Failure of Utility Owners to Cooperate. 6.8.4.1 DB Contractor shall use best efforts to obtain the cooperation of each Utility Owner as necessary for the Utility Adjustment. DB Contractor shall notify TxDOT immediately if (a) DB Contractor is unable (or anticipates that it will be unable), after diligent efforts, to reach agreement with a 6.8.4.2 If DB Contractor requests TxDOT’s assistance pursuant to Section 6.8.4.1, DB Contractor shall provide evidence reasonably satisfactory to TxDOT that (a) the Utility Adjustment is necessary, (b) the time for completion of the Utility Adjustment in the Project Schedule was, in its inception, a reasonable amount of time for completion of such work, (c) DB Contractor has made diligent efforts to obtain the Utility Owner’s cooperation, and (d) the Utility Owner is not cooperating (the foregoing items (a) through (d) are referred to herein as the “conditions to assistance”). Following TxDOT’s receipt of satisfactory evidence, TxDOT shall take such reasonable steps as may be requested by DB Contractor to obtain the cooperation of the Utility Owner or resolve the dispute; provided, however, that TxDOT shall have no obligation to prosecute eminent domain or other legal proceedings, or to exercise any other remedy available to it under applicable Law or existing contract, unless TxDOT elects to do so in its discretion. If TxDOT holds contractual rights that might be used to enforce the Utility Owner’s obligation to cooperate and TxDOT elects in its discretion not to exercise those rights, then TxDOT shall assign those rights to DB Contractor upon DB Contractor’s request; provided, however, that such assignment shall be without any representation or warranty as to either the assignability or the enforceability of such rights. DB Contractor shall reimburse TxDOT for TxDOT’s Recoverable Costs in connection with providing such assistance to DB Contractor. Any assistance provided by TxDOT shall not relieve DB Contractor of its sole and primary responsibility for the satisfactory compliance with its obligations and timely completion of all Utility Adjustment Work, except as otherwise expressly set forth in this Section 6.8.4. 6.8.4.3 If TxDOT objects in writing to a request for assistance pursuant to Section 6.8.4.1, based on DB Contractor’s failure to satisfy one or both of the conditions to assistance described in Sections 6.8.4.2(a) and (b), then DB Contractor shall take such action as is appropriate to satisfy the conditions and shall then have the right to submit another request for assistance on the same subject matter. If TxDOT objects in writing to a request for assistance pursuant to Section 6.8.4.1 based on DB Contractor’s failure to satisfy one or both of the conditions to assistance described in Sections 6.8.4.2(c) and (d), then DB Contractor shall take such action as DB Contractor deems advisable during the next 30 days to obtain the Utility Owner’s cooperation and shall then have the right to submit another request for assistance on the same subject matter. Notwithstanding the foregoing, no resubmittal will be accepted unless all TxDOT objections have been addressed in accordance with the preceding two sentences. This process shall be followed until DB Contractor succeeds in obtaining the Utility Owner’s cooperation or in otherwise resolving the dispute or until TxDOT determines, based on evidence DB Contractor presents, that the conditions to assistance have been satisfied. DB Contractor shall have the right to submit the question of the reasonableness of TxDOT’s determination through the dispute resolution process described in Section 19.
Appears in 2 contracts
Sources: Design Build Agreement, Design Build Agreement
Failure of Utility Owners to Cooperate. 6.8.4.1 DB Contractor 7.5.7.1 Developer shall use best diligent efforts to obtain the cooperation of each Utility Owner as necessary for the Utility AdjustmentAdjustments. DB Contractor Developer shall notify TxDOT immediately if (a) DB Contractor Developer is unable (or anticipates that it will be unable), after diligent efforts, to reach agreement with areach
6.8.4.2 7.5.7.2 If DB Contractor Developer requests TxDOT’s 's assistance pursuant to Section 6.8.4.17.5.7.1, DB Contractor Developer shall provide evidence reasonably satisfactory to TxDOT that (a) the subject Utility Adjustment is necessary, (b) the time for completion of the Utility Adjustment in the Project Facility Schedule was, in its inception, a reasonable amount of time for completion of such work, (c) DB Contractor Developer’s position in the dispute is otherwise reasonable, (d) Developer has made diligent efforts to obtain the Utility Owner’s cooperation, and (de) the Utility Owner is not cooperating (the foregoing items clauses (a) through (de) are referred to herein as the “conditions to assistance”). Following TxDOT’s 's receipt of satisfactory evidence, TxDOT shall take such reasonable steps as may be requested by DB Contractor Developer to obtain the cooperation of the Utility Owner or resolve the dispute; provided, however, that TxDOT shall have no obligation to prosecute eminent domain or other legal proceedings, or to exercise any other remedy available to it under applicable Law or existing contract, unless TxDOT elects to do so in its sole discretion. If TxDOT holds contractual rights that might be used to enforce the Utility Owner’s 's obligation to cooperate and TxDOT elects in its sole discretion not to exercise those rights, then TxDOT shall assign those rights to DB Contractor Developer upon DB Contractor’s Developer's request; provided, however, that such assignment shall be without any representation or warranty as to either the assignability or the enforceability of such rights. DB Contractor Developer shall reimburse TxDOT for TxDOT’s Recoverable Costs in connection with providing such assistance to DB ContractorDeveloper. Any assistance provided by TxDOT provides shall not relieve DB Contractor Developer of its sole and primary responsibility for the satisfactory compliance with its obligations and timely completion of all Utility Adjustment Work, except as otherwise expressly set forth herein. If the reason for the Utility Owner's alleged lack of cooperation is a disagreement with modifications made by Developer to a standard form Utility Agreement in accordance with Section 7.5.2.2, TxDOT’s approval of the Deviation shall not be construed as confirmation that Developer's position in the dispute is reasonable. In no event shall TxDOT's obligations pursuant to this Section 6.8.47.5.7.2 require TxDOT: (i) to take a position which it believes to be inconsistent with the CDA Documents, the Facility Management Plan (and component plans thereunder), applicable law or Governmental Approval(s), the requirements of Good Industry Practice, or TxDOT policy, or (ii) to refrain from taking a position concurring with that of a Utility Owner, if TxDOT believes that position to be correct.
