Common use of Failure of Utility Owners to Cooperate Clause in Contracts

Failure of Utility Owners to Cooperate. (i) The Development Entity shall use diligent efforts to obtain the cooperation of each Utility Owner as necessary for Utility Relocations to be performed in connection with the Work. The Development Entity shall notify the Department promptly if the Development Entity reasonably believes that: (A) any Utility Owner would not undertake or permit a Utility Relocation in a manner consistent with the timely achievement of CNG Readiness in respect of any Project Site or in accordance with Applicable Law, any Governmental Approval or the Project Documents; (B) any Utility Owner is not cooperating in a timely manner to provide agreed-upon work or approvals; or (C) any other dispute will arise between the Development Entity and a Utility Owner with respect to the Project, despite the Development Entity’s diligent efforts to obtain such Utility Owner’s cooperation or otherwise resolve such dispute. Such Notice may include a request that the Department assist in resolving the dispute or in otherwise obtaining the Utility Owner’s timely cooperation. The Development Entity shall provide the Department with such information as the Department requests regarding the Utility Owner’s failure to cooperate and the effect of any resulting delay on the Development Entity’s Project Working Schedule. After delivering to the Department any Notice or request for assistance, the Development Entity shall continue to use diligent efforts to pursue the Utility Owner’s cooperation. (ii) If the Development Entity requests the Department’s assistance pursuant to Section 5.2(e)(i), then the following provisions shall apply: (A) the Development Entity shall provide evidence reasonably satisfactory to the Department that: I. the subject Utility Relocation is necessary; II. the time for completion of the Utility Relocation in the Project Working Schedule was, at its inception, a reasonable amount of time for completion of such work; III. the Development Entity has made diligent efforts to obtain the Utility Owner’s cooperation; and IV. the Utility Owner is not cooperating or is not able to undertake or permit a Utility Relocation in a manner consistent with the timely achievement of CNG Readiness in respect of any Project Site (the foregoing clauses I through IV are referred to herein as the conditions to assistance); (B) following the Department’s receipt of satisfactory evidence, the Department shall take such reasonable steps as the Development Entity may request to obtain the cooperation of the Utility Owner or resolve the dispute; provided, that the Department 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 the Department elects to do so in its sole discretion; and (C) any assistance the Department provides shall not relieve the Development Entity of its sole responsibility for satisfactory compliance with its obligations and timely completion of all Utility Relocation Work, except as otherwise expressly set out herein. (iii) If the Department objects in writing to a request for assistance pursuant to Section 5.2(e)(ii), based on the Development Entity’s failure to satisfy one or both of the conditions to assistance described in clauses I and II of Section 5.2(e)(ii)(A), then the Development Entity 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. (iv) If the Department objects in writing to a request for assistance pursuant to Section 5.2(e)(ii) based on the Development Entity’s failure to satisfy one or both of the conditions to assistance described in clauses III and IV of Section 5.2(e)(ii)(A), then the Development Entity shall take such action as the Development Entity deems advisable during the next ten (10) 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. (v) Notwithstanding the foregoing, no resubmittal will be accepted unless all the Department objections have been addressed in accordance with the preceding clauses (iii) and (iv). This process shall be followed until the Development Entity succeeds in obtaining the Utility Owner’s cooperation or in otherwise resolving the dispute or until the Department determines, based on evidence the Development Entity presents, that the conditions to assistance have been satisfied. The Development Entity shall have the right to submit the question of the reasonableness of the Department’s determination for resolution according to the Dispute Resolution Procedures.

