Category:153 Agreements and Contracts: Difference between revisions

153.1 The Agreement Process

The agreement process consist of five steps: 1) Draft the agreement, 2) MoDOT's internal review of the draft agreement, 3) Chief Counsel’s Office (CCO) review, 4) Approval and execution by the other party, and 5) Final execution of the agreement. This article provides details on each step and other important information needed to properly execute agreements. A simplified chart of the process is available. Standard multi-use agreements (except for TR22 Excavation Permit and TR54 Excavation Permit Local Government) stored in the eAgreements site will be drafted, reviewed, executed and tracked within the eAgreements site. One-Time Use Agreements are not stored in eAgreements and must follow the guidelines in the CCO Contracts Manual.

153.1.1 Things to Know Before Beginning the Process

Every drafter should have a certain level of training and an understanding of:

• CCO Contracts Manual
• Acceptance of Liability Policy
• The Execution of Documents Policy
• MHTC Policies and
• the eAgreements site.

153.1.1.1 CCO Contracts Manual

The CCO Contract Manual details the history and goals of the contract review process, the different types of agreements, the components of agreements, and the contract review procedures and policies. This manual should be referred to whenever there are any questions about any of those topics and to gain an understanding of Chief Counsel’s review process. Although standard boilerplate agreements should be used word for word, if the need arises, please also consult this manual prior to making any changes to a standard boilerplate agreement. This manual provides guidance and reasoning for the different parts of an agreement. If it is determined changes are required, please refer to section 3(J) Drafting Tips for Preparing Form Contracts for best practices on writing agreements.

153.1.1.2 Acceptance of Liability Policy

This policy addresses liability issues beyond the regular standard of doing business and provides a framework for review and consideration of liability issues prior to entering into an agreement.

The general rule is that Missouri Highways and Transportation Commission (MHTC) will not accept the liability of another person or organization.

153.1.1.3 The Execution of Documents Policy

Generally, all agreements need to be executed by MHTC. The Execution of Documents Policy lists the exceptions to this rule. This policy lists who the Commission has delegated authority to execute contracts. The Commission also delegates authority for approval and/or execution of documents throughout its policies. Refer to EPG 153.1.1.4 MHTC Policies for more information.

153.1.1.4 MHTC Policies

The Commission delegates authority for approval and/or execution of documents throughout the MHTC policies. In those cases where the Commission has delegated its authority for approval and/or execution of specific documents or documents related to a specific subject, please refer to the respective subject. For example, see “Highways – Traffic Control” for policies related to signs.

153.1.1.5 eAgreements site

The eAgreements site exists to centralize storage, collect electronic data, automate workflow processes and aid process management for agreements between MoDOT and external parties. Standard multi-use agreements (except for TR22 Excavation Permit and TR54 Excavation Permit Local Government) stored in the eAgreements site will be drafted, reviewed, executed and tracked within the eAgreements site. One-Time Use Agreements are not stored in eAgreements and must follow the guidelines in the CCO Contracts Manual.

153.1.1.6 Training

Before beginning the agreement process the drafter needs to have the appropriate level of training. Please visit MoDOT-U or consult your supervisor to ensure you have the recommended training. This training should provide drafters with a level of knowledge to make them capable of preparing, routing and properly storing the agreements.

153.1.2 Step 1, Draft the Agreement

This step begins when a need arises for an agreement to be drafted. The time to complete this step will vary. This step is considered complete when it is submitted for internal review (Step 2).

153.1.2.1 Standard Boilerplate Agreements

First, the appropriate standard boilerplate agreement must be chosen. All current approved standard boilerplate agreement forms can be found on the eAgreements site. These forms should be used without change as they are CCO approved templates. If the boilerplate language of the approved standard form agreement has been modified, the draft must be sent to the assigned attorney representative for comments and tentative approval as to form. See EPG 153.2 Standard Boilerplate Agreement Reference Tables for additional details on each available standard boilerplate agreement.

153.1.2.2 Drafter’s Roles and Responsibilities

The drafter has several roles and responsibilities throughout the agreement process. The drafter sees the agreement from beginning to end. The responsibilities of the drafter in Step 1 are:

• Selection of the appropriate the standard boiler plate agreement to address the mutual understanding between MoDOT/MHTC and the executing party or parties.
• Review MoDOT/MHTC policies that relate to the agreement and contact CCO with any questions as needed.
• When available, reference the checklist specific to the agreement being drafted to be sure all items in the checklist have been adequately addressed.
• When sending the draft agreement to other executing party/parties for preliminary review, any changes by the other party/parties to the agreement requires review by CCO.

