The following procedures shall be followed to assure the proper completion of utility relocation necessitated by the State Highway Program. To provide uniformity and avoid duplication, these procedures shall be followed on all State Highway Projects whether or not Federal Aid participation is involved. The FHWA's reimbursement to the New Mexico State Highway and Transportation Department will be governed by State Law and State Regulations, as well as the Code of Federal Regulations, Title 23, Part 645, Subpart A and Subpart B. When State Law or Regulation differs from the aforementioned Code, (Part 645, Utilities), a determination shall be made by the Department, subject to concurrence by FHWA, as to which standards shall govern, and the record will be documented accordingly for each relocation in which the differing procedural action is undertaken. The Department shall develop a Utility Cooperative Agreement for handling the relocation of utilities. The Agreement shall clearly stipulate the responsibilities of each party for financing and accomplishing the relocation work, shall incorporate the appropriate regulation(s) by reference and designate the method to be used for performing the work. The method for developing all relocation costs, including engineering and relocation construction, shall be acceptable to the Department and to the Federal Highway Administration on Federal Aid projects. When applicable, the Agreement shall specify the terms and amounts of any contributions or repayments made or to be made by the utility to the Department under eligibility provisions of State Laws and Federal Regulations. When the relocation involves both work to be done at the Department's expense and work to be done at the expense of the utility, the Agreement shall state the share to be borne by each party. Except as otherwise provided by this Agreement, authorization by the Department to the utility to proceed with the relocation work may be given after it has been included in an approved program and fulfills State and Federal requirements. If the utility does not have the necessary resources to perform the relocation, such work may be done as follows: (1) a contract awarded by the utility to the lowest qualified bidder based on appropriate procurement procedures; (2) inclusion as part of the Department's highway construction contract let by the Department as agreed to by the utility; or (3) an existing continuing contract, provided the costs to the Department are reasonable. All contract work performed for the utility under a contract let by the Department shall be reported separately from the other contract items on the highway project. All utility relocation costs shall be recorded by means of work orders in accordance with a work order system approved by the Department, except when another method of developing and recording costs, such as a lump-sum agreement, has been approved by the Department, and the Federal Highway Administration when applicable. The utility shall keep its work order system or other accounting procedure approved by the Department in such a manner as to show the nature and cost of each item. The current Federal Aid Policy Guide shall be used as a guide for all cost development and reimbursement matters. All reimbursed costs shall be subject to state audit for a period of three years following the date of final payment.

1. A. Locating utilities: On all proposed highway construction and/or maintenance projects, utilities shall be located horizontally, vertically, shall be identified as to type and ownership, and their locations tied to the project center line. The locating process should meet, as a minimum, survey requirements outlined in the Department's Survey Manual, unless otherwise specified. Railroad facilities must also be treated as a utility, the facilities located and tied to the center line of track or other railroad structure, and referenced to existing railroad mile posts. The location should be conducted early enough in the project development process so as to allow for inclusion of the utility and/or railroad information in the highway construction Field Design Inspection plans.
2. B. Location stage: The Railroad and Utility Section of the Department shall become involved at the inception of each State Highway Project. The earliest conceptual design information available shall be reviewed to determine whether possible serious utility conflict can be avoided by minor highway alignment revisions without undue added cost. The assigned Agent should discuss the possibility of alignment changes with the assigned Project Development and Design Engineers as appropriate, and any other observations that have been made that might improve cost benefits to the project concerning the utility facilities. Liaison with the utility owners involved shall begin at this stage to avoid the installation of new utilities by the utility owners that could conflict to an even greater extent. If preliminary right-of-way maps are available, a preliminary review could disclose the extent of the utility involvement and give the Agent a workable idea as to the eligibility each owner may have for utility relocation reimbursement. Preliminary coordination meetings with all of the affected utilities in attendance should serve to avoid future problems concerning where each utility owner must place their relocated utilities to avoid conflict with the other utilities involved.
3. C. Project programming procedures: Utility adjustments eligible for reimbursement on Federal-Aid Highway Projects shall be programmed in accordance with the requirements set forth in Title 23 of the Code of Federal Regulations, Part 630(A). Generally, utility relocations and utility relocation engineering will be programmed when the initial state highway project programming is accomplished. Preliminary Engineering for the use of Consultant Engineers engaged by the utility owner will be programmed each time these services are required and authorized by the Department and the FHWA. The utility lead time cannot commence until the Utility Section has access to plans sufficiently completed to permit the utilities to design their relocations. Therefore, the plans should be in the post Grade & Drain or pre-Plan-in-Hand stage, with definite line grades, right-of-way, access control and other major features shown before they may be sent to the utilities with the formal authorization to proceed with their preliminary engineering. Prior to this stage, any plans provided to utilities must clearly be marked as "preliminary" with a statement that they are not yet authorized to proceed on any basis.
4. D. Preliminary engineering: Before preliminary engineering is authorized on a project, the basic eligibility for reimbursement of utility adjustment cost must be determined from a plan review. This eligibility is to be in conformity with the reimbursement policy set forth in Paragraph 19 [now 17.4.2.19 NMAC] herein. Plan review will, in most cases, resolve questions of such eligibility.