Failure of Utility Owners to Cooperate. (i) The Development Entity 6.7.1 Design-Build Contractor shall use make diligent efforts to obtain the cooperation of each Utility Owner as necessary for Utility Relocations to be performed in connection with the WorkProject. The Development Entity Design-Build Contractor shall notify the Department promptly IFA immediately if the Development Entity (a) Design-Build Contractor is unable (or anticipates that it will be unable), after diligent efforts, to reach agreement with a Utility Owner on a necessary Utility Agreement within a reasonable time, (b) Design-Build Contractor reasonably believes that: (A) for any other reason that any Utility Owner would not undertake or permit a Utility Relocation Adjustment in a manner consistent with the timely achievement completion of CNG Readiness in respect of any the Project Site or in accordance with Applicable LawGovernmental Rules, any the Governmental Approval Approvals or the Project PPA Documents; , (Bc) Design-Build Contractor becomes aware that any Utility Owner is not cooperating in a timely manner to provide agreed-upon work or approvals; or , or (Cd) any other dispute will arise arises between the Development Entity Design-Build Contractor and a Utility Owner with respect to the Project, despite the Development EntityDesign-Build Contractor’s diligent efforts to obtain such Utility Owner’s cooperation or otherwise resolve such dispute. Such Notice notice may include a request that the Department IFA assist in resolving the dispute or in otherwise obtaining the Utility Owner’s timely cooperation. The Development Entity Design-Build Contractor shall provide the Department IFA with such information as the Department IFA requests regarding the Utility Owner’s failure to cooperate and the effect of any resulting delay on the Development Entity’s Project Working Schedule. After delivering to the Department IFA any Notice notice or request for assistance, the Development Entity Design-Build Contractor shall continue to use diligent efforts to pursue the Utility Owner’s cooperation. (ii) 6.7.2 If the Development Entity Design-Build Contractor requests the DepartmentIFA’s assistance pursuant to Section 5.2(e)(i)6.7.1, then the following provisions shall apply: (Aa) the Development Entity Design-Build Contractor shall provide evidence reasonably satisfactory to the Department that: I. IFA that (i) the subject Utility Relocation Adjustment is necessary; II. , (ii) the time for completion of the Utility Relocation Adjustment in the Project Working Schedule was, at in its inception, a reasonable amount of time for completion of such work; III. the Development Entity , (iii) Design-Build Contractor has made diligent efforts to obtain the Utility Owner’s cooperation; and IV. , and (iv) the Utility Owner is not cooperating or is not able to undertake or permit a Utility Relocation in a manner consistent with the timely achievement of CNG Readiness in respect of any Project Site (the foregoing clauses I (a)(i) through IV (iv) are referred to herein as the conditions “Conditions to assistanceAssistance”);. (Bb) following the DepartmentFollowing IFA’s receipt of satisfactory evidence, the Department IFA shall take such reasonable steps as the Development Entity Design-Build Contractor may request to obtain the cooperation of the Utility Owner or resolve the dispute; provided, that the Department however, IFA shall have no obligation to prosecute eminent domain or other legal proceedings, or to exercise any other legal remedy available to it under Applicable Law applicable Governmental Rules or existing contract contract, unless the Department IFA elects to do so in its sole discretion; and. IFA may, at its sole discretion, participate in the resolution of any dispute between Design-Build Contractor and a Utility Owner, whether or not requested to do so by Design-Build Contractor. (Cc) any If IFA holds contractual rights that might be used to enforce the Utility Owner’s obligation to cooperate and IFA shall have the right not to exercise those rights. IFA’s decision not to exercise those rights shall be in its sole discretion. 6.7.3 Any assistance the Department provides provided by IFA shall not relieve the Development Entity Design-Build Contractor of its sole and primary responsibility for the satisfactory compliance with its obligations under the PPA Documents and its obligations with respect to timely completion of all necessary Utility Relocation Work, except as otherwise expressly set out hereinAdjustments. (iii) If the Department objects in writing to a request for assistance pursuant to Section 5.2(e)(ii), based on the Development Entity’s failure to satisfy one or both of the conditions to assistance described in clauses I and II of Section 5.2(e)(ii)(A), then the Development Entity 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. (iv) If the Department objects in writing to a request for assistance pursuant to Section 5.2(e)(ii) based on the Development Entity’s failure to satisfy one or both of the conditions to assistance described in clauses III and IV of Section 5.2(e)(ii)(A), then the Development Entity shall take such action as the Development Entity deems advisable during the next ten (10) 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. (v) Notwithstanding the foregoing, no resubmittal will be accepted unless all the Department objections have been addressed in accordance with the preceding clauses (iii) and (iv). This process shall be followed until the Development Entity succeeds in obtaining the Utility Owner’s cooperation or in otherwise resolving the dispute or until the Department determines, based on evidence the Development Entity presents, that the conditions to assistance have been satisfied. The Development Entity shall have the right to submit the question of the reasonableness of the Department’s determination for resolution according to the Dispute Resolution Procedures.