153.1.3 Step 2, MoDOT's Internal Review of the Draft Agreement

This step is essential to ensure that all policies are being followed and that each affected department or division is given a chance to review the agreement. See EPG 153.2 Standard Boilerplate Agreement Reference Tables for list of reviewers by standard boilerplate agreement. This step is considered complete when both the reviewers and drafter are satisfied with the agreement. Please allow sufficient time for reviews when determining timelines when final signatures are necessary.

153.1.3.1 Drafter’s Roles and Responsibilities

The responsibilities of the drafter in Step 2 are:

• Submit draft agreement to the reviewers, including any explanation of irregularities through the eAgreements SharePoint site.
• The drafter shall follow policy at all times. The drafter shall consider all of the reviewer’s comments and provide reasoning to the reviewer if the comment is not being incorporated.

153.1.3.2 Reviewer’s Roles and Responsibilities

The reviewers may differ from agreement to agreement. See EPG 153.2 Standard Boilerplate Agreement Reference Tables for the list of appropriate reviews for the agreement being used.

• Review agreements and provide comments within 5 business days through the eAgreements SharePoint site.
• When reviewing the agreement, provide comments on items pertinent to your division.
• If the reviewer has no comments, a response is still required. “No comment” is acceptable.

153.1.3.3 Agreements Written By Other Entities

Agreements drafted by other entities (FAA, FHWA, USDOT, Corps of Engineers, other state agencies, etc.), that use the other entities’ agreement template (i.e. bi-state agreement) must be reviewed by the Agreements Review Group through email and then routed to CCO with the MHTC Contract Submittal Form found in Microsoft Word templates. The other entities’ template is not included in eAgreements, therefore, these other entity agreements will not follow the eAgreements process. CCO will route the agreement to the Director’s Office and Commission Secretary’s Office, as applicable. After attestation and execution the Commission Secretary’s Office will upload the fully executed agreement into the eAgreements Record Center.

153.1.4 Step 3, Chief Counsel’s Office (CCO) Review

Once the drafter has received and incorporated all necessary revisions to the draft agreement, the drafter will submit the draft agreement to CCO for review through the eAgreements site. CCO will then have 5 business days to review the draft agreement and address any legal issues through the eAgreements SharePoint site. If CCO requires any significant changes to the draft agreement, the agreement may need to be submitted again for internal review (Step 2).

Drafter’s Roles and Responsibilities

The responsibility of the drafter in Step 3 is to send agreement to appropriate CCO contact for review and preliminary approval.

153.1.5 Step 4, Approval and Execution by the Other Party

Once all revisions have been made to the agreement, the agreement is ready for approval and execution by the other party.

Drafter’s Roles and Responsibilities

The responsibilities of the drafter in Step 4 are:

• Develop final draft and submit to other party/parties for execution.
• Any changes from the other party or parties may require the agreement to be reviewed again by the reviewers and CCO.
• Ensure that any necessary acknowledgment pages are included with the submitted agreement to the other party or parties as referenced in EPG 153.2 Standard Boilerplate Agreement Reference Tables.
• If an ordinance is required, remind the executing party to include a copy of it with the partially executed agreements.

153.1.6 Step 5, Final Execution of Agreement

When the agreement has been returned by the other party, the agreement is ready for execution. When applicable, the agreement is approved as to form by CCO, executed, and attested to by the Commission Secretary’s Office. Refer to the The Execution of Documents Policy and MHTC Policies to determine who is responsible for execution. CCO has provided a list of standard agreements that do not require approval as to form. EPG 153.2 Standard Boilerplate Agreement Reference Tables are also available as a guide.

153.1.6.1 Drafter’s Roles and Responsibilities

The responsibilities of the drafter in Step 5 are:

• When required, send agreement to the appropriate Central Office contact or CCO attorney for final approval as to form and final signatures.
• Attach the Property Page from the eAgreements SharePoint site to all agreements.

153.1.6.2 eAgreements Properties Page

The Properties Page from the eAgreements SharePoint site should be attached to each agreement when submitted for execution. See the eAgreements SharePoint site Manual to access the Properties Page. The Properties Page takes the place of the MHTC Contract Submittal Form.

153.2 Standard Boilerplate Agreement Reference Tables

These tables are to be used as a reference only. They aid in determining the appropriate agreement form to be used. The tables and links within the tables should be used as a guide. Please refer to CCO Contracts Manual, Acceptance of Liability Policy, The Execution of Documents Policy and MHTC Policies for all questions about policy.

153.3 Retention Schedule

The executed agreement should not be kept longer than specified in the Retention Schedule. Financial Services is the custodian of the Retention Schedule. All agreements in the eAgreements SharePoint site will be retained according to the Retention Schedule and automatically purged according to the Retention Schedule.