use Agreement should be executed to document the existence of the easement on TxDOT right of way.

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Utility Accommodation / Adjustment Checklist

A form ROW-U-AGMNTCheck Utility Accommodation / Adjustment Checklist is available to ensure that all aspects of a Utility Joint Use Agreement have been addressed. However, if a Utility Joint Use Agreement accompanies the Standard Utility Agreement, a separate checklist is not needed.

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Revisions to Forms

TxDOT strongly discourages alterations or revisions to its forms.

Any revisions or alterations to a Utility Joint Use Agreement form must be approved by FHWA, General Council Division, and the ROW Division. Any revisions or alterations to a Utility Joint Use Agreement form after it has been executed by either party shall nullify the agreement, in which case a new form must be executed by all parties.

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