FHWA/MoDOT Partnering Agreements

RIGHT OF WAY AND REALTY

September 2014

I. Roles and Responsibilities of MoDOT

MoDOT’s Role - Ensure the Right of Way (ROW) Program performs in accordance with state and federal laws and regulations while implementing MoDOT’s Strategic Plan and related Business Plan. For our program area, the following tasks are considered the most important and we will work with FHWA as true partners to ensure success:

• Deliver projects on the STIP within the time frames outlined in the STIP and in compliance with federal laws and regulations, including, but not limited to the Uniform Act and corresponding regulations.
• Disposal of excess property in compliance with 23 CFR §710.405(d)(1).
• Effective control of outdoor advertising (ODA) in compliance with the Highway Beautification Act, federal regulations, the federal/state agreement and Missouri state laws and administrative rules.
• Provide FHWA with project priorities.
• Provide accurate, complete submissions of clearance certifications, and other documents submitted to FHWA.
• Involve FHWA in changes, modifications, additions, and creation of state legislation and/or administrative rules relating to ROW and ODA/Junkyard.
• Provide consistent communication and direction to district ROW staff and contractors regarding changes to federal and state regulation.
• MoDOT ROW staff and FHWA Division Realty Specialist will work closely together to add the most value to individual projects and overall program.
• Provide changes to ROW and ODA/Junkyard policies to FHWA prior to implementation. Changes to ROW and ODA/Junkyard policies require FHWA approval.
• Offer invitation to meetings to FHWA, as needed.
• Confer with FHWA when issues, concerns and questions arise in the ROW and ODA/Junkyard programs areas.
• Provide consistent stewardship and oversight to the Local Public Agencies. Also provide adequate inspection of project files and keep the ROW chapter of the LPA Manual up to date.
• Participate in reviews, etc., as needed.

II. Roles and Responsibilities of FHWA

FHWA’s Role - Ensure the MoDOT Right of Way (ROW) Program performs in accordance with state and federal laws and regulations while implementing FHWA’s Performance Plan and required stewardship and oversight. For our program area, the following tasks are considered the most important and we will work with MoDOTas truepartners to ensure success:

• Provide clear, concise, factual based answers and/or claims involving noncompliance.
• Seek MoDOT’s opinion on changes to the CFR sections relating to ROW and ODA/Junkyard.
• Provide timely review and approval of clearance certifications, and other requests for review, approval, comment, and/or concurrence.
• Ensure Central Office (CO)-ROW is involved in all ROW communications with MoDOT, as CO-ROW is the liaison between FHWA and MoDOT in ROW and ODA/Junkyard matters.
• Provide detailed information on federal position statements and policy changes. Changes that affect MoDOT’s operating procedures/policies will be discussed through a meeting of appropriate staff.
• Provide detailed information upon best practices of other state departments of transportation.
• MoDOT ROW staff and FHWA Division Realty Specialist will work closely together to add the most value to individual projects and overall program.
• FHWA Performance Plan will be developed and shared with MoDOT in order to complement MoDOT’s Tracker and Direction and to ensure success for MoDOT and FHWA.
• Provide federal oversight of the ROW and ODA/Junkyard programs areas through program reviews, process reviews, spot checks, and other practiced methods.