6.8.4.3 7.5.7.3 If TxDOT objects in writing to a request for assistance pursuant to Section 6.8.4.17.5.7.1, based on DB ContractorDeveloper’s failure to satisfy one or both more of the conditions to assistance described in Sections 6.8.4.2(a7.5.7.2(a), (b) and (bc), then DB Contractor Developer shall take such action as is appropriate to satisfy the conditions condition(s) and shall then have the right to submit another request for assistance on the same subject matter. If TxDOT objects in writing to a request for assistance pursuant to Section 6.8.4.1 7.5.7.1 based on DB ContractorDeveloper’s failure to satisfy one or both of the conditions to assistance described in Sections 6.8.4.2(c7.5.7.2(d) and (de), then DB Contractor Developer shall take such action as DB Contractor Developer deems advisable during the next 30 ten days to obtain the Utility Owner’s cooperation and shall then have the right to submit another request for assistance on the same subject matter. Notwithstanding the foregoing, no resubmittal will be accepted unless all TxDOT objections have been addressed in accordance with the preceding two sentences. This process shall be followed until DB Contractor Developer succeeds in obtaining the Utility Owner’s cooperation or in otherwise resolving the dispute or until TxDOT determines, based on evidence DB Contractor Developer presents, that the conditions to assistance have been satisfied. DB Contractor Developer shall have the right to submit the question of the reasonableness of TxDOT’s determination through for resolution according to the dispute resolution process described Dispute Resolution Procedures.
7.5.7.4 In certain cases where a Utility Owner is not cooperating with Developer or TxDOT, TxDOT may, in its sole discretion and where applicable Law authorizes TxDOT to take unilateral action, issue a Directive Letter directing Developer to proceed with a Utility Adjustment without an agreement or other written consent by the Utility Owner. If TxDOT directs Developer to perform work pursuant to this Section 197.5.7.4, then Developer, without cost to TxDOT, shall proceed with such work as if Developer has entered into a Utility Agreement providing for Developer to perform such work, and shall perform such work in accordance with the requirements of the CDA Documents otherwise applicable to Developer’s performance of Utility Adjustment Work.
Appears in 2 contracts
Sources: Comprehensive Development Agreement, Comprehensive Development Agreement
Failure of Utility Owners to Cooperate. 6.8.4.1 6.8.4.1. DB Contractor shall use best efforts to obtain the cooperation of each Utility Owner as necessary for the Utility Adjustment. DB Contractor shall notify TxDOT immediately if (a) DB Contractor is unable (or anticipates that it will be unable), after diligent efforts, to reach agreement with abe
6.8.4.2 6.8.4.2. If DB Contractor requests TxDOT’s assistance pursuant to Section 6.8.4.1, DB Contractor shall provide evidence reasonably satisfactory to TxDOT that that: (a) the Utility Adjustment is necessary, (b) the time for completion of the Utility Adjustment in the Project Schedule was, in its inception, a reasonable amount of time for completion of such work, (c) DB Contractor has made diligent efforts to obtain the Utility Owner’s cooperation, and (d) the Utility Owner is not cooperating (the foregoing items (a) through (d) are referred to herein as the “conditions to assistance”). Following TxDOT’s receipt of satisfactory evidence, TxDOT shall take such reasonable steps as may be requested by DB Contractor to obtain the cooperation of the Utility Owner or resolve the dispute; provided, however, that TxDOT shall have no obligation to prosecute eminent domain or other legal proceedings, or to exercise any other remedy available to it under applicable Law or existing contract, unless TxDOT elects to do so in its discretion. If TxDOT holds contractual rights that might be used to enforce the Utility Owner’s obligation to cooperate and TxDOT elects in its discretion not to exercise those rights, then TxDOT shall assign those rights to DB Contractor upon DB Contractor’s request; providedprovided further, however, that such assignment shall be without any representation or warranty as to either the assignability or the enforceability of such rights. DB Contractor shall reimburse TxDOT for TxDOT’s Recoverable Costs in connection with providing such assistance to DB Contractor. Any assistance provided by TxDOT shall not relieve DB Contractor of its sole and primary responsibility for the satisfactory compliance with its obligations and timely completion of all Utility Adjustment Work, except as otherwise expressly set forth in this Section 6.8.4.
6.8.4.3 6.8.4.3. If TxDOT objects in writing to a request for assistance pursuant to Section 6.8.4.1, based on DB Contractor’s failure to satisfy one or both of the conditions to assistance described in Sections 6.8.4.2(aSection 6.8.4.2 (a) and (b), then DB Contractor shall take such action as is appropriate to satisfy the conditions condition(s) and shall then have the right to submit another request for assistance on the same subject matter. If TxDOT objects in writing to a request for assistance pursuant to Section 6.8.4.1 based on DB Contractor’s failure to satisfy one or both of the conditions to assistance described in Sections 6.8.4.2(c6.8.4.2 (c) and (d), then DB Contractor shall take such action as DB Contractor deems advisable during the next 30 days to obtain the Utility Owner’s cooperation and shall then have the right to submit another request for assistance on the same subject matter. Notwithstanding the foregoing, no resubmittal will be accepted unless all TxDOT objections have been addressed in accordance with the preceding two (2) sentences. This process shall be followed until DB Contractor succeeds in obtaining the Utility Owner’s cooperation or in otherwise resolving the dispute or until TxDOT determines, based on evidence DB Contractor presents, that the conditions to assistance have been satisfied. DB Contractor shall have the right to submit the question of the reasonableness of TxDOT’s determination through the dispute resolution process described in Section 19.