5. E. Engineering by utility's staff, or a consultant engineer: Preliminary engineering for utility relocation design can be accomplished by any of the following methods:

   (1) By utilization of the utility owner's engineering staff;

   (2) By utilization of a consultant engineer selected by the Department after consultation with the utility owner; contract shall be administered by the Department with the consent of the utility; or

   (3) By the utilization of a consultant engineer selected by the utility owner under a contract approved by the Department and FHWA; the contract shall be administered by the utility owner.

   (4) When the utility is not adequately staffed to perform the necessary preliminary engineering work related to the utility relocation on a State Highway Construction Project, Department and Federal funds may be used to reimburse the utility owner for amounts paid to engineers, architects, and others for allied services, provided such amounts are not based on a percentage of the relocation costs. The Department, utility owner and the engineering consultant shall agree in writing as to the services to be performed and the fee amount to be paid for the work in advance of the commencement of the engineering services agreed upon. The approval of these arrangements by the FHWA shall be obtained on all Federal Aid Projects.

   (5) State and Federal funds may participate in the cost of consultant engineering services performed on existing continuing contracts between the utility and the consultant when it can be demonstrated that such work is performed regularly for the utility at a reasonable cost.

   (6) The basic eligibility for reimbursement for the utility relocation costs must be determined from near final highway construction Plan and Profile Sheets developed after the Department's Grade and Drain Inspection. A utility owner must be otherwise entitled to utility relocation reimbursement costs to be eligible for payment for utility relocation preliminary engineering (PE). The PE written authorization is a commitment by the Department to reimburse the utility for PE, subject to compliance with these regulations.

   (7) If the utility relocation preliminary engineering is determined to be ineligible for reimbursement after the plan review, a non-reimbursable PE notice will be sent to the utility owner requesting that they commence their relocation design effort at their own expense, and on a schedule which would insure that the utility relocation construction would be completed in a timely manner.

   (8) If the project should be abandoned, postponed, or delayed by the Department, the utility is entitled to be paid for their design effort from the date of the PE authorization to the date of abandonment, but only if the utility was eligible initially for utility relocation PE.

   (9) If a highway project is delayed, substantially revised or even abandoned and the utility has incurred engineering costs at the request of the Department, such costs are not eligible for reimbursement if the relocation is not reimbursable.

   (10) It should be noted by the utility owner that any costs incurred by the utility owner in the initial negotiation phase, including early engineering reviews and relocation planning, will not be reimbursed. The Department shall not be liable for reimbursing any utility PE costs prior to notification and proof by the utility of its compensable property rights and after the Department has provided the utility written authorization of its intent to reimburse the utility for its costs of relocation.

   [3/10/71, 11/15/96; Recompiled 12/31/01]