PROJECT ACTIVITIES		AGENCY RESPONSIBLE
Approval Action	Reference Document	Interstate	Other NHS	Non-NHS
ROW Acquisition Authorization	23 CFR 710.307	FHWA*	FHWA*	FHWA*
ROW Conditional Clearance (see Appendix A)	23 CFR 635.309	FHWA**	FHWA**	FHWA**
Hardship/Protective Purchase	23 CFR 710.307 23 CFR 710.503 23 CFR 710.509 23 USC 108	FHWA	FHWA*	FHWA*
Credits (including Early Acquisitions, Donations, or other contributions)	23 CFR 710.501 23 CFR 710.505 23 CFR 710.507	FHWA	FHWA	FHWA
Waiver for Comparable Replacement Dwelling Requirement	49 CFR 24.204(b)	FHWA	FHWA	FHWA
Federal Land Transfers	23 CFR 710.601 23 USC 107(d) 23 USC 317	FHWA	FHWA	FHWA
Direct Federal Acquisition	23 CFR 710.603	FHWA	FHWA	FHWA
Relinquishments (or CRSR)	23 CFR 620 Subpart B 23 CFR 710.401 23 CFR 710.403	FHWA	MoDOT	MoDOT
Functional Replacement	23 CFR 710.509	FHWA	FHWA	FHWA
Disposal of ROW	23 CFR 710.403 23 CFR 710.409	FHWA	MoDOT	MoDOT
Disposal at Less Than Fair Market Value (see Appendix B)	23 CFR 710.403 23 CFR 710.409 23 USC 156	FHWA	MoDOT	MoDOT
Disposal and/or Changes in Access Control	23 CFR 620 Subpart B 23 CFR 710.403 23 USC 111	FHWA	MoDOT	MoDOT
Airspace Agreements	23 CFR 710.403 23 CFR 710.405 23 USC 111	FHWA	MoDOT	MoDOT
Lease/License of ROW Real Property	23 CFR 710.407	FHWA	MoDOT	MoDOT

*The Division Office approves if Federal funds utilized.

**Only on Projects of Division Interest (PoDI).

PROGRAM ACTIVITIES		AGENCY RESPONSIBLE
Approval Action	Reference Document	Approve	Remarks
MoDOT’s ROW Manual and Revisions	23 CFR 710.201(c) 49 CFR 1.48(d)(11)	FHWA	Review and Approval by January 1, 2001 and every 5 years thereafter; Revisions reviewed as necessary.
ROW Statistical Report	49 CFR 24 Appendix B	FHWA	Report due to FHWA HQ by November 15th annually.
ROW Partnering Agreement	23 CFR 710.201(i)	FHWA & MoDOT	Every year or as necessary.
Risk Assessment	FHWA Risk Assessment and Performance Plan; MoDOT Tracker and Direction	N/A	FHWA staff will work with MoDOT staff on the development of the FHWA Risk Assessment and Performance Plan to ensure success for FHWA and MoDOT.
MoDOT’s Outdoor Advertising Control (OAC) policy and operating procedures for providing effective control	23 CFR 750.304 23 CFR 750.705 49 CFR 1.48 (c)(11) 23 USC 131	FHWA	Review as necessary.
Authorization to proceed with acquisitions on federally funded sign removal projects (nonconforming)	23 CFR 750.307	FHWA
Requests to Exempt signs from removal in defined areas	23 CFR 750.503	FHWA
MoDOT’s Junkyard policy and operating procedures for providing effective control	23 CFR 751.9 23 USC 136	FHWA
Authorization to proceed with a junkyard control project	23 CFR 751.25	FHWA

III. Ground Rules

We agree to concentrate efforts in improving our work by following these ground rules:

• We will respect the roles and responsibilities of FHWA and MoDOT.
• We will strive to achieve mutual goals and strategic initiatives.
• Both parties recognize that there will be circumstances where a "waiver" from the completeness or timeliness criteria will be proposed. Waivers shall be well documented and agreed upon by both parties.
• We will participate in meetings as needed to discuss items of mutual interest.
• We will revisit and revise this agreement every year and make revisions as necessary.

IV. Conflict Resolution

In case of conflict, we will resolve it at the lowest level by the FHWA Division Realty Specialist working with MoDOT ROW Director. If agreement cannot be reached after fifteen (15) working days we agree to elevate the issue in the following manner:

• Elevate the discussion to the MoDOT’s State Design Engineer and FHWA Program Development Team Leader.
• Elevate the discussion to MoDOT’s Assistant Chief Engineer and FHWA Assistant Division Administrator.
• We will make every effort to solve the conflict at our level, but after no more than ten (10) working days after hearing from the parties involved, we will present our cases both verbally and in writing to MoDOT’s Chief Engineer and the FHWA Division Administrator.
• We will abide by their decision and will share that decision with staff.

