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26 Preliminary Engineering Agreements as "excellent." This practice helps to ensure adequate com- munication and shared understanding of progress by both Three practices tied for the fifth highest number of responses the railroads and the highway agencies. Generally, the points rated as "excellent." One is the practice of having preliminary of coordination and concurrence were recommended to be at engineering agreements that allowed railroads to be compen- the preliminary planning stage, at 30% plan completion, 60% sated for engineering advice during preliminary development completion, and 90% completion. These four stages allow for even if the project is not eventually constructed. At the advi- early agreement on the preliminary concept scope and then sory panel meeting there was much brainstorming and dis- further concurrence as that general scope translates into an cussion about this practice and overwhelming support to increasingly detailed set of project plans. change the regulations that covered how and when railroads could be compensated for preliminary engineering work. The advisory panel in its first meeting discussed the fact that the Highway Agency Practices railroads, as private businesses, had to charge for the hours of As has been mentioned repeatedly, documenting "typical" work done irrespective of the final decision to construct a practices is subject to arbitrary generalization because of the project. Several states have said FHWA will not allow com- large diversity of public agencies. However, several of the pensating the railroads until the final agreement is signed. Many projects in the preliminary stages never get to construc- largest states have railroad-agreement manuals that illustrate tion or have a final agreement signed. Railroads never got their processes and provide insight into the state's general compensated for such work. One of the railroads discussed approaches. having hundreds of thousands of dollars of uncompensated The difficulties states face in securing railroad agreements is expenses attributed to its public projects division as a result. apparent, even in the dry and formal language of the process The participants at the advisory panel meeting felt that in manuals. One state's draft manual refers to the "coveted, view of the project objective to smooth relationships and devise yet ever elusive, construction and maintenance agreements" mitigation strategies to improve the workings between rail- needed from the railroads for each project. Another state warns roads and local and state transportation agencies, this issue its districts emphatically to expect a year or more delay in receiv- needed to be resolved and a better and simpler mechanism ing railroad approvals. A third state notes that one of the rail- to compensate railroads for preliminary engineering work roads provides agreements after a review of at least 6 months, needed to be devised. while another major Class I railroad requires 12 months. It is Railroads, like other private businesses, are accountable for apparent that the states frequently experience long review times the profitability of their units and operations. There is a nat- and delays. They warn districts to plan such uncertainties into ural inclination to focus on work that brings in revenue ver- project schedules. sus work that will not be compensated. The state agency and These manuals refer to the standard agreements, specifica- the railroad representatives felt strongly that the inability to tions, and contract provisions the states have developed to pay for preliminary engineering reviews was one cause of dis- ensure that the railroads' concerns are routinely addressed. cordance and delays. The documents attempt to streamline the review process by addressing known and long-standing railroad concerns pro- grammatically in all projects. The internal project managers, Have Scheduled Regular Meetings the outside design consultants, and ultimately the contractors "Have Scheduled Regular Meetings" is the second of the three are all required to incorporate these requirements directly practices that received the fifth highest number of responses into the project-development procedures. as "excellent." This was also identified as a good practice dur- Two of the more comprehensive approaches are summa- ing interviews with two of the Class I railroad representatives. rized below. The first is the Texas Department of Trans- The railroads identified this practice as one of the factors in portation's rail coordination manual. It outlines the steps and expediting reviews and approvals on projects. They noted that responsibilities of its project managers to enable them to secure the frequency of the conference calls varied from biweekly to railroad agreements. The second is a summary of the Illinois monthly to quarterly, depending on the maturity and progress DOT master agreement with CSX. The master agreement spells of the projects. These scheduled calls helped address project out the routine steps and provisions that both entities use to issues and schedules and enabled timely correction on activ- streamline their interactions. ities that were off schedule. Texas Department of Transportation Have Formal Points of Concurrence The Texas DOT is updating its rail project manual to try to fur- "Have Formal Points of Concurrence" is the last of three ther improve its interactions with the railroads. As with many practices that received the fifth highest number of responses other departments, it advises its internal project managers to

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27 seek immediate involvement of the railroads as soon as a proj- Boring data will be provided; ect is approved for preliminary development. It requires a The summary, description, and sequence of work will be DOT railroad project manager to seek a site visit with the rail- described; and road to get initial comments from it before plan preparation. All temporary crossings will be detailed. If a structure is involved, the project manager is to attempt to get a DOT bridge project manager present at all meetings with The Texas DOT has standard drawings and plan notes for the railroad. Projects are also recorded in an agreement status typical railroad items, unique to each railroad. For instance, report, which tracks the progress of agreements. The report is the standard plan sheet for a bridge to be constructed on UP updated monthly and shared with internal Texas DOT divi- right-of-way refers to the specific UP standards that must be sions and the railroad. Quarterly updates are sent to the dis- met. These standard drawings and notes are provided uni- tricts and to the district rail coordinators. In addition, a letter formly to accommodate the known requirements of this of authorization is issued by the Texas DOT, which serves as a specific railroad. "Coordinate with UPRR while performing standard preliminary engineering agreement allowing the rail- the work outlined in this Contract, and afford the same road to charge the DOT for reviews and consultations. cooperation with UPRR as with TxDOT," says the standard After initial concurrence from the railroad regarding proj- plan note. ect approach, the project manager secures the field surveys, "Arrange and conduct the safe operation of the tracks and soil drillings, signal diagnostics, and other items that will be property of UPRR and traffic moving on such tracks, or the fundamental to the project. These likewise are shared with the wires, signals and other property of the UPRR, its tenants and railroad. licensees, at or in the vicinity of the work," the standard note As detail design begins, the rail manual requires the use of advises the contractor. "The Contractor is responsible for standard drawings and project design elements that are specif- train delay costs and lost revenue claims due to any delays or ically developed to meet the