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Current Design-Build Practices for Transportation Projects
9. Right of Way/Utilities
The agencies were asked to identify their right-of-way (ROW) acquisition needs for the projects. In some cases (AZ DOT) the agency is required by law to have all right-of-way in hand prior to issuance of a procurement package, or has made a policy decision to obtain all right-of-way in advance of issuance of the RFP or award (FDOT, WSDOT). However, many of the agencies still had some parcels to acquire following award of the design-build contract. Some of those agencies established the ROW boundaries and advised the design-builder when the parcels would be available. Colorado DOT had less than 20% of the ROW prior to the RFP, and about 35% at the proposal date. Some agencies required the design-builder to participate in the ROW acquisition process, providing surveys, property descriptions, title binders, appraisals, etc.
The FHWA's right-of-way policy for design-build projects allows contracting agencies to assign appropriate responsibility for right-of-way acquisition to the design-builder as long as the contracting agency assures compliance with the Uniform Act. See 23 CFR 710.313.
Reference - Right-of-way special provisions: see the NCHRP Project No. 20-7 / Task 172, Recommended AASHTO Design-Build Procurement Guide (or the January 2008 AASHTO Guide for Design-Build Procurement), sample special provision Number 020-ROW-01 Right of Way South Dakota DOT 2000, 021-ROW-02 Right of Way Washington DOT 2000 and 022-ROW-03 Right of Way South Carolina DOT 1999.
FDOT Update (Jan 2003)
FDOT now allows for right-of-way services to be included in design-build contracts. However, they still retain some responsibilities such as approval of right-of-way maps, approval of compensation, legal services, etc.
LADOTD (May 2009)
LADOTD establishes ROW boundaries and acquires ROW, but ROW acquisition by LADOTD may continue post award.
Michigan DOT (May 2009)
Michigan DOT's goal is to acquire the necessary ROW prior to obligating funds on all projects. Michigan DOT is currently developing one design-build project that will not have ROW cleared at the time of obligation or award. Michigan DOT obtained an exception from the FHWA's Michigan Division to proceed on this project.
In Michigan the FHWA may allow a project to proceed without ROW clearance at advertisement. However this is an exception, and should not be viewed as a common practice on any project.
NC DOT (Jan 2003)
NC DOT has acquired the right-of-way for all but one project thus far. On that project, the contractor was required to acquire the right-of-way but was reimbursed by NC DOT. The latter concept eliminated the contractor risk related to cost. Most future projects will include right-of-way by the design-build team.
UT DOT (Jan 2002)
For the I-15 project, UT DOT established a project ROW team outside the normal UT DOT ROW acquisition staff to facilitate acquisition of the over 160 parcels required for the project, and obtained a waiver of FHWA's requirement to certify ROW prior to proceeding with construction. Appraisals and negotiations were initiated prior to approval of environmental documents, with acquisition starting subsequent to receiving approvals of those documents. None of the ROW was acquired before issuing the RFP or awarding the contract. A ROW acquisition schedule was included in the RFP with a commitment by UT DOT as to the availability of the individual parcels (i.e., UT DOT assumed the risk for the availability of parcels). Proposers were given the opportunity to identify their priorities for ROW acquisition. After award, UT DOT and the contractor continued to adjust priorities, work schedules and ROW acquisitions to meet the contractor's needs and UT DOT's ability to provide needed parcels. There were no impacts on the project schedule as a result of ROW acquisitions.
VDOT (April 2009)
VDOT requires the design-builder to provide all acquisition services to include, estimates, appraisals, negotiations, relocation assistance, title examinations, closing procedures and data entry in the Right of Way and Utilities Management System (RUMS) as part of the RFP. In some cases where we are confident the acquisitions will be completed prior to the contract award, VDOT has acquired the right of way. All right of way acquisitions are conducted in accordance with 49 CFR Part 24- Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, the Code of Virginia, 1950, as amended, and the VDOT Right of Way Manual of Instructions.
Utility relocations are traditionally a major issue for transportation projects, and as noted by the initial surveys, are likely to present significant problems for design-build projects. With regard to the Alameda Corridor, ACTA said: "One of the major concerns raised by the contractors proposing on the project included utility relocation requirements (the project involves 20 utility owners and over 500 relocations) and other third party requirements (a significant portion of the project is outside of the two cities that are members of the Authority, crossing the jurisdictions of several other cities). The I-15 project had even more conflicts, with 1,500 utility crossings, 600 potential conflicts/relocations and 40 different utility owners. Both UT DOT and ACTA went to great efforts to reduce the utility risk and to clearly allocate responsibilities for different tasks relating to utility relocations. For both projects, these efforts succeeded in avoiding adverse impacts to the project schedule.