Appears in 1 contract
Sources: Design Build Agreement
Failure of Utility Owners to Cooperate. 6.8.4.1 DB Contractor shall use best efforts to obtain the cooperation of each Utility Owner as necessary for the Utility Adjustment. DB Contractor shall notify TxDOT immediately if (a) DB Contractor is unable (or anticipates that it will be unable), after diligent efforts, to reach agreement with a
6.8.4.2 If DB Contractor requests TxDOT▇▇▇▇▇’s assistance pursuant to Section 6.8.4.1, DB Contractor shall provide evidence reasonably satisfactory to TxDOT that (a) the Utility Adjustment is necessary, (b) the time for completion of the Utility Adjustment in the Project Schedule was, in its inception, a reasonable amount of time for completion of such work, (c) DB Contractor has made diligent efforts to obtain the Utility Owner’s cooperation, and (d) the Utility Owner is not cooperating (the foregoing items (a) through (d) are referred to herein as the “conditions to assistance”). Following TxDOT’s receipt of satisfactory evidence, TxDOT shall take such reasonable steps as may be requested by DB Contractor to obtain the cooperation of the Utility Owner or resolve the dispute; provided, however, that TxDOT shall have no obligation to prosecute eminent domain or other legal proceedings, or to exercise any other remedy available to it under applicable Law or existing contract, unless TxDOT elects to do so in its discretion. If TxDOT holds contractual rights that might be used to enforce the Utility Owner’s obligation to cooperate and TxDOT elects in its discretion not to exercise those rights, then TxDOT shall assign those rights to DB Contractor upon DB Contractor’s request; provided, however, that such assignment shall be without any representation or warranty as to either the assignability or the enforceability of such rights. DB Contractor shall reimburse TxDOT for TxDOT’s Recoverable Costs in connection with providing such assistance to DB Contractor. Any assistance provided by TxDOT shall not relieve DB Contractor of its sole and primary responsibility for the satisfactory compliance with its obligations and timely completion of all Utility Adjustment Work, except as otherwise expressly set forth in this Section 6.8.4.
6.8.4.3 If TxDOT objects in writing to a request for assistance pursuant to Section 6.8.4.1, based on DB Contractor’s failure to satisfy one or both of the conditions to assistance described in Sections 6.8.4.2(a) and (b), then DB Contractor shall take such action as is appropriate to satisfy the conditions and shall then have the right to submit another request for assistance on the same subject matter. If TxDOT objects in writing to a request for assistance pursuant to Section 6.8.4.1 based on DB Contractor’s failure to satisfy one or both of the conditions to assistance described in Sections 6.8.4.2(c) and (d), then DB Contractor shall take such action as DB Contractor deems advisable during the next 30 days to obtain the Utility Owner’s cooperation and shall then have the right to submit another request for assistance on the same subject matter. Notwithstanding the foregoing, no resubmittal will be accepted unless all TxDOT objections have been addressed in accordance with the preceding two sentences. This process shall be followed until DB Contractor succeeds in obtaining the Utility Owner’s cooperation or in otherwise resolving the dispute or until TxDOT determines, based on evidence DB Contractor presents, that the conditions to assistance have been satisfied. DB Contractor shall have the right to submit the question of the reasonableness of TxDOT’s determination through the dispute resolution process described in Section 19.
Appears in 1 contract
Sources: Design Build Agreement
Failure of Utility Owners to Cooperate. 6.8.4.1 DB Contractor 7.5.7.1 Developer shall use best diligent efforts to obtain the cooperation of each Utility Owner as necessary for the Utility AdjustmentAdjustments. DB Contractor Developer shall notify TxDOT immediately if (a) DB Contractor Developer is unable (or anticipates that it will be unable), after diligent efforts, to reach agreement with aa Utility Owner on a necessary Utility Agreement within a reasonable time, (b) Developer reasonably believes for any other reason that any Utility Owner would not undertake or permit a Utility Adjustment in a manner consistent with the timely completion of the Facility, (c) Developer becomes aware that any Utility Owner is not cooperating in a timely manner to provide agreed-upon work or approvals, or (d) any other dispute arises between
6.8.4.2 7.5.7.2 If DB Contractor Developer requests TxDOT’s 's assistance pursuant to Section 6.8.4.17.5.7.1, DB Contractor Developer shall provide evidence reasonably satisfactory to TxDOT that (a) the subject Utility Adjustment is necessary, (b) the time for completion of the Utility Adjustment in the Project Facility Schedule was, in its inception, a reasonable amount of time for completion of such work, (c) DB Contractor Developer’s position in the dispute is otherwise reasonable, (d) Developer has made diligent efforts to obtain the Utility Owner’s cooperation, and (de) the Utility Owner is not cooperating (the foregoing items clauses (a) through (de) are referred to herein as the “conditions to assistance”). Following TxDOT’s 's receipt of satisfactory evidence, TxDOT shall take such reasonable steps as may be requested by DB Contractor Developer to obtain the cooperation of the Utility Owner or resolve the dispute; provided, however, that TxDOT shall have no obligation to prosecute eminent domain or other legal proceedings, or to exercise any other remedy available to it under applicable Law or existing contract, unless TxDOT elects to do so in its sole discretion. If TxDOT holds contractual rights that might be used to enforce the Utility Owner’s 's obligation to cooperate and TxDOT elects in its sole discretion not to exercise those rights, then TxDOT shall assign those rights to DB Contractor Developer upon DB Contractor’s Developer's request; provided, however, that such assignment shall be without any representation or warranty as to either the assignability or the enforceability of such rights. DB Contractor Developer shall reimburse TxDOT for TxDOT’s Recoverable Costs in connection with providing such assistance to DB ContractorDeveloper. Any assistance provided by TxDOT provides shall not relieve DB Contractor Developer of its sole and primary responsibility for the satisfactory compliance with its obligations and timely completion of all Utility Adjustment Work, except as otherwise expressly set forth in this Section 6.8.4.