railroad's requirements. These interruption of train operations resulting from Contractor's include the following: construction or other activities." The standard provisions for a UP bridge project include Detailed geographic and typographic information; another 91 separate paragraphs of instructions, all intended Typical roadway geometry; to ensure that Texas DOT bridge projects are predicated on Location of all utility poles and lines; the railroad's unique requirements. These provisions address Top-of-rail profiles for approximately 1,000 feet in each the key railroad requirements discussed earlier, including direction of highway intersection; issues such as safe conduct of construction activities; lack of Drainage features and calculations to ensure no increase in interference to train operations; adequate insurance; railroad discharge into railroad drainage systems; control over flagging and inspection; safe shoring to not harm Assurance that any demolition will occur in accordance tracks; and the exclusion of people, equipment, and materi- with railroad specifications; als from the minimum construction clearance envelope. Casing adequate to prevent cave-in will be used around The Texas DOT advises its project managers to expect review drilled shafts that are subject to railroad surcharge; times of between 2 months and 6 months for simple projects All minimal clearances required by the railroad are met for and up to two years for complex ones. vertical and horizontal clearances; At least one additional track is accommodated in the design; Illinois DOT Master Agreement All construction activities will remain at least 21 feet above the rail and 12 feet horizontally from it; The Illinois DOT is one of several state departments that The contractor will submit plans for erosion and sediment have developed master agreements for highway improve- control to be approved by the railroad; ments involving the railroads. This overarching agreement Erection over the right-of-way will not cause disruption to includes the major considerations required by both the rail- railroad operations and construction windows will be pro- road and the department of transportation. As individual vided by the railroad; projects arise, they are amended to the master agreement to Contractors must remain outside 50 feet of the track center save time. Among the major items included in the master when trains pass; agreement are the following: All permanent clearances will be verified before final project closeout; As with a partnering agreement, the master agreement notes A clear description of all work done by Texas DOT and that both parties desire to cooperate for the mutual benefit railroad employees will be provided; of themselves and their customers. All railroad equipment and utilities that may need adjust- They agree to process a separate, descriptive addendum for ment will be delineated; each individual project.

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28 For the projects amended to the agreement, the railroad Simplified Billing and Auditing will provide a right-of-entry and temporary construction A recurring point of contention between some highway easement. The railroad agrees to provide comments and approvals to agencies and the railroads was billing and auditing of reim- submitted plans and provisions within 90 days of receipt bursable costs. Some state officials complained of receiving by the agency. bills for meals, travel, flagging, and engineering expenses The state will not allow contractors to work until railroad that occurred in other states. Prompt explanations were not approval is received. forthcoming and they complained of protracted efforts to Both parties agree not to change approved plans without secure justification. Because the states are strictly audited the consent of the other. and criticized for paying unjustified expenses, the state offi- The railroad will be notified when contracts are awarded. cials were reluctant to pay such bills without formal docu- Preconstruction meetings will be held between the state, mentation. One state official said it was common for such the railroad, and the contractor. At these meetings a sched- bills to be turned over to a state agency that settles billing ule will be agreed to and necessary work by all parties will disputes, which took considerable staff time and caused be coordinated. considerable billing delay for both the highway agency and The state will inspect the work to ensure that the contrac- the railroad. It also led to distrust and suspicion of the over- tor meets the provisions of the agreement. all railroad coordination process, he said. At least one of The contractor will give 30 days' notice of needing flagging the Class I railroads complained of considerable ambiguity services and will give 5 days' notice of cancellation. regarding which costs were eligible and which were not. The railroad will provide flagging, at state expense. They noted that they had staff from multiple states work- The state and railroad agree that Railroad Protective Liabil- ing on projects, therefore costs for staff, engineering, and ity Insurance of $5 million per instance and up to $10 mil- travel outside of the state in which a project was located lion aggregate will be provided at state expense. may be needed. The state will cover the railroad's costs for construction It appeared clear that a chance for process improvement inspection, preliminary engineering, and force account lies in further simplification and standardization of billing. work. Some examples of simplified processes are the following: The addendum will serve as a right-of-entry agreement. Twenty-three feet of vertical clearance and 12 feet of lateral Discussed below is an Iowa innovation to pay for standard clearance will be provided at all times. track improvements on a lineal foot basis for typical proj- The safety and continuity of rail traffic will be protected at ects, such as crossing resurfacings. all times. Contractor plans will be approved by the rail- Amtrak said it is negotiating with Massachusetts officials road, but the contractor retains liability for his acts. to directly enter bills and their explanation into the state's A separate Special Provisions and Insurance Requirements billing system, saving both parties the administrative cost is included that addresses standard items, such as the of handling paperwork. following: Several states pay fixed per-unit prices for components in The authority of railroad engineering over all operations. typical safety-upgrade projects. The contractor will not interfere with any railroad oper- ations without written approvals. The contractor will provide notice before commencing Summation of State Practices work. The contractor will abide by all access and crossing It is clear that many states have gone to great lengths to provisions. anticipate the railroads' requirements, to incorporate those The contractor will cooperate with the railroad to antic- requirements into standard agency practices, and to attempt ipate the railroad's force account scheduling. to make the project agreement process routine and pre- The contractor cannot charge the railroad for any delays dictable for the railroads. It also is clear from the railroads' to his project on account of CSX force account delays. approval of many of these standard processes, that the rail- The contractor will abide by all railroad construction roads have routinely agreed to practices intended to stream- provisions. line the approval process. It is clear also, however, that Blasting will be approved by the railroad. problems still routinely develop between the entities. These All ditches and drainage will be protected. problems lead to disputes over the cost of railroad services, The railroad has sole authority over flagging, and the to changes in proposed project plans and to delays in project costs will be covered by the agency or contractor. schedules.