236.1 General Information

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236.1.1 Introduction

236.1.1.1 Reason

Right of way acquisition is a complex profession. It is therefore imperative that policy be written and procedures established to enable each member of the right of way organization to be completely informed and able to perform their duties in a skillful manner. Each right of way employee is a professional and must accomplish assigned duties in a professional manner.

236.1.1.2 Scope

EPG 236 Right of Way contains the regulations, requirements and procedural directives governing the operations of the Right of Way Section and will be updated and amended as needed.

236.1.1.3 Purpose

EPG 236 Right of Way is to be used as the policy and procedure guide for the Right of Way Section.

Its contents establish a uniform method for completing each phase of the right of way operations. Each district will comply with EPG 236 in its entirety unless written authority is granted by the Right of Way Section to deviate from the prescribed policy.

236.1.1.4 One Standard of Operation

The Missouri Highway and Transportation Department has only one standard of operation, which is applicable for all right of way acquisition. State projects and federal-aid projects are to be handled in the same manner. The Right of Way Section must give prior approval for any deviation in procedure.

236.1.1.5 Federal Regulations

Federal regulations governing right of way acquisitions are found in 23 CFR (Code of Federal Regulations) and 49 CFR, Part 24. Compliance with these regulations is required if federal funds are to be used in any part of a project. The policy and procedures outlined in EPG 236 are written to include all of the federal requirements.

236.1.1.6 FHWA--State Relationship

The Federal Highway Administration right of way and state right of way personnel work cooperatively to assure federal requirements for right of way acquisition are met. The Federal Highway Administration periodically inspects both division and district right of way records to assure that federal requirements are being complied with. Division and district right of way personnel will cooperate with the Federal Highway Administration by supplying required records and documents for inspection. All discrepancies and deficiencies discovered by the Federal Highway Administration will be reported in writing to the Asst. to the State Design Engineer - Right of Way. This correspondence from the Federal Highway Administration office is transmitted through the Chief Engineer's office. The Asst. to the State Design Engineer - Right of Way will examine the contents of said written reports and determine those deficiencies or discrepancies that are not in compliance with approved division policy and will notify the district by written correspondence of the adjustment in operating procedures that need to be improved.

Additional information or documents required by the Federal Highway Administration shall be requested either in writing or by telephone from the Asst. to the State Design Engineer - Right of Way. District right of way personnel are not required to furnish additional information to Federal Highway Administration unless said request is received from the Asst. to the State Design Engineer - Right of Way.

236.1.1.7 Division Right of Way Liaison

Division Right of Way Field Liaison Officers are responsible for liaison and communications between the district and the division right of way personnel. They must assure that the state's right of way policy and procedures are understood and carried out in an acceptable manner. Liaison Officers provide advice and direction to district personnel concerning right of way matters not covered by written policy.

236.1.1.8 Communications

Good communication within the department is essential. Copies of correspondence must be directed to all interested parties, both in the division and district offices. Instructions provided in telephone conversations must be confirmed by letter and memos should be placed in pertinent files explaining actions taken in response to telephone instructions.

236.1.1.9 Letter Writing

Inter-department correspondence should be signed by the individual writing the letter. This correspondence should be addressed to the appropriate District or Division Engineer/Director or higher level when appropriate.

The District or Division Engineer/Director, or higher level when appropriate, will sign outside correspondence. The response to letters that were addressed to the Chief Engineer should be written for the Chief Engineer's signature.

Headings for letters containing subject, route, county, job number, etc. may be used on inter-department correspondence. These headings should be omitted when writing the general public since the data will have little meaning.

236.1.1.10 Schedule of Work

District Right of Way Managers, under the supervision of District Engineers, schedules work in their district to clear right of way projects so that construction contracts can be awarded on schedule. If letting schedules are not realistic, the District Right of Way Manager must inform the District Engineer. Projects involved should be rescheduled to provide the time necessary for acquiring right of way in a manner compatible with requirements outlined in EPG 236 Right of Way.

236.1.1.11 Public Relations

Right of way personnel are public relation agents representing the Missouri Department of Transportation as they have direct contact with the public. The appearance, attitude and reliability of the individual right of way employee creates an image of the Missouri Department of Transportation in the eyes of those with whom they come in contact. Every effort must be made to reflect an image that is a credit to each employee and to the department.

236.1.1.12 Code of Ethics

The International Right of Way Association has developed a code of ethics that every individual in the division and district right of way organizations should live up to as follows:

"Recognizing the responsibility of our profession to the people and business of our country, and believing that we should encourage and foster high ethical standards in our profession, we do hereby adopt the following CODE OF ETHICS for our constant guidance and inspiration predicated upon the basic principle of truth, justice and fair play.

(1) To show faith in the worthiness of our profession by industry, honesty and courtesy, in order to merit a reputation for high quality of service and fair dealing.