6.8.4.3 If TxDOT objects in writing to a request for assistance pursuant to Section 6.8.4.1, based on DB Contractor’s failure to satisfy one or both of the conditions to assistance described in Sections 6.8.4.2(a) and (b), then DB Contractor shall take such action as is appropriate to satisfy the conditions and shall then have the right to submit another request for assistance on the same subject matterherein. If TxDOT objects in writing to a request the reason for assistance pursuant to Section 6.8.4.1 based on DB Contractor’s failure to satisfy one or both of the conditions to assistance described in Sections 6.8.4.2(c) and (d), then DB Contractor shall take such action as DB Contractor deems advisable during the next 30 days to obtain the Utility Owner’s 's alleged lack of cooperation and shall then have the right is a disagreement with modifications made by Developer to submit another request for assistance on the same subject matter. Notwithstanding the foregoing, no resubmittal will be accepted unless all TxDOT objections have been addressed a standard form Utility Agreement in accordance with Section 7.5.2.2, TxDOT’s approval of the preceding two sentences. This process Deviation shall not be followed until DB Contractor succeeds construed as confirmation that Developer's position in obtaining the Utility Owner’s cooperation or in otherwise resolving the dispute is reasonable. In no event shall TxDOT's obligations pursuant to this Section 7.5.7.2 require TxDOT: (i) to take a position which it believes to be inconsistent with the CDA Documents, applicable law, or until TxDOT determines, based on evidence DB Contractor presents, that the conditions to assistance have been satisfied. DB Contractor shall have the right to submit the question of the reasonableness of TxDOT’s determination through the dispute resolution process described in Section 19.policy,
Appears in 1 contract
Sources: Comprehensive Development Agreement
Failure of Utility Owners to Cooperate. 6.8.4.1 DB Contractor 7.4.9.1 Developer shall use best diligent efforts to obtain the cooperation of each Utility Owner as necessary for the Utility Adjustment. DB Contractor Adjustments.
7.4.9.2 Developer shall notify TxDOT immediately if Authority promptly if:
(a) DB Contractor Developer reasonably believes for any reason that any Utility Owner will not undertake or permit a Utility Adjustment in a manner consistent with the timely completion of the Project;
(b) Developer becomes aware that any Utility Owner is unable not cooperating in a timely manner to comply with the Utility Owner Obligations, including providing agreed-upon work, approvals or permits;
(c) Developer reasonably believes that any Utility Owner is in breach of the relevant Utility MOU, including through:
(i) the non-performance of any Utility Owner Obligation; or
(ii) an unreasonable withholding by a Utility Owner with relevant jurisdiction of the issuance or anticipates renewal of any Governmental Approval necessary for the performance of the Work under the terms of a Utility MOU or otherwise; or
(d) any other dispute arises between Developer and a Utility Owner with respect to the Project (including an unreasonable request by a Utility Owner that, in connection with any Utility Adjustment Work, a Betterment be completed that it will be unablewould materially delay the Project Schedule), after despite ▇▇▇▇▇▇▇▇▇'s diligent effortsefforts to obtain such Utility Owner's cooperation or to otherwise resolve such dispute, (each, a “Notice of Utility Failure to reach agreement Cooperate”).
7.4.9.3 Developer may, in the Notice of Utility Failure to Cooperate, include a request that Authority assist in resolving a dispute with the Utility Owner or in otherwise obtaining the Utility Owner’s timely cooperation.
7.4.9.4 Following issuance of the Notice of Utility Failure to Cooperate, Developer shall:
(a) provide Authority with such information as Authority reasonably requests regarding the Utility Owner's failure to cooperate and the effect of any resulting delay on the Project Schedule; and
6.8.4.2 (b) continue to use diligent efforts to pursue the Utility Owner's cooperation or resolve any disputes with Utility Owners.
7.4.9.5 If DB Contractor Developer requests TxDOT’s Authority's assistance pursuant to Section 6.8.4.1a Notice of Utility Failure to Cooperate, DB Contractor Developer shall provide evidence reasonably satisfactory to TxDOT that Authority that:
(a) the subject Utility Adjustment (where applicable) is necessary, ;
(b) the time for completion of the Utility Adjustment (where applicable) in the Baseline Project Schedule was, in its inceptionas of the Effective Date, a reasonable amount of time for completion of such work, Work;
(c) DB Contractor Developer has made diligent efforts to obtain the Utility Owner’s 's cooperation, as evidenced by documentation of written correspondence between Developer or a Developer Related Party and the Utility Owner; and
(d) the Utility Owner is not cooperating cooperating, (the foregoing items clause (a) through clause (d) are referred to herein as ), collectively, the “conditions Conditions to assistanceAssistance”). Following TxDOT’s .
7.4.9.6 Promptly, but no later than five Business Days after receipt of satisfactory evidenceall requested information under PA Section 7.4.9.5 (Failure of Utility Owners to Cooperate), TxDOT Authority will either accept or reject any such request for assistance from Developer. If Authority rejects, in writing, a request for assistance received under PA Section 7.4.9.3 (Failure of Utility Owners to Cooperate), based on Developer's failure to satisfy one or more of the Conditions to Assistance described in:
(a) PA Sections 7.4.9.5(a) (Failure of Utility Owners to Cooperate) through 7.4.9.5(b) (Failure of Utility Owners to Cooperate), then Developer shall take such action as is appropriate to satisfy the condition(s) and shall then have the right to submit another request for assistance on the same subject matter; or
(b) PA Sections 7.4.9.5(c) (Failure of Utility Owners to Cooperate) and 7.4.9.5(d) (Failure of Utility Owners to Cooperate), then Developer shall take such action as Developer deems advisable during the next ten (10) Business Days in order to obtain the Utility Owner's cooperation and shall then have the right to submit another request for assistance on the same subject matter.
7.4.9.7 Once Developer has satisfied the Conditions to Assistance, Authority shall within twenty (20) Business Days take such reasonable steps as may be requested by DB Contractor Authority reasonably determines necessary to obtain the cooperation of the Utility Owner or resolve the dispute, to include, in accordance with PA Section 7.4.9.10 (Failure of Utility Owners to Cooperate), exercising remedies available to Authority or GDOT under existing contracts; provided, provided however, that TxDOT neither Authority nor GDOT shall have no any obligation to prosecute eminent domain or other legal proceedings, or to exercise any other remedy available to it them under applicable Applicable Law or existing contract, unless TxDOT elects (except to the extent Authority is otherwise required to do so in its discretion. If TxDOT holds contractual rights under this Project Agreement).