Failure of Utility Owners to Cooperate. (ia) The Development Entity Developer shall use diligent efforts to obtain the cooperation of each Utility Owner as necessary for the Utility Relocations Adjustments to be performed in connection with the Work. The Development Entity Developer shall notify the Department District promptly if the Development Entity Developer reasonably believes that: (Ai) any Utility Owner would not undertake or permit a Utility Relocation Adjustment in a manner consistent with the timely achievement completion of CNG Readiness in respect of any Project Site the Work, or in accordance with Applicable Law, any Governmental Approval or the Project Documents; (Bii) any Utility Owner is not cooperating in a timely manner to provide agreed-upon work or approvals; or (Ciii) any other dispute will arise between the Development Entity Developer and a Utility Owner with respect to the Project, despite the Development EntityDeveloper’s diligent efforts to obtain such Utility Owner’s cooperation or otherwise resolve such disputedispute (including a dispute relating to a Betterment). Such Notice The notice described in this Section 12.3(a) (Failure of Utility Owners to Cooperate) may include a request that the Department District assist in resolving the dispute or in otherwise obtaining the Utility Owner’s timely cooperation. The Development Entity Developer shall provide the Department District with such information as the Department District requests regarding the Utility Owner’s failure to cooperate and the effect of any resulting delay on the Development Entity’s Project Working Baseline Schedule. After delivering to the Department District any Notice notice or request for assistance, the Development Entity Developer shall continue to use diligent efforts to pursue the Utility Owner’s cooperation. (iib) If the Development Entity Developer requests the DepartmentDistrict’s assistance pursuant to Section 5.2(e)(i12.3(a) (Failure of Utility Owners to Cooperate), then the following provisions shall apply: (Ai) the Development Entity Developer shall provide evidence reasonably satisfactory to the Department District that: I. (A) the subject Utility Relocation Adjustment is necessary; II. (B) the time for completion of the Utility Relocation Adjustment in the Project Working Baseline Schedule was, at its inception, a reasonable amount of time for completion of such work; III. (C) the Development Entity Developer has made diligent efforts to obtain the Utility Owner’s cooperation; and IV. (D) the Utility Owner is not cooperating or is not able to undertake or permit a Utility Relocation in a manner consistent with the timely achievement of CNG Readiness in respect of any Project Site (the foregoing clauses I (A) through IV are referred (D), the “Conditions to herein as the conditions to assistanceAssistance with Utility Owner”); (Bii) following the DepartmentDistrict’s receipt of satisfactory evidence, the Department District shall take such reasonable steps as the Development Entity Developer may request to obtain the cooperation of the Utility Owner or resolve the dispute; provided, that however, the Department District 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 the Department District elects to do so in its sole absolute discretion; and (Ciii) any assistance the Department District provides shall not relieve the Development Entity Developer of its sole responsibility for satisfactory compliance with its obligations and timely completion of all Utility Relocation WorkAdjustments, except as otherwise expressly set out hereinin this Agreement. (iiic) If the Department District objects in writing to a request for assistance pursuant to Section 5.2(e)(ii12.3(a) (Failure of Utility Owners to Cooperate), based on the Development EntityDeveloper’s failure to satisfy one or both of the conditions Conditions to assistance Assistance described in clauses I clause (A) and II clause (B) of Section 5.2(e)(ii)(A12.3(b)(i) (Failure of Utility Owners to Cooperate), then the Development Entity 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. (ivd) If the Department District objects in writing to a request for assistance pursuant to Section 5.2(e)(ii12.3(a) (Failure of Utility Owners to Cooperate) based on the Development EntityDeveloper’s failure to satisfy one or both of the conditions Conditions to assistance Assistance described in clauses III clause (C) and IV clause (D) of Section 5.2(e)(ii)(A12.3(b)(i) (Failure of Utility Owners to Cooperate), then the Development Entity Developer shall take such action as the Development Entity Developer deems advisable during the next ten (10) 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. (ve) Notwithstanding the foregoing, no resubmittal will be accepted unless all the Department District objections have been addressed in accordance with the preceding clauses (iiic) and (ivd). This process shall be followed until the Development Entity Developer succeeds in obtaining the Utility Owner’s cooperation or in otherwise resolving the dispute or until the Department District determines, based on evidence the Development Entity Developer presents, that the conditions Conditions to assistance Assistance have been satisfied. The Development Entity Developer shall have the right to submit the question of the reasonableness of the DepartmentDistrict’s determination for resolution according to the Dispute Resolution Procedures.