V. Performance Evaluation

• Results of process reviews in the ROW and ODA/Junkyard programs areas.
• MoDOT’s goal is to achieve 95% acquisition rate by negotiation (per MoDOT’s Division Tracker measure).
• MoDOT’s goal is to achieve at least 4 (of 5) rating by property owners who believe MoDOT treated them fairly during right of way negotiations (per MoDOT’s Tracker measure).
• MoDOT’s goal is to achieve 0% deviation in programmed ROW costs as compared to actual ROW costs (per MoDOT’s Division Tracker measure).

VI. Communicating with Management

We will keep management informed of our activities and how our partnering is working by:

• Communicate important or controversial issues to management immediately as they arise. Use the no surprise philosophy.
• We will provide management with updates as needed.

APPENDIX A

Programmatic Agreement for Right of Way Certification Between Missouri Department of Transportation and Missouri Division, Federal Highway Administration

In order to streamline the project development right of way process for the Missouri Department of Transportation (MoDOT) and the Missouri Division Office of the Federal Highway Administration (FHWA), and without compromising the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, the agencies approve this programmatic agreement for certain qualifying projects, including MoDOT and local projects. Although local projects are administered by local public agencies, all project funding flows through MoDOT and MoDOT does have a stewardship role for these local projects for right of way compliance.

Programmatic evaluations reduce the processing time and effort necessary to document and demonstrate the certification requirements have been met. This programmatic agreement will allow MoDOT to classify applicable MoDOT and local projects as having met the certification requirements without submitting each project to the FHWA for approval. MoDOT will continue to submit the Projects of Division Interest (PODI) certifications to the FHWA for review and approval. This programmatic agreement is in step with national trends that allow state DOT’s to assume more responsibility for their federal right of way compliance and the FHWA’s transition to a risk based stewardship and oversight management role.

Federal-Aid project construction authorization gives MoDOT the authority to advertise the physical construction for bid. One of the following right of way conditions must be certified in the project agreement. If it is determined that the completion of right of way work cannot be done in advance of the highway construction then appropriate notification shall be provided in the bid proposal. [Reference 23 CFR 635.309(b) and (c)]

• Certification 1 (Cert 1 or Entire Clearance) is applicable when all necessary real property interests, including control of access rights when pertinent, have been acquired including legal and physical possession. Trial or appeal of cases may be pending in court but legal possession has been obtained. There may be some improvements remaining on the real property interests but all occupants have vacated the lands and improvements and the State has physical possession and the right to remove, salvage, or demolish these improvements and enter on all land.


• Certification 2 (Cert 2) is applicable when although all necessary real property interests have not been fully acquired, the right to occupy and to use all real property interests required for the proper execution of the project has been acquired. Trial or appeal of some parcels may be pending in court and on other parcels full legal possession has not been obtained but right of entry has been obtained, the occupants of all lands and improvements have vacated and the State has physical possession and right to remove, salvage, or demolish these improvements.


• Certification 3 (Cert 3 or Conditional Clearance) is applicable when the acquisition or right of occupancy and use of a few remaining parcels is not complete, but all occupants of the residences on such parcels have had replacement housing made available to them in accordance with 49 CFR 24.204. The State may request authorization on this basis only in very unusual circumstances. This exception must never become the rule. Under these circumstances, advertisement for bids or force-account work may be authorized if FHWA finds that it will be in the public interest. The physical construction may then also proceed, but the State shall ensure that occupants of residences, businesses, farms, or non-profit organizations who have not yet moved from the real property interests are protected against unnecessary inconvenience and disproportionate injury or any action coercive in nature. When the State requests authorization to advertise for bids and to proceed with physical construction where acquisition or right of occupancy and use of a few parcels has not been obtained, full explanation and reasons therefor including identification of each such parcel will be set forth in the State’s request along with a realistic date when physical occupancy and use is anticipated as well as substantiation that such date is realistic. Appropriate notification shall be provided in the bid proposals identifying all locations where right of occupancy and use has not been obtained.

MoDOT generally provides the Cert 1 or Entire Clearance for Federal-Aid projects. MoDOT does not utilize the Cert 2 option. MoDOT utilizes written procedures for approving Cert 3 or Conditional Clearance certifications (see Attachment A). Although this option is utilized on a regular basis, the Cert 1 or Entire Clearance is normally provided prior to letting or award of the project. Therefore the completion of right of way work has no adverse effect on the property owners, the contractor, or the construction project.