(2) To add to the knowledge of our profession by constant study and to share the lessons of our experience with our fellow members.

(3) To build an ever-increasing confidence and good will with the public and our employers by poise, self-restraint and constructive cooperation.

(4) To ascertain and weigh all of the facts relative to real properties in making an appraisal thereof, using the best and most approved methods of determining the just and fair market value.

(5) To conduct ourselves in the most ethical and competent manner when testifying as an expert witness in court as to the market value of real properties, thus meriting confidence in our knowledge and integrity.

(6) To accept our full share of responsibility in constructive public service to community, state and nation.

(7) To strive to attain and to express a sincerity of character that shall enrich our human contracts, ever aiming toward the ideal "The Practice of the Golden Rule."

236.1.1.13 Political Activities

The Missouri Highway and Transportation Commission Personnel Management Manual provides guidelines concerning political activities authorized, and prohibited, by department employees.

236.1.1.14 Personal Conduct

A person's conduct should at all times be such as to bring credit to that person and to the department. At no time should the employee's behavior be such as to invoke undue criticism.

The employee must understand, therefore, that there are certain habits and actions that will not be tolerated as set out in the Missouri Highway and Transportation Commission Personnel Management Manual.

236.1.1.15 Conflict of Interest

The practice of department employees holding additional jobs or engaging in any business or service to supplement their income is not desirable, but will be permitted under the following conditions:

• Does not interfere with the performance of the job for which they are employed with the department.

• The additional activity or business in which the employee is involved does not reflect discredit on the department.

• Does not involve work or business with or for firms, persons or agencies doing business with the department.

• Does not involve work in the professional field of engineering, law, land surveying or real estate.

The Missouri Highway and Transportation Commission Personnel Management Manual Violation provides guidelines concerning use or purchase of state equipment, materials or supplies.

In accordance with the Missouri Highway and Transportation Commission Personnel Management Manual employees are prohibited from purchasing real property, including buildings or improvements thereon from the Commission, or from any other owner or owners, if within an established corridor of a planned project without approval from the Chief Engineer. Such approval will not be granted if any evidence of speculation for profit on the part of the employee exists.

Violations of these requirements will result in disciplinary action.

236.1.3 Discriminatory Practices

236.1.3.1 General Policy Concerning Discrimination

Under no circumstance shall any form of discriminatory practice be tolerated on the part of any employee or party under contract with the Missouri Department of Transportation, or on the part of any other party carrying out any phase of the department's right of way acquisition and relocation program.

Supervisors and all others responsible for carrying out the right of way acquisition and relocation program must be constantly aware of the necessity for identifying, reporting, eliminating and/or correcting any discriminatory practice which may occur. (Any clearly defined practice suspected of being discriminatory, must be reported to the Asst. to the State Design Engineer - Right of Way, who will cause the discrimination claim to be investigated and, if sustained, see that appropriate corrective action is taken.)

Policies and requirements designed to assure that discriminatory practices will not occur can be separated into five (5) general categories, each of which will be discussed in the following subparagraphs. The categories are:

• Employment Practices
• Contract Procedures
• Right of Way Acquisition
• Property Management
• Relocation Assistance

236.1.3.2 Employment Practices

Equal Employment Opportunity is fully applicable concerning the employment and promotion of right of way personnel as set out in the Missouri Highway and Transportation Commission Personnel Management Manual.

236.1.3.3 Contract Procedures

Every contract for goods or services used in any phase of right of way shall be awarded to the lowest responsible bidder without discrimination on the grounds of race, color, religion, creed, national origin, sex, age, ancestry or physical ability. In addition, every contract originated in the Right of Way Section or district Right of Way Department must contain the clauses prohibiting discriminatory employment practices by contractors and subcontractors as follows:

"During the performance of this contract, contractor agrees as follows:

(1) Compliance With Regulations

The contractor will, during the performance of this contract, comply with the regulations of the Department of Transportation relative to non-discrimination as defined in Title 49, Code of Federal Regulations, Part 21, hereinafter referred to as the Regulations, and Executive Order of Governor of the state of Missouri, dated August 31, 1987, which are herein incorporated by reference and made a part of this contract.

(2) Nondiscrimination

The contractor, with regard to the work performed by the contractor after award and prior to completion of the contract work, will not discriminate on the grounds of race, color, religion, creed, national origin, sex, age, ancestry or physical ability of any individual in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The contractor will not participate either directly or indirectly in discrimination prohibited by Section 21.5 of the Regulations, including employment practices as set forth in Appendix C(a)(2).

(3) Solicitations for Subcontracts, Including Procurement of Materials and Equipment

In all solicitations either by competitive bidding or negotiation made by the contractor for work to be performed under a subcontract, including procurements of materials or equipment, each potential subcontractor or supplier shall be notified by the contractor of the contractor's obligations under this contract and the Regulations relative to non-discrimination on the grounds of race, color, religion, creed, national origin, sex, age, ancestry or physical ability.