Failure of Utility Owners to Cooperate. (i) The Development Entity shall use diligent efforts to obtain the cooperation of each Utility Owner as necessary for Utility Relocations to be performed in connection with the Work. The Development Entity shall notify the Department promptly if the Development Entity reasonably believes that: (A) any Utility Owner would not undertake or permit a Utility Relocation in a manner consistent with the timely achievement of CNG Readiness in respect completion of any Project Site Replacement Bridge or in accordance with Applicable Law, any Governmental Approval or the Project Documents; (B) any Utility Owner is not cooperating in a timely manner to provide agreed-upon work or approvals; or (C) any other dispute will arise between the Development Entity and a Utility Owner with respect to the Project, despite the Development Entity’s diligent efforts to obtain such Utility Owner’s cooperation or otherwise resolve such disputedispute (including a dispute relating to a Utility Enhancement). Such Notice may include a request that the Department assist in resolving the dispute or in otherwise obtaining the Utility Owner’s timely cooperation. The Development Entity shall provide the Department with such information as the Department requests regarding the Utility Owner’s failure to cooperate and the effect of any resulting delay on the Development Entity’s Project Working Schedule. After delivering to the Department any Notice or request for assistance, the Development Entity shall continue to use diligent efforts to pursue the Utility Owner’s cooperation. (ii) If the Development Entity requests the Department’s assistance pursuant to Section 5.2(e)(i), then the following provisions shall apply: (A) the Development Entity shall provide evidence reasonably satisfactory to the Department that: I. the subject Utility Relocation is necessary; II. the time for completion of the Utility Relocation in the Project Working Schedule was, at its inception, a reasonable amount of time for completion of such work; III. the Development Entity has made diligent efforts to obtain the Utility Owner’s cooperation; and IV. the Utility Owner is not cooperating or is not able to undertake or permit a Utility Relocation in a manner consistent with the timely achievement of CNG Readiness in respect of any Project Site (the foregoing clauses I through IV are referred to herein as the conditions to assistance); (B) following the Department’s receipt of satisfactory evidence, the Department shall take such reasonable steps as the Development Entity may request to obtain the cooperation of the Utility Owner or resolve the dispute; provided, that however, the Department 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 the Department elects to do so in its sole discretion; and (C) any assistance the Department provides shall not relieve the Development Entity of its sole responsibility for satisfactory compliance with its obligations and timely completion of all Utility Relocation Work, except as otherwise expressly set out herein. (iii) If the Department objects in writing to a request for assistance pursuant to Section 5.2(e)(ii), based on the Development Entity’s failure to satisfy one or both of the conditions to assistance described in clauses I and II of Section 5.2(e)(ii)(A), then the Development Entity 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. (iv) If the Department objects in writing to a request for assistance pursuant to Section 5.2(e)(ii) based on the Development Entity’s failure to satisfy one or both of the conditions to assistance described in clauses III and IV of Section 5.2(e)(ii)(A), then the Development Entity shall take such action as the Development Entity deems advisable during the next ten (10) 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. (v) Notwithstanding the foregoing, no resubmittal will be accepted unless all the Department objections have been addressed in accordance with the preceding clauses (iii) and (iv). This process shall be followed until the Development Entity succeeds in obtaining the Utility Owner’s cooperation or in otherwise resolving the dispute or until the Department determines, based on evidence the Development Entity presents, that the conditions to assistance have been satisfied. The Development Entity shall have the right to submit the question of the reasonableness of the Department’s determination for resolution according to the Dispute Resolution Procedures.