7.4.9.8 In no event shall Authority’s obligations under this PA Section 7.4.9 (Failure of Utility Owners to Cooperate) require Authority to:
(a) take a position that might it believes to be used to enforce inconsistent with: (i) this Project Agreement; (ii) the Project Management Plan (and component plans thereunder); (iii) applicable Law; (iv) applicable Governmental Approval(s); (v) a Utility OwnerMOU; or (vi) GDOT or Authority’s obligation to cooperate and TxDOT elects in its discretion not to exercise those rights, then TxDOT shall assign those rights to DB Contractor upon DB Contractor’s request; providedexisting policy (including the GDOT UAM, however, that such assignment shall be without excluding any representation or warranty as policies to either the assignability or extent inconsistent with the enforceability express obligations of such rights. DB Contractor shall reimburse TxDOT for TxDOT’s Recoverable Costs in connection with providing such assistance to DB Contractor. Any assistance provided by TxDOT shall not relieve DB Contractor of its sole and primary responsibility for the satisfactory compliance with its obligations and timely completion of all Utility Adjustment Work, except as otherwise expressly set forth in Authority under this Section 6.8.4.Project Agreement); or
6.8.4.3 If TxDOT objects in writing to a request for assistance pursuant to Section 6.8.4.1, based on DB Contractor’s failure to satisfy one or both of the conditions to assistance described in Sections 6.8.4.2(a) and (b), then DB Contractor shall take such action as is appropriate to satisfy the conditions and shall then have the right to submit another request for assistance on the same subject matter. If TxDOT objects in writing to ) refrain from taking a request for assistance pursuant to Section 6.8.4.1 based on DB Contractor’s failure to satisfy one or both position concurring with that of the conditions to assistance described in Sections 6.8.4.2(c) and (d), then DB Contractor shall take such action as DB Contractor deems advisable during the next 30 days to obtain the a Utility Owner’s cooperation and shall then have the right , if Authority believes that position to submit another request for assistance on the same subject matter. Notwithstanding the foregoing, no resubmittal will be accepted unless all TxDOT objections have been addressed in accordance with the preceding two sentences. This process shall be followed until DB Contractor succeeds in obtaining the Utility Owner’s cooperation or in otherwise resolving the dispute or until TxDOT determines, based on evidence DB Contractor presents, that the conditions to assistance have been satisfied. DB Contractor shall have the right to submit the question of the reasonableness of TxDOT’s determination through the dispute resolution process described in Section 19correct.
Appears in 1 contract
Sources: Design, Build, and Finance Agreement
Failure of Utility Owners to Cooperate. 6.8.4.1 DB Contractor 7.5.7.1 Developer shall use best diligent efforts to obtain the cooperation of each Utility Owner as necessary for the any Utility AdjustmentAdjustment required to be made by Developer under this Section 7.5. DB Contractor Developer shall notify TxDOT immediately if (a) DB Contractor Developer is unable (or anticipates that it will be unable), after diligent efforts, to reach agreement with aa Utility Owner on a necessary Utility Agreement within a reasonable time, (b) Developer reasonably believes for any other reason that any Utility Owner would not undertake or permit a Utility Adjustment in a manner consistent with the timely completion of the Facility, (c) Developer becomes aware that any Utility Owner is not cooperating in a timely manner to provide agreed- upon work or approvals, or (d) any other dispute arises between Developer and a Utility Owner with respect to the Facility, despite ▇▇▇▇▇▇▇▇▇'s diligent efforts to obtain such Utility Owner’s cooperation or otherwise resolve such dispute. Such notice may include a request that TxDOT assist in resolving the dispute or in otherwise obtaining the Utility Owner’s timely cooperation. Developer shall provide TxDOT with such information as TxDOT requests regarding the Utility Owner's failure to cooperate and the effect of any resulting delay on the applicable Facility Schedule. After delivering to TxDOT any notice or request for assistance, Developer shall continue to use diligent efforts to pursue the Utility Owner’s cooperation.
6.8.4.2 7.5.7.2 If DB Contractor Developer requests TxDOT’s 's assistance pursuant to Section 6.8.4.17.5.7.1, DB Contractor Developer shall provide evidence reasonably satisfactory to TxDOT that (a) the subject Utility Adjustment is necessary, (b) the time for completion of the Utility Adjustment in the Project applicable Facility Schedule was, in its inception, a reasonable amount of time for completion of such work, (c) DB Contractor has made diligent efforts to obtain the Utility OwnerDeveloper’s cooperation, and (d) the Utility Owner is not cooperating (the foregoing items (a) through (d) are referred to herein as the “conditions to assistance”). Following TxDOT’s receipt of satisfactory evidence, TxDOT shall take such reasonable steps as may be requested by DB Contractor to obtain the cooperation of the Utility Owner or resolve the dispute; provided, however, that TxDOT shall have no obligation to prosecute eminent domain or other legal proceedings, or to exercise any other remedy available to it under applicable Law or existing contract, unless TxDOT elects to do so position in its discretion. If TxDOT holds contractual rights that might be used to enforce the Utility Owner’s obligation to cooperate and TxDOT elects in its discretion not to exercise those rights, then TxDOT shall assign those rights to DB Contractor upon DB Contractor’s request; provided, however, that such assignment shall be without any representation or warranty as to either the assignability or the enforceability of such rights. DB Contractor shall reimburse TxDOT for TxDOT’s Recoverable Costs in connection with providing such assistance to DB Contractor. Any assistance provided by TxDOT shall not relieve DB Contractor of its sole and primary responsibility for the satisfactory compliance with its obligations and timely completion of all Utility Adjustment Work, except as otherwise expressly set forth in this Section 6.8.4.
