Common use of Additional Restrictions on Change Orders for Utility Clause in Contracts

Additional Restrictions on Change Orders for Utility. Adjustments (a) Developer shall provide documentation satisfactory to TxDOT showing that the required analysis was performed and an appropriate determination made regarding the need for the Utility Adjustment, and shall also bear the burden of proving that the amount of any additional costs or time incurred by Developer are both necessary and reasonable. (b) As part of the D&C Work, Developer is responsible for causing all Utility Adjustment Work and Incidental Utility Adjustment Work to occur, for reimbursing the Utility Owners for their costs of performing or furnishing Utility Adjustment Work and Incidental Utility Adjustment Work, and subject to Section 3.13.5(b), for scheduling all Utility Adjustment Work and Incidental Utility Adjustment Work (whether performed by Developer or the affected Utility Owner) so as to meet the Completion Deadlines herein. Accordingly, if a Utility Owner performs or furnishes Utility Adjustment Work or Incidental Utility Adjustment Work that was initially anticipated to be performed or furnished by Developer, or if Developer performs or furnishes Utility Adjustment Work or Incidental Utility Adjustment Work that was initially anticipated to be performed or furnished by the Utility Owner, there shall be no resulting time extension and no resulting change in the Price. The foregoing shall not affect TxDOT’s right to any credit that may be owed under Section 12. (c) Developer shall not be entitled to a Change Order for any costs or delays which it may incur that are attributable to: (i) any errors, omissions, inaccuracies, inconsistencies or other defects in designs furnished by any Utility Owner, including any failure of such designs to comply with the requirements of Section 6.3 of the Technical Provisions, or (ii) any defect in construction performed by any Utility Owner or other failure of such construction to comply with the requirements of Section 6.4 of the Technical Provisions. (d) Developer shall not be entitled to a Change Order for any costs or delays resulting from the performance of Incidental Utility Adjustment Work by Developer or any Utility Owner (including with respect to New Utilities for which Developer is otherwise entitled to a Change Order under Section 3.13.1). (e) Any Change Order increasing the Price pursuant to this Section 3.13 shall include only the incremental costs arising from the circumstances giving rise to such Change Order. (f) Developer shall not be entitled to any increase in the Price for any costs of coordinating with Utility Owners (including with respect to New Utilities for which Developer is otherwise entitled to a Change Order under Section 3.13.1). (g) Any information with respect to Utilities provided in the Reference Information Documents is for Developer’s reference only, has not been verified, and shall not be relied upon by Developer. Without limiting the generality of the foregoing, Developer acknowledges that such information does not identify most of the Service Lines that may be impacted by the Project and that there may be other facilities impacted by the Project that are not identified in such information. Developer shall verify all information with respect to Utilities included in the Reference Information Documents and shall perform its own investigations as provided in Section 6 of the Technical Provisions. Accordingly, except as provided in Section 3.13.1 of this Agreement, there shall be no changes in the Price and no time extensions on account of any inaccuracies in the Reference Information Documents with respect to any Utilities. Except as provided in Section 3.13.1 of this Agreement, Developer shall not be entitled to any increase in the Price or time extension as a result of any of the following. (i) any increase in the extent or change in the character of the Utility Adjustment Work necessary to Adjust any Utility from that anticipated by Developer; (ii) any difference in the cost to Adjust a Utility from that anticipated by Developer; (iii) any inaccuracy in the information included in the Reference Information Documents as to the existence, location, ownership, type, or any other characteristic of any Utility; (iv) any inaccuracy in the Reference Information Documents as to whether any Utility is located within privately owned property or public right of way; or (v) any inaccuracy in the Reference Information Documents as to the existence or nature of any rights or interest relating to the occupancy of any real property by any Utility. (h) Inasmuch as Developer is both furnishing the design of and constructing the Project, Developer may have opportunities to reduce the costs of certain portions of the Work, which may increase the costs of certain other portions of the Work. In considering each such opportunity, Developer shall consider the impact of design changes on Utility Adjustments to the extent practical. Accordingly, except as otherwise provided in Section 12 with respect to TxDOT-Directed Changes, the following provisions shall apply with respect to any increase or decrease in the cost of the Work or delay associated with design changes during the course of the Project which either reduce the nature or extent of or eliminate any Utility Adjustment, or result in unanticipated Utility Adjustments or an increase in the nature or extent of anticipated Utility Adjustments: (i) Developer shall not be entitled to extension of any Completion Deadline on account of delays resulting from any such design changes. (ii) Developer shall not be entitled to any increase in the Price for any such additional costs which Developer incurs (including both additional costs of Utility Adjustment Work and the costs of any additional Work on other aspects of the Project undertaken in order to avoid or minimize Utility Adjustments). (iii) If TxDOT incurs any such additional costs, then Developer shall reimburse TxDOT for such costs within ten days after receipt of TxDOT’s invoice therefor, or in TxDOT’s discretion, TxDOT may deduct the amount of reimbursement due from any payment due to Developer under this Agreement. (iv) TxDOT shall not be entitled to a credit on account of reductions in the cost of the Work due to any such avoided or minimized Utility Adjustments. (i) If Developer elects to make payments to Utility Owners or to undertake any other efforts which are not required by the terms of the Contract Documents, Developer shall not be entitled to a Change Order in connection therewith. Developer shall promptly notify TxDOT of the terms of any such arrangements. (j) Except as specified in this Section 3.13 or in Section 12, Developer shall not be entitled to any Change Order with respect to any Utility Adjustments, including any act or omission of any Utility Owner which may result in a delay to the Project Schedule or in Developer’s incurring costs not included in the Price.