Failure of Utility Owners to Cooperate. (i) The Development Entity ‌ 6.7.1 Design-Build Contractor shall use make diligent efforts to obtain the cooperation of each Utility Owner as necessary for Utility Relocations to be performed in connection with the WorkProject. The Development Entity Design-Build Contractor shall notify the Department promptly IFA immediately if the Development Entity (a) Design-Build Contractor is unable (or anticipates that it will be unable), after diligent efforts, to reach agreement with a Utility Owner on a necessary Utility Agreement within a reasonable time, (b) Design-Build Contractor reasonably believes that: (A) for any other reason that any Utility Owner would not undertake or permit a Utility Relocation Adjustment in a manner consistent with the timely achievement completion of CNG Readiness in respect of any the Project Site or in accordance with Applicable LawGovernmental Rules, any the Governmental Approval Approvals or the Project PPA Documents; , (Bc) Design-Build Contractor becomes aware that any Utility Owner is not cooperating in a timely manner to provide agreed-upon work or approvals; or , or (Cd) any other dispute will arise arises between the Development Entity Design-Build Contractor and a Utility Owner with respect to the Project, despite the Development EntityDesign-Build Contractor’s diligent efforts to obtain such Utility Owner’s cooperation or otherwise resolve such dispute. Such Notice notice may include a request that the Department IFA assist in resolving the dispute or in otherwise obtaining the Utility Owner’s timely cooperation. The Development Entity Design-Build Contractor shall provide the Department IFA with such information as the Department IFA requests regarding the Utility Owner’s failure to cooperate and the effect of any resulting delay on the Development Entity’s Project Working Schedule. After delivering to the Department IFA any Notice notice or request for assistance, the Development Entity Design-Build Contractor shall continue to use diligent efforts to pursue the Utility Owner’s cooperation. (ii) 6.7.2 If the Development Entity Design-Build Contractor requests the DepartmentIFA’s assistance pursuant to Section 5.2(e)(i)6.7.1, then the following provisions shall apply: (Aa) the Development Entity Design-Build Contractor shall provide evidence reasonably satisfactory to the Department that: I. IFA that (i) the subject Utility Relocation Adjustment is necessary; II. , (ii) the time for completion of the Utility Relocation Adjustment in the Project Working Schedule was, at in its inception, a reasonable amount of time for completion of such work; III. the Development Entity , (iii) Design-Build Contractor has made diligent efforts to obtain the Utility Owner’s cooperation; and IV. , and (iv) the Utility Owner is not cooperating or is not able to undertake or permit a Utility Relocation in a manner consistent with the timely achievement of CNG Readiness in respect of any Project Site (the foregoing clauses I (a)(i) through IV (iv) are referred to herein as the conditions “Conditions to assistanceAssistance”);. (Bb) following the DepartmentFollowing IFA’s receipt of satisfactory evidence, the Department IFA shall take such reasonable steps as the Development Entity Design-Build Contractor may request to obtain the cooperation of the Utility Owner or resolve the dispute; provided, that the Department however, IFA shall have no obligation to prosecute eminent domain or other legal proceedings, or to exercise any other legal remedy available to it under Applicable Law applicable Governmental Rules or existing contract contract, unless the Department IFA elects to do so in its sole discretion; and. IFA may, at its sole discretion, participate in the resolution of any dispute between Design-Build Contractor and a Utility Owner, whether or not requested to do so by Design-Build Contractor. (Cc) any If IFA holds contractual rights that might be used to enforce the Utility Owner’s obligation to cooperate and IFA shall have the right not to exercise those rights. IFA’s decision not to exercise those rights shall be in its sole discretion. 6.7.3 Any assistance the Department provides provided by IFA shall not relieve the Development Entity Design-Build Contractor of its sole and primary responsibility for the satisfactory compliance with its obligations under the PPA Documents and its obligations with respect to timely completion of all necessary Utility Relocation Work, except as otherwise expressly set out hereinAdjustments. (iii) If the Department objects in writing to a request for assistance pursuant to Section 5.2(e)(ii), based on the Development Entity’s failure to satisfy one or both of the conditions to assistance described in clauses I and II of Section 5.2(e)(ii)(A), then the Development Entity 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. (iv) If the Department objects in writing to a request for assistance pursuant to Section 5.2(e)(ii) based on the Development Entity’s failure to satisfy one or both of the conditions to assistance described in clauses III and IV of Section 5.2(e)(ii)(A), then the Development Entity shall take such action as the Development Entity deems advisable during the next ten (10) 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. (v) Notwithstanding the foregoing, no resubmittal will be accepted unless all the Department objections have been addressed in accordance with the preceding clauses (iii) and (iv). This process shall be followed until the Development Entity succeeds in obtaining the Utility Owner’s cooperation or in otherwise resolving the dispute or until the Department determines, based on evidence the Development Entity presents, that the conditions to assistance have been satisfied. The Development Entity shall have the right to submit the question of the reasonableness of the Department’s determination for resolution according to the Dispute Resolution Procedures.