6.8.4.3 If TxDOT objects in writing to a request for assistance pursuant to Section 6.8.4.1, based on DB Contractor’s failure to satisfy one or both of the conditions to assistance described in Sections 6.8.4.2(a) and (b), then DB Contractor shall take such action as is appropriate to satisfy the conditions and shall then have the right to submit another request for assistance on the same subject matter. If TxDOT objects in writing to a request for assistance pursuant to Section 6.8.4.1 based on DB Contractor’s failure to satisfy one or both of the conditions to assistance described in Sections 6.8.4.2(c) and (d), then DB Contractor shall take such action as DB Contractor deems advisable during the next 30 days to obtain the Utility Owner’s cooperation and shall then have the right to submit another request for assistance on the same subject matter. Notwithstanding the foregoing, no resubmittal will be accepted unless all TxDOT objections have been addressed in accordance with the preceding two sentences. This process shall be followed until DB Contractor succeeds in obtaining the Utility Owner’s cooperation or in otherwise resolving the dispute or until TxDOT determines, based on evidence DB Contractor presents, that the conditions to assistance have been satisfied. DB Contractor shall have the right to submit the question of the reasonableness of TxDOT’s determination through the dispute resolution process described in Section 19.is otherwise reasonable,
Appears in 1 contract
Sources: Facility Agreement
Failure of Utility Owners to Cooperate. 6.8.4.1 DB Contractor 7.5.7.1 Developer shall use best diligent efforts to obtain the cooperation of each Utility Owner as necessary for the Utility AdjustmentAdjustments. DB Contractor Developer shall notify TxDOT immediately if if
(a) DB Contractor Developer is unable (or anticipates that it will be unable), after diligent efforts, to reach agreement with aa Utility Owner on a necessary Utility Agreement within a reasonable time,
6.8.4.2 (b) Developer reasonably believes for any other reason that any Utility Owner would not undertake or permit a Utility Adjustment in a manner consistent with the timely completion of the Project, (c) Developer becomes aware that any Utility Owner is not cooperating in a timely manner to provide agreed-upon work or approvals, or (d) any other dispute arises between Developer and a Utility Owner with respect to the Project, despite ▇▇▇▇▇▇▇▇▇'s diligent efforts to obtain such Utility Owner’s cooperation or otherwise resolve such dispute. Such notice may include a request that TxDOT assist in resolving the dispute or in otherwise obtaining the Utility Owner’s timely cooperation. Developer shall provide TxDOT with such information as TxDOT requests regarding the Utility Owner's failure to cooperate and the effect of any resulting delay on the Project Schedule. After delivering to TxDOT any notice or request for assistance, Developer shall continue to use diligent efforts to pursue the Utility Owner’s cooperation.
7.5.7.2 If DB Contractor Developer requests TxDOT’s 's assistance pursuant to Section 6.8.4.17.5.7.1, DB Contractor Developer shall provide evidence reasonably satisfactory to TxDOT that (a) the subject Utility Adjustment is necessary, (b) the time for completion of the Utility Adjustment in the Project Schedule was, in its inception, a reasonable amount of time for completion of such work, (c) DB Contractor Developer’s position in the dispute is otherwise reasonable, (d) Developer has made diligent efforts to obtain the Utility Owner’s cooperation, and (de) the Utility Owner is not cooperating (the foregoing items clauses (a) through (de) are referred to herein as the “conditions to assistance”). Following TxDOT’s 's receipt of satisfactory evidence, TxDOT shall take such reasonable steps as may be requested by DB Contractor Developer to obtain the cooperation of the Utility Owner or resolve the dispute; provided, however, that TxDOT shall have no obligation to prosecute eminent domain or other legal proceedings, or to exercise any other remedy available to it under applicable Law or existing contract, unless TxDOT elects to do so in its sole discretion. If TxDOT holds contractual rights that might be used to enforce the Utility Owner’s 's obligation to cooperate and TxDOT elects in its sole discretion not to exercise those rights, then TxDOT shall assign those rights to DB Contractor Developer upon DB Contractor’s Developer's request; provided, however, that such assignment shall be without any representation or warranty as to either the assignability or the enforceability of such rights. DB Contractor Developer shall reimburse TxDOT for TxDOT’s Recoverable Costs in connection with providing such assistance to DB ContractorDeveloper. Any assistance provided by TxDOT provides shall not relieve DB Contractor Developer of its sole and primary responsibility for the satisfactory compliance with its obligations and timely completion of all Utility Adjustment Work, except as otherwise expressly set forth herein. If the reason for the Utility Owner’s alleged lack of cooperation is a disagreement with modifications made by Developer to a standard form Utility Agreement in accordance with Section 7.5.2.2, TxDOT’s approval of the Deviation shall not be construed as confirmation that Developer’s position in the dispute is reasonable. In no event shall TxDOT’s obligations pursuant to this Section 6.8.47.5.7.2 require TxDOT: (i) to take a position which it believes to be inconsistent with the CDA Documents, the Project Management Plan (and component plans thereunder), applicable law or Governmental Approval(s), the requirements of Good Industry Practice, or TxDOT policy, or (ii) to refrain from taking a position concurring with that of a Utility Owner, if TxDOT believes that position to be correct.
6.8.4.3 7.5.7.3 If TxDOT objects in writing to a request for assistance pursuant to Section 6.8.4.17.5.7.1, based on DB ContractorDeveloper’s failure to satisfy one or both more of the conditions to assistance described in Sections 6.8.4.2(a7.5.7.2(a), (b) and (bc), then DB Contractor Developer shall take such action as is appropriate to satisfy the conditions condition(s) and shall then have the right to submit another request for assistance on the same subject matter. If TxDOT objects in writing to a request for assistance pursuant to Section 6.8.4.1 7.5.7.1 based on DB ContractorDeveloper’s failure to satisfy one or both of the conditions to assistance described in Sections 6.8.4.2(c7.5.7.2(d) and (de), then DB Contractor Developer shall take such action as DB Contractor Developer deems advisable during the next 30 ten days to obtain the Utility Owner’s cooperation and shall then have the right to submit another request for assistance on the same subject matter. Notwithstanding the foregoing, no resubmittal will be accepted unless all TxDOT objections have been addressed in accordance with the preceding two sentences. This process shall be followed until DB Contractor Developer succeeds in obtaining the Utility Owner’s cooperation or in otherwise resolving the dispute or until TxDOT determines, based on evidence DB Contractor Developer presents, that the conditions to assistance have been satisfied. DB Contractor Developer shall have the right Texas Department of Transportation IH ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Project 335087_13.DOC - 40 - Request for Proposals, Addendum #11 Volume II, Book 1 – CDA to submit the question of the reasonableness of TxDOT’s determination through for resolution according to the dispute resolution process described Dispute Resolution Procedures.
7.5.7.4 In certain cases where a Utility Owner is not cooperating with Developer or TxDOT, TxDOT may, in its sole discretion and where applicable Law authorizes TxDOT to take unilateral action, issue a Directive Letter directing Developer to proceed with a Utility Adjustment without an agreement or other written consent by the Utility Owner. If TxDOT directs Developer to perform work pursuant to this Section 197.5.7.4, then Developer, without cost to TxDOT, shall proceed with such work as if Developer has entered into a Utility Agreement providing for Developer to perform such work, and shall perform such work in accordance with the requirements of the CDA Documents otherwise applicable to Developer’s performance of Utility Adjustment Work.