Additional Restrictions on Change Orders for Utility. Adjustments (a) Developer shall provide documentation satisfactory to TxDOT showing that the required analysis was performed and an appropriate determination made regarding the need for the Utility Adjustment, and shall also bear the burden of proving that the amount of any additional costs or time incurred by Developer are both necessary and reasonable. (b) As part of the D&C Work, Developer is responsible for causing all Utility Adjustment Work and Incidental Utility Adjustment Work to occur, for reimbursing the Utility Owners for their costs of performing or furnishing Utility Adjustment Work and Incidental Utility Adjustment Work, and subject to Section 3.13.5(b), for scheduling all Utility Adjustment Work and Incidental Utility Adjustment Work (whether performed by Developer or the affected Utility Owner) so as to meet the Completion Deadlines herein. Accordingly, if a Utility Owner performs or furnishes Utility Adjustment Work or Incidental Utility Adjustment Work that was initially anticipated to be performed or furnished by Developer, or if Developer performs or furnishes Utility Adjustment Work or Incidental Utility Adjustment Work that was initially anticipated to be performed or furnished by the Utility Owner, there shall be no resulting time extension and no resulting change in the Price. The foregoing shall not affect TxDOT’s right to any credit that may be owed under Section 12. (c) Developer shall not be entitled to a Change Order for any costs or delays which it may incur that are attributable to: (i) any errors, omissions, inaccuracies, inconsistencies or other defects in designs furnished by any Utility Owner, including any failure of such designs to comply with the requirements of Section 6.3 of the Technical Provisions, or (ii) any defect in construction performed by any Utility Owner or other failure of such construction to comply with the requirements of Section 6.4 of the Technical Provisions. (d) Developer shall not be entitled to a Change Order for any costs or delays resulting from the performance of Incidental Utility Adjustment Work by Developer or any Utility Owner (including with respect to New Utilities for which Developer is otherwise entitled to a Change Order under Section 3.13.1). (e) Any Change Order increasing the Price pursuant to this Section 3.13 shall include only the incremental costs arising from the circumstances giving rise to such Change Order. (f) Developer shall not be entitled to any increase in the Price for any costs of coordinating with Utility Owners (including with respect to New Utilities for which Developer is otherwise entitled to a Change Order under Section 3.13.1). (g) Any information with respect to Utilities provided in the Reference Information Documents is for Developer’s reference only, has not been verified, and shall not be relied upon by Developer. Without limiting the generality of the foregoing, Developer acknowledges that such information does not identify most of the Service Lines that may be impacted by the Project and that there may be other facilities impacted by the Project that are not identified in such information. Developer shall verify all information with respect to Utilities included in the Reference Information Documents and shall perform its own investigations as provided in Section 6 of the Technical Provisions. Accordingly, except as provided in Section 3.13.1 of this Agreement, there shall be no changes in the Price and no time extensions on account of any inaccuracies in the Reference Information Documents with respect to any Utilities. Except as provided in Section 3.13.1 of this Agreement, Developer shall not be entitled to any increase in the Price or time extension as a result of any of the following. (i) any increase in the extent or change in the character of the Utility Adjustment Work necessary to Adjust any Utility from that anticipated by Developer; (ii) by Developer; any difference in the cost to Adjust a Utility from that anticipated by Developer;anticipated (iii) Information Documents any inaccuracy in the information included in the Reference Information Documents as to the existence, location, ownership, type, or any other characteristic of any Utility; (iv) any inaccuracy in the Reference Information Documents as to whether any Utility is located within privately owned property or public right of way; or (v) any inaccuracy in the Reference Information Documents as to the existence or nature of any rights or interest relating to the occupancy of any real property by any Utility. (h) Inasmuch as Developer is both furnishing the design of and constructing the Project, Developer may have opportunities to reduce the costs of certain portions of the Work, which may increase the costs of certain other portions of the Work. In considering each such opportunity, Developer shall consider the impact of design changes on Utility Adjustments to the extent practical. Accordingly, except as otherwise provided in Section 12 with respect to TxDOT-Directed Changes, the following provisions shall apply with respect to any increase or decrease in the cost of the Work or delay associated with design changes during the course of the Project which either reduce the nature or extent of or eliminate any Utility Adjustment, or result in unanticipated Utility Adjustments or an increase in the nature or extent of anticipated Utility Adjustments: (i) Developer shall not be entitled to extension of any Completion Deadline on account of delays resulting from any such design changes. (ii) Developer shall not be entitled to any increase in the Price for any such additional costs which Developer incurs (including both additional costs of Utility Adjustment Work and the costs of any additional Work on other aspects of the Project undertaken in order to avoid or minimize Utility Adjustments). (iii) If TxDOT incurs any such additional costs, then Developer shall reimburse TxDOT for such costs within ten days after receipt of TxDOT’s invoice therefor, or in TxDOT’s discretion, TxDOT may deduct the amount of reimbursement due from any payment due to Developer under this Agreement. (iv) TxDOT shall not be entitled to a credit on account of reductions in the cost of the Work due to any such avoided or minimized Utility Adjustments. (i) If Developer elects to make payments to Utility Owners or to undertake any other efforts which are not required by the terms of the Contract Documents, Developer shall not be entitled to a Change Order in connection therewith. Developer shall promptly notify TxDOT of the terms of any such arrangements. (j) Except as specified in this Section 3.13 or in Section 12, Developer shall not be entitled to any Change Order with respect to any Utility Adjustments, including any act or omission of any Utility Owner which may result in a delay to the Project Schedule or in Developer’s incurring costs not included in the Price.