(4) Information and Reports

The contractor will provide all information and reports required by the Regulations, or orders and instructions issued pursuant thereto, and will permit access to their books, records, accounts, other sources of information and the facilities as may be determined by the Missouri Department of Transportation or the Federal Highway Administration to be pertinent to ascertain compliance with such regulations, orders and instructions. Where any information required of contractor is in the exclusive possession of another who fails or refuses to furnish this information, the contractor shall so certify to the Missouri Department of Transportation, or the Federal Highway Administration, as appropriate and shall set forth what efforts it has made to obtain the information.

(5) Sanctions for Noncompliance

In the event of the contractor's noncompliance with the nondiscrimination provisions of this contract, the Missouri Department of Transportation shall impose such contract sanctions as it or the Federal Highway Administration may determine to be appropriate, including but not limited to:

• withholding of payments to the contractor under the contract until the contractor complies, and/or

• cancellation, termination or suspension of the contract, in whole or in part.

(6) Incorporation of Provisions

The contractor will include the provisions of paragraphs (1) through (6) in every subcontract including procurements of materials and leases of equipment, unless exempt by the Regulations, order of instructions issued pursuant thereto. The contractor will take such action with respect to any subcontract or procurement as the Missouri Department of Transportation or the Federal Highway Administration may direct as a means of enforcing such provisions including sanctions for noncompliance; provided however, that in the event the contractor becomes involved in or is threatened with litigation with a subcontractor or supplier as a result of such direction, the contractor may request the state to enter into such litigation to protect the interests of the state and, in addition, the contractor may request the United States to enter into such litigation to protect the interests of the United States.

In soliciting bids for contracts for goods or services, the invitation to bid or in the case of a negotiated contract, the letter to the proposed contractor shall contain the following paragraph:

"The Missouri Department of Transportation in accordance with Title VI or the Civil Rights Act of 1964, as amended, 78 Stat. 252, 42 U.S.C. 2000d to 2000d-4 and Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally assisted programs of the Department of Transportation issued pursuant to such Act, hereby notifies all bidders that it will affirmatively ensure that in any contract entered into pursuant to this solicitation, Disadvantaged Business Enterprises will be afforded full opportunity to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, religion, creed, national origin, sex, age, ancestry or physical ability in consideration for an award." Qualified Disadvantaged Business Enterprises otherwise qualified to provide goods or services used in the right of way program must be given an opportunity to bid for the right to provide such goods or services normally obtained through the bidding process. Lists of known qualified Disadvantaged Business Enterprises must be maintained in district offices and those listed must be mailed copies of bid proposals for goods or services that they are qualified to provide. District files must be documented to show that such action was taken (copies of transmittal letters which accompany bid proposals sent to Disadvantaged Business Enterprises on file in the district office are considered adequate documentation)."

Also, when bids for goods or services are solicited through routine newspaper advertising in SL District and KC District, the following notice must be published in a minority newspaper in the area (document the file to show that such action was taken).

"The Missouri Department of Transportation is now taking bids for (general description of goods or service) in relation to Route _______, Highway Job No. _______________. Parties interested in submitting bids should contact the Missouri Department of Transportation’s district office at (district's address) prior to (date) ."

Qualified fee appraisers shall not be discriminated against in regard to race, color, religion, creed, national origin, sex, age, ancestry or physical ability (if Disadvantaged Business Enterprise appraisers are offered appraisal assignments and refuse to accept them, so document the file and, if known, explain why such assignments were not accepted).

No Disadvantaged Business Enterprise or non-minority contractor, appraiser, person or firm will be employed by the Right of Way Section (including district Right of Way Departments) who are not qualified to provide the required goods or services.

236.1.3.4 Right of Way Acquisition

All right of way acquisition policies and procedures, including those applicable to title search, appraisal, negotiations, payments, closings, condemnation, possession and all others related to right of way activities, shall be identical, and shall be identically applied in all dealings with property owners from whom lands, property or rights must be acquired for highway purposes without regard to such owner's race, color, religion, national origin, sex, age, ancestry or physical ability. All department personnel who are involved in any phase of the right of way effort must fully understand this requirement and must further understand that they will be held accountable for any noncompliance on their part.

The right of way personnel who come in contact with property owners are also charged with the responsibility of assuring that all such owners including Disadvantaged Business Enterprises who may have language or other communication problems fully understand the right of way program as it relates to them.

236.1.3.5 Property Management

Every parcel of excess land and/or excess right of way and all improvements disposed of by the department will be sold to the highest bidder, or with proper authority, through negotiated sale without discrimination on the grounds of race, color, religion, creed, national origin, sex, age, ancestry or physical ability.