Appears in 1 contract
Sources: Comprehensive Development Agreement
Failure of Utility Owners to Cooperate. 6.8.4.1 DB Contractor 7.5.7.1 Developer shall use best diligent efforts to obtain the cooperation of each Utility Owner as necessary for the Utility AdjustmentAdjustments. DB Contractor Developer shall notify TxDOT immediately if (a) DB Contractor Developer is unable (or anticipates that it will be unable), after diligent efforts, to reach agreement with aa Utility Owner on a necessary Utility Agreement within a reasonable time, (b) Developer reasonably believes for any other reason that any Utility Owner would not undertake or permit a Utility Adjustment in a manner consistent with the timely completion of the Facility, (c) Developer becomes aware that any Utility Owner is not cooperating in a timely manner to provide agreed-upon work or approvals, or (d) any other dispute arises between Developer and a Utility Owner with respect to the Facility, despite Developer's diligent efforts to obtain such Utility Owner’s cooperation or otherwise resolve such dispute. Such notice may include a request that TxDOT assist in resolving the dispute or in otherwise obtaining the Utility Owner’s timely cooperation. Developer shall provide TxDOT with such information as TxDOT requests regarding the Utility Owner's failure to cooperate and the effect of any resulting delay on the Facility Schedule. After delivering to TxDOT any notice or request for assistance, Developer shall continue to use diligent efforts to pursue the Utility Owner’s cooperation.
6.8.4.2 7.5.7.2 If DB Contractor Developer requests TxDOT’s 's assistance pursuant to Section 6.8.4.17.5.7.1, DB Contractor Developer shall provide evidence reasonably satisfactory to TxDOT that (a) the subject Utility Adjustment is necessary, (b) the time for completion of the Utility Adjustment in the Project Facility Schedule was, in its inception, a reasonable amount of time for completion of such work, (c) DB Contractor Developer’s position in the dispute is otherwise reasonable, (d) Developer has made diligent efforts to obtain the Utility Owner’s cooperation, and (de) the Utility Owner is not cooperating (the foregoing items clauses (a) through (de) are referred to herein as the “conditions to assistance”). Following TxDOT’s 's receipt of satisfactory evidence, TxDOT shall take such reasonable steps as may be requested by DB Contractor Developer to obtain the cooperation of the Utility Owner or resolve the dispute; provided, however, that TxDOT shall have no obligation to prosecute eminent domain or other legal proceedings, or to exercise any other remedy available to it under applicable Law or existing contract, unless TxDOT elects to do so in its sole discretion. If TxDOT holds contractual rights that might be used to enforce the Utility Owner’s 's obligation to cooperate and TxDOT elects in its sole discretion not to exercise those rights, then TxDOT shall assign those rights to DB Contractor Developer upon DB Contractor’s Developer's request; provided, however, that such assignment shall be without any representation or warranty as to either the assignability or the enforceability of such rights. DB Contractor Developer shall reimburse TxDOT for TxDOT’s Recoverable Costs in connection with providing such assistance to DB ContractorDeveloper. Any assistance provided by TxDOT provides shall not relieve DB Contractor Developer of its sole and primary responsibility for the satisfactory compliance with its obligations and timely completion of all Utility Adjustment Work, except as otherwise expressly set forth herein. If the reason for the Utility Owner's alleged lack of cooperation is a disagreement with modifications made by Developer to a standard form Utility Agreement in accordance with Section 7.5.2.2, TxDOT’s approval of the Deviation shall not be construed as confirmation that Developer's position in the dispute is reasonable. In no event shall TxDOT's obligations pursuant to this Section 6.8.47.5.7.2 require TxDOT: (i) to take a position which it believes to be inconsistent with the CDA Documents, the Facility Management Plan (and component plans thereunder), applicable law or Governmental Approval(s), the requirements of Good Industry Practice, or TxDOT policy, or (ii) to refrain from taking a position concurring with that of a Utility Owner, if TxDOT believes that position to be correct.
6.8.4.3 7.5.7.3 If TxDOT objects in writing to a request for assistance pursuant to Section 6.8.4.17.5.7.1, based on DB ContractorDeveloper’s failure to satisfy one or both more of the conditions to assistance described in Sections 6.8.4.2(a7.5.7.2(a), (b) and (bc), then DB Contractor Developer shall take such action as is appropriate to satisfy the conditions condition(s) and shall then have the right to submit another request for assistance on the same subject matter. If TxDOT objects in writing to a request for assistance pursuant to Section 6.8.4.1 7.5.7.1 based on DB ContractorDeveloper’s failure to satisfy one or both of the conditions to assistance described in Sections 6.8.4.2(c7.5.7.2(d) and (de), then DB Contractor Developer shall take such action as DB Contractor Developer deems advisable during the next 30 ten days to obtain the Utility Owner’s cooperation and shall then have the right to submit another request for assistance on the same subject matter. Notwithstanding the foregoing, no resubmittal will be accepted unless all TxDOT objections have been addressed in accordance with the preceding two sentences. This process shall be followed until DB Contractor Developer succeeds in obtaining the Utility Owner’s cooperation or in otherwise resolving the dispute or until TxDOT determines, based on evidence DB Contractor Developer presents, that the conditions to assistance have been satisfied. DB Contractor Developer shall have the right to submit the question of the reasonableness of TxDOT’s determination through for resolution according to the dispute resolution process described Dispute Resolution Procedures.
7.5.7.4 In certain cases where a Utility Owner is not cooperating with Developer or TxDOT, TxDOT may, in its sole discretion and where applicable Law authorizes TxDOT to take unilateral action, issue a Directive Letter directing Developer to proceed with a Utility Adjustment without an agreement or other written consent by the Utility Owner. If TxDOT directs Developer to perform work pursuant to this Section 197.5.7.4, then Developer, without cost to TxDOT, shall proceed with such work as if Developer has entered into a Utility Agreement providing for Developer to perform such work, and shall perform such work in accordance with the requirements of the CDA Documents otherwise applicable to Developer’s performance of Utility Adjustment Work.
