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

Failure of Utility Owners to Cooperate. 7.5.7.1 Developer shall use diligent efforts to obtain the cooperation of each Utility Owner as necessary for Utility Adjustments. Developer shall notify TxDOT immediately if (a) Developer is unable (or anticipates that it will be unable), after diligent efforts, to reach 7.5.7.2 If Developer requests TxDOT's assistance pursuant to Section 7.5.7.1, 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 Facility Schedule was, in its inception, a reasonable amount of time for completion of such work, (c) Developer’s position in the dispute is otherwise reasonable, (d) Developer has made diligent efforts to obtain the Utility Owner’s cooperation, and (e) the Utility Owner is not cooperating (the foregoing clauses (a) through (e) 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 Developer to obtain the cooperation of the Utility Owner or resolve the dispute; however, 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 obligation to cooperate and TxDOT elects in its sole discretion not to exercise those rights, then TxDOT shall assign those rights to Developer upon Developer's request; however, such assignment shall be without any representation or warranty as to either the assignability or the enforceability of such rights. Developer shall reimburse TxDOT for TxDOT’s Recoverable Costs in connection with providing such assistance to Developer. Any assistance TxDOT provides shall not relieve Developer of its sole responsibility for 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 7.5.7.2 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. 7.5.7.3 If TxDOT objects in writing to a request for assistance pursuant to Section 7.5.7.1, based on Developer’s failure to satisfy one or more of the conditions to assistance described in Sections 7.5.7.2(a), (b) and (c), 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. If TxDOT objects in writing to a request for assistance pursuant to Section 7.5.7.1 based on Developer’s failure to satisfy one or both of the conditions to assistance described in Sections 7.5.7.2(d) and (e), then Developer shall take such action as Developer deems advisable during the next 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 Developer succeeds in obtaining the Utility Owner’s cooperation or in otherwise resolving the dispute or until TxDOT determines, based on evidence Developer presents, that the conditions to assistance have been satisfied. Developer shall have the right to submit the question of the reasonableness of TxDOT’s determination for resolution according to the 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 7.5.7.4, 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.

Failure of Utility Owners to Cooperate. 7.5.7.1 Developer 6.8.4.1. DB Contractor shall use diligent best efforts to obtain the cooperation of each Utility Owner as necessary for the Utility AdjustmentsAdjustment. Developer DB Contractor shall notify TxDOT immediately if (a) Developer DB Contractor is unable (or anticipates that it will be unable), after diligent efforts, to reachbe 7.5.7.2 6.8.4.2. If Developer DB Contractor requests TxDOT's ’s assistance pursuant to Section 7.5.7.16.8.4.1, Developer DB Contractor shall provide evidence reasonably satisfactory to TxDOT that that: (a) the subject Utility Adjustment is necessary, (b) the time for completion of the Utility Adjustment in the Facility Project Schedule was, in its inception, a reasonable amount of time for completion of such work, (c) Developer’s position in the dispute is otherwise reasonable, (d) Developer DB Contractor has made diligent efforts to obtain the Utility Owner’s cooperation, and (ed) the Utility Owner is not cooperating (the foregoing clauses items (a) through (ed) 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 Developer 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 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 Developer DB Contractor upon Developer's DB Contractor’s request; provided further, however, that such assignment shall be without any representation or warranty as to either the assignability or the enforceability of such rights. Developer DB Contractor shall reimburse TxDOT for TxDOT’s Recoverable Costs in connection with providing such assistance to DeveloperDB Contractor. Any assistance provided by TxDOT provides shall not relieve Developer 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 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 7.5.7.2 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 correct6.8.4. 7.5.7.3 6.8.4.3. If TxDOT objects