By the same token, department-owned land and property that is available for rent or lease shall be rented or leased to interested persons or firms by bids or negotiations, whichever is in the best interest of the department without discrimination on the grounds of race, color, religion, creed, national origin, sex, age, ancestry or physical ability.

Specific nondiscrimination clauses are required in leases and rental agreements under the following conditions.

Conveyances

Nondiscrimination clauses are not required in deeds conveying excess land, excess right of way and uneconomic remnants.

Leases and Rental Agreements

Nondiscrimination clauses are not required in instances when the department extends possession of a property to the party in occupancy at the time the property was acquired unless such party has the right to sub-rent. When sub-renting is allowed, the clause discussed in the following paragraph is applicable.

The following paragraphs are to be used for leases and rental agreements under the above conditions as appropriate and using the corresponding second paragraph for the lease.

NO DISCRIMINATION IN USE OF FACILITIES: The Lessee, for itself, its personal representatives, successors in interest and assigns, as a part of the consideration hereof, agrees to as a covenant which runs with the land that no person on the grounds of race, color, religion, creed, sex, age, ancestry, national origin, disability or veteran status shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination in the use of said facilities.

NO DISCRIMINATION IN FURNISHING OF SERVICES: No person shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination, in the construction of any improvement on, over or under such land and the furnishing of service thereon, on the grounds of race, color, religion, creed, sex, age, ancestry, national origin, disability or veteran status.

NONDISCRIMINATION CLAUSE: The Lessee shall comply with all state and federal statutes applicable to the Lessee relating to nondiscrimination, including but not limited to Chapter 213, RSMo; Title VI and Title VII of the Civil Rights Act of 1964 as amended (42 U.S.C. Sections 2000d and 20003, et seq.); and with any provision of the "Americans with Disabilities Act" (42 U.S.C. Section 12101 et seq.) which applies to the Lessee. The Lessee shall use the premises in compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Part 21.

(Use this paragraph with Lessee.)

BREACH OF NONDISCRIMINATION COVENANTS: In the event of breach of any of the nondiscrimination covenants in paragraphs 20 and 21, the Lessor shall have the right to terminate the lease and to re-enter and repossess said land and facilities thereon and hold the same as if this lease had never been made or issued.

236.1.3.6 Relocation Assistance

Information in the article entitled EPG 236.8 Relocation Assistance Program relates to the probation of discriminatory practices in carrying out the department's relocation assistance and payment program.

236.1.3.7 Records and Reports

District Offices

Each district office must maintain specific file jackets for each of the six (6) record categories listed below (seven categories in SL District and KC District) as a minimum district discriminatory practices file. The file jackets, properly identified, will be maintained in each district even though some may be empty due to a justifiable lack of information listings and/or activity relating to any one of the specific record categories. It is highly recommended that each district assign one member of its right of way staff the specific duty of maintaining its discriminatory practices file and establish a procedure to assure that the proper records are made available.

(1) A file jacket containing separate files for each discriminatory practice case reported to or discovered by the district. Each case file should include:

• resume of the specific discriminatory action
• source of information (how such practice was uncovered)
• all letters, transmittals and reports relating to the subject case
• explanation of corrective actions taken by district

(2) A file jacket containing resumes of any Disadvantaged Business Enterprise recruiting efforts by the district and the results of such efforts. (Include any available supporting documentation.)

(3) A file jacket containing records of all employment applications submitted to the district Right of Way Office by minorities and females and resumes of actions taken relating to each application. For example, show whether the applicant was employed by the department in a specific job classification or was not employed and, if not, explain why. (If a central employment application file is being maintained in the district, which contains all applications received in the district, it will not be necessary for the Right of Way Office to maintain a separate application file jacket as discussed in this paragraph.)

(4) A file jacket containing lists of all known qualified Disadvantaged Business Enterprises by category of goods or services including qualified minority and/or female appraisers.

(5) A file jacket containing copies of transmittal letters which accompany bid proposals sent to Disadvantaged Business Enterprises. Such letters should reflect date, name of contractor, type of goods or services involved and any other pertinent information.

(6) A file jacket containing records of contacts with minority and/or female appraisers. Be very specific concerning contacts with minority and/or female appraisers who were offered appraisal contracts, include a resume of the results of such contacts; specifically, whether or not the contract was accepted by the appraiser and, if not, the reasons why.

(7) (Applicable to Districts 4 and 6 only). A file jacket containing copies of notices published in minority newspapers soliciting bids for goods or services. Copies of such notices in the file must be dated and identified.

Division Office

A separate file for each discriminatory practice reported to or discovered by the division office including:

• resume of the specific discriminatory action
• source of information (how such practice was uncovered)
• investigator's report
• all correspondence relating to the subject case
• explanation of corrective actions taken by division.