Reference - Utility Relocation special provisions: see the NCHRP Project No. 20-7 / Task 172, Recommended AASHTO Design-Build Procurement Guide (or the January 2008 AASHTO Guide for Design-Build Procurement), sample special provision Number 023-UR-01 Utility Relocation Maine DOT 1997 and 024-UR-02 Utility Relocation North Carolina DOT 2002.
A number of the survey questions concerned utility relocations:
Unidentified Utilities: Since utility risk is often the subject of complicated contract provisions dealing with matters such as payment for unidentified or misidentified utilities, one question concerned the line drawn between facilities that are considered utilities and facilities that are not, and another question asked about steps taken to reduce the risk of unidentified facilities.
The contract provisions for a number of projects (including TCA) specifically provided that "Storm drains, traffic signals, street lights, and electrical systems for roadways are part of the Contractor's scope and are not considered to be utilities." The TCA's documents also distinguish between defined "main or trunkline" utilities (for which additional compensation will be allowed if a facility was not identified or if there were material errors in the survey) and facilities that are the design-builder's responsibility.
Almost all of the agencies indicated that they had conducted utility surveys for inclusion in the RFP. For the I-15 project, as part of the preliminary engineering during the preparation of the RFP, UT DOT identified and mapped existing utilities in great detail through early, close, continuous coordination with all utility companies. WSDOT says "utilities were identified by WSDOT prior to the RFP. The information was shared with the design-build teams. This meant WSDOT had the responsibility for location of utilities."
LADOTD (May 2009)
LADOTD identifies utilities and includes them in its Scope of Services Package. The design-builder is also charged with conducting its own site investigations prior to contract execution.
Master Agreements: The initial survey also asked whether agencies had entered into master utility agreements, another means of mitigating the risks associated with relocations.
LADOTD (May 2009)
LADOTD negotiates utility relocation agreements with the Utility Owners and provides the utility relocation agreement information in theScope of Services Package.
For the I-15 project, UT DOT executed Master Agreements (that included the utilities' design criteria and construction specifications) with all utility owners and the inclusion of the agreements in the RFP (or drafts where agreements were not finalized). Similarly, for the Alameda Corridor, the Authority "addressed the utility and third party concerns by negotiating agreements with utility owners and local agencies, and included comprehensive provisions in the contract documents addressing different situations that were likely to arise. Several of these agreements were finalized post-proposal and were incorporated into the contract by an addendum and supplemental proposal prior to award. A change order would have been issued to the extent that subsequent agreements resulted in a change in the contractor's work."
FDOT stated that "...[a]s a standard practice, we have master utility agreements with all major utility companies."
FDOT Update (Jan 2003): FDOT now offers a project specific design-build agreement that is signed by the FDOT and utility company. The agreement outlines the coordination process, method for reimbursement, etc. The signed agreement is included in the RFP package, which obligates the design-builder and utility company to comply with the provisions of the agreement. The design-builder has third party rights to seek reimbursement against a utility if a claim is warranted and vice-versa.
Work Allocation: It is also possible to reduce risks associated with utility relocations by arranging for the design-builder to perform the relocation work. UT DOT aggressively negotiated with utility owners to allow the design-builder the right to design and construct relocations. Of the over 40 utility owners involved, all but one agreed to have the contractor design and construct relocations that placed the contractor in control of this critical work (and more importantly, all aspects of the project schedule) and eliminated one of the major risk factors from the project -- utility-caused delays.
LADOTD (May 2009)
LADOTD includes some utility relocations in the design-builder's scope of work so that costs for utility relocations are included in the contract. The design-builder may choose to design around existing utility lines, if possible, but will otherwise be responsible for resolving the relocation of any utility conflicts so that there is no loss of service during the contract period.
Payment Responsibility: Another issue mentioned by certain of the initial agencies surveyed was the question of payment responsibility. UT DOT paid for the relocations under the contract, and issues of reimbursement were handled off-line between UT DOT and the utilities.
For the Greenville County program, the design-builder assumed close to full responsibility for interface with utility owners and performance of utility work. The TCA also delegated significant payment responsibility to its contractor.
Force Account Approach: UTA stated that the contract requirement to pay for dry utility work on a force account basis within an allowance was overly burdensome. (This approach was driven by the fact that the scope of the work could not be ascertained prior to contract award.) UTA said that it would prefer to obtain unit prices if the situation arose again.
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