This agreement shall not preclude MoDOT or the FHWA from requesting approval when deemed necessary, even though the action falls within the bounds of this agreement.

Approving a certification does not eliminate the need for compliance with Uniform Act laws and related right of way regulations. MoDOT and the FHWA will assure that these other requirements are met for projects.

The programmatic agreement is subject to a biennial review by MoDOT and the FHWA for an assessment of compliance, its value, and of changes that make it more effective. It is acceptable that the parties choose to reexamine the programmatic agreement at any time.

Attachment A Procedures for Approving Conditional Clearance Certifications March 2011

Each Conditional Clearance Certification is unique; therefore, MoDOT does not have a specific checklist for approving Conditional Clearance Certifications. Instead, MoDOT staff takes the specific characteristics of the project and status of individual parcels into consideration before moving forward to advertise a project prior to issuing an Entire Clearance Certification. MoDOT staff places Conditional Clearance Certification into two categories, which are outlined below. Keep in mind that the following information identifies examples of situations encountered, but does not include each and every situation.

Category 1 Examples Waiting for check to be cut

• Conveyance documents have been executed and received.
• Approximately 3 days are needed to cut a check.
• Occurs prior to the letting.

Waiting for possession time to run out

• Conveyance documents have been executed and received.
• Property owner has received payment.
• Usually occurs prior to the Notice to Proceed.
• JSP included in the contract.
• Work around plan required, if possession will not occur prior to the Notice to Proceed.

Order of Condemnation received

• By State law, the appointed Condemnation Commissioners have 45 days to file the Report of Commissioners, which defines how much compensation each owner is to receive.
• Approximately 3 days are needed to cut a check.
• Possession will occur 10 days after payment, if property is unimproved with no personal property.
• Possession will occur 90 after payment, if personal property is involved and it is not a residential displacement of an owner’s principle place of residence.
• Possession occurs 100 days from the filing of the Report of Commissioners, if the owner is displaced from his/her principle place of residence.
• JSP included in the contract.
• Work around plan required, if possession will not occur prior to the Notice to Proceed.

Category 2 Examples No Order of Condemnation

• Condemnation Hearing must be scheduled for prior to the letting.
• Project is advertised, but evaluated again before the letting.
• If a negotiated settlement is reached, the project will proceed to letting.
• If the Order of Condemnation is received during the Condemnation Hearing, the project will proceed to letting. (See bullets under "Order of Condemnation Received.")
• If the Order of Condemnation is not received during the Condemnation Hearing, the project will be pulled from the letting.
• JSP included in the contract.
• Work around plan is required.

Waiting for executed documents

• A verbal agreement has been reached, but the executed documents have not yet been received.
• Plan B is required. For example, the parcel will be removed from the plans, or the parcel will be condemned.
• If the parcel will be removed from the plans, the project will proceed to letting.
• If the parcel will be turned over for condemnation, the Condemnation Hearing must be scheduled for prior to the letting. (See bullets under "No Order of Condemnation received.")
• JSP included in the contract.
• Work around plan required.

MoDOT’s staff members work very closely together for Conditional Clearance Certifications, especially those falling under Category 2. Coordination is done to ensure that the bid documents include a Job Special Provision that addresses the status of properties impacted. MoDOT staff also verifies that the delayed possession that exists on specific parcels will not impede the overall progress a contractor can make within the remaining available project limits, and that the delayed possession will not impact the pricing or schedule. Again, each Conditional Clearance Certification is unique, so a specific checklist would not be effective. Instead, Conditional Clearance Certifications are evaluated on a case-by-case basis. The above information, however, will hopefully provide some insight into the thought process used by MoDOT staff when these situations arise.

APPENDIX B

Programmatic Agreement for Disposal/Lease/License at Less than Fair Market Value Between Missouri Department of Transportation and Missouri Division, Federal Highway Administration

In order to streamline the project development right of way process for the Missouri Department of Transportation (MoDOT) and the Missouri Division Office of the Federal Highway Administration (FHWA), and without compromising the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, the agencies approve this programmatic agreement for certain qualifying actions, including MoDOT and local actions. Although local projects are administered by local public agencies, all project funding flows through MoDOT and MoDOT does have a stewardship role for these local projects for right of way compliance.