Appears in 1 contract
Sources: Comprehensive Development Agreement
Failure of Utility Owners to Cooperate. 6.8.4.1 DB Contractor 7.5.7.1 Developer shall use best diligent efforts to obtain the cooperation of each Utility Owner as necessary for the Utility AdjustmentAdjustments. DB Contractor Developer shall notify TxDOT immediately if if
(a) DB Contractor Developer is unable (or anticipates that it will be unable), after diligent efforts, to reach agreement with aa Utility Owner on a necessary Utility Agreement within a reasonable time,
6.8.4.2 (b) Developer reasonably believes for any other reason that any Utility Owner would not undertake or permit a Utility Adjustment in a manner consistent with the timely completion of the Project, (c) Developer becomes aware that any Utility Owner is not cooperating in a timely manner to provide agreed-upon work or approvals, or (d) any other dispute arises between Developer and a Utility Owner with respect to the Project, despite ▇▇▇▇▇▇▇▇▇'s diligent efforts to obtain such Utility Owner’s cooperation or otherwise resolve such dispute. Such notice may include a request that TxDOT assist in resolving the dispute or in otherwise obtaining the Utility Owner’s timely cooperation. Developer shall provide TxDOT with such information as TxDOT requests regarding the Utility Owner's failure to cooperate and the effect of any resulting delay on the Project Schedule. After delivering to TxDOT any notice or request for assistance, Developer shall continue to use diligent efforts to pursue the Utility Owner’s cooperation.
7.5.7.2 If DB Contractor Developer requests TxDOT’s 's assistance pursuant to Section 6.8.4.17.5.7.1, DB Contractor Developer shall provide evidence reasonably satisfactory to TxDOT that (a) the subject Utility Adjustment is necessary, (b) the time for completion of the Utility Adjustment in the Project Schedule was, in its inception, a reasonable amount of time for completion of such work, (c) DB Contractor Developer’s position in the dispute is otherwise reasonable, (d) Developer has made diligent efforts to obtain the Utility Owner’s cooperation, and (de) the Utility Owner is not cooperating (the foregoing items clauses (a) through (de) are referred to herein as the “conditions to assistance”). Following TxDOT’s 's receipt of satisfactory evidence, TxDOT shall take such reasonable steps as may be requested by DB Contractor Developer to obtain the cooperation of the Utility Owner or resolve the dispute; provided, however, that TxDOT shall have no obligation to prosecute eminent domain or other legal proceedings, or to exercise any other remedy available to it under applicable Law or existing contract, unless TxDOT elects to do so in its sole discretion. If TxDOT holds contractual rights that might be used to enforce the Utility Owner’s 's obligation to cooperate and TxDOT elects in its sole discretion not to exercise those rights, then TxDOT shall assign those rights to DB Contractor Developer upon DB Contractor’s Developer's request; provided, however, that such assignment shall be without any representation or warranty as to either the assignability or the enforceability of such rights. DB Contractor Developer shall reimburse TxDOT for TxDOT’s Recoverable Costs in connection with providing such assistance to DB ContractorDeveloper. Any assistance provided by TxDOT provides shall not relieve DB Contractor Developer of its sole and primary responsibility for the satisfactory compliance with its obligations and timely completion of all Utility Adjustment Work, except as otherwise expressly set forth herein. If the reason for the Utility Owner’s alleged lack of cooperation is a disagreement with modifications made by Developer to a standard form Utility Agreement in accordance with Section 7.5.2.2, TxDOT’s approval of the Deviation shall not be construed as confirmation that ▇▇▇▇▇▇▇▇▇’s position in the dispute is reasonable. In no event shall TxDOT’s obligations pursuant to this Section 6.8.47.5.7.2 require TxDOT: (i) to take a position which it believes to be inconsistent with the CDA Documents, the Project Management Plan (and component plans thereunder), applicable law or Governmental Approval(s), the requirements of Good Industry Practice, or TxDOT policy, or (ii) to refrain from taking a position concurring with that of a Utility Owner, if TxDOT believes that position to be correct.
6.8.4.3 7.5.7.3 If TxDOT objects in writing to a request for assistance pursuant to Section 6.8.4.17.5.7.1, based on DB ContractorDeveloper’s failure to satisfy one or both more of the conditions to assistance described in Sections 6.8.4.2(a7.5.7.2(a), (b) and (bc), then DB Contractor Developer shall take such action as is appropriate to satisfy the conditions condition(s) and shall then have the right to submit another request for assistance on the same subject matter. If TxDOT objects in writing to a request for assistance pursuant to Section 6.8.4.1 7.5.7.1 based on DB ContractorDeveloper’s failure to satisfy one or both of the conditions to assistance described in Sections 6.8.4.2(c7.5.7.2(d) and (de), then DB Contractor Developer shall take such action as DB Contractor Developer deems advisable during the next 30 ten days to obtain the Utility Owner’s cooperation and shall then have the right to submit another request for assistance on the same subject matter. Notwithstanding the foregoing, no resubmittal will be accepted unless all TxDOT objections have been addressed in accordance with the preceding two sentences. This process shall be followed until DB Contractor Developer succeeds in obtaining the Utility Owner’s cooperation or in otherwise resolving the dispute or until TxDOT determines, based on evidence DB Contractor Developer presents, that the conditions to assistance have been satisfied. DB Contractor Developer shall have the right to submit the question of the reasonableness of TxDOT’s determination through for resolution according to the dispute resolution process described Dispute Resolution Procedures.
7.5.7.4 In certain cases where a Utility Owner is not cooperating with Developer or TxDOT, TxDOT may, in its sole discretion and where applicable Law authorizes TxDOT to take unilateral action, issue a Directive Letter directing Developer to proceed with a Utility Adjustment without an agreement or other written consent by the Utility Owner. If TxDOT directs Developer to perform work pursuant to this Section 197.5.7.4, then Developer, without cost to TxDOT, shall proceed with such work as if Developer has entered into a Utility Agreement providing for Developer to perform such work, and shall perform such work in accordance with the requirements of the CDA Documents otherwise applicable to Developer’s performance of Utility Adjustment Work.
Appears in 1 contract
Sources: Comprehensive Development Agreement