Programmatic evaluations reduce the processing time and effort necessary to document and demonstrate the real property management requirements have been met. This programmatic agreement will allow MoDOT to classify applicable MoDOT and local actions as having met the real property management requirements without submitting each action to the FHWA for approval. MoDOT will continue to submit requests along the Interstate to the FHWA for review and approval. This programmatic agreement is in step with national trends that allow state DOT’s to assume more responsibility for their federal right of way compliance and the FHWA’s transition to a risk based stewardship and oversight management role.

Per 23 CFR 710.403(d) and (f) the State DOT shall request the FHWA review and approval for all disposals/leases/licenses at less than fair market value if the original real property interests were obtained utilizing Title 23 funds. Although MoDOT does not always receive the fair market value in cash or appraised amount in cash for the disposal/lease/license, they consider the balance of the off-set against several factors including the cost of continued maintenance, liability, buyer supplied survey, part of a negotiated settlement on a STIP project or litigation, etc. (see Attachment A and Attachment B).

This agreement shall not preclude MoDOT or the FHWA from requesting approval when deemed necessary, even though the action falls within the bounds of this agreement.

Approving a certification does not eliminate the need for compliance with Uniform Act laws and related right of way regulations. MoDOT and the FHWA will assure that these other requirements are met for projects.

The programmatic agreement is subject to a biennial review by MoDOT and the FHWA for an assessment of compliance, its value, and of changes that make it more effective. It is acceptable that the parties choose to reexamine the programmatic agreement at any time.

Attachment A

Missouri Revised Statutes Chapter 227 State Highway System Section 227.290

August 28, 2013

Highways and transportation commission may convey or exchange land or leasehold.
227.290. 1. Whenever in the opinion of the state highways and transportation commission the advantageous use of any interest in land or any leasehold which has heretofore or may hereafter be acquired by the commission has ceased, or for any other lawful reason the commission wishes to dispose of the property, the commission shall have authority to convey or exchange such interest in land or leasehold for its approximate fair market value pursuant to any administrative procedure or process as determined by the commission, by deed signed by its chair or vice chair and attested by its secretary. Before any sale shall be consummated under this section, the original owner of the property which is now offered for sale by the commission and if such owner shall at the time of sale be in possession of the adjoining land, shall be notified by written notice by the department of transportation of such contemplated sale. All moneys received from the disposal of any such interest in land or leasehold shall be deposited by the commission in the state treasury to the credit of the state road fund. Any land or leasehold herein described that has been donated without charge by the owner to the purpose of state highway construction or maintenance and such owner is still in possession of contiguous property, the same shall revert to such original owner without cost to the owner if and when relinquished by the commission

2. The commission may also, in its discretion, convey at no cost, or exchange its interest in any land or leasehold that is no longer necessary to be used for the construction, maintenance, or operation of the state highway system, or for any other lawful reason, to any federal, state, or local governmental entity.
(RSMo 1939 § 8760, A.L. 2006 S.B. 840)
Prior revision: 1929 § 8112

Attachment B
MoDOT EPG
236.5.17 Valuing Excess Property

RSMo 227.290 stipulates that the Commission is to obtain approximate fair market value for excess realty, except as addressed in this article (236.5 Property Management). For the purpose of this chapter in meeting requirements established in state statute and in the CFR, "approximate fair market value" shall include that prices (in money or exchange) concluded as follows: a for excess parcels that are non-stand-alone or owned as less-than fee; through direct negotiation with the entire market for the property, such as all adjoining owners, or the fee owner; or, b) for marketable stand-alone excess parcels; through an open public sale process based upon the appraised value and subsequent good faith negotiations, a public auction, or other competitive bid process. The documentation submitted to the Right of Way Section shall demonstrate how the transaction represents the approximate fair market value of the parcel. For more on valuing excess property, see EPG 236.6.3.7 Realty Asset Valuation.

The appraisal and the title opinion together help define the sale process most appropriate to the parcel. The appraisal is used to determine the potential market (stand alone or not) and the title opinion (fee or less than fee) may further define the field of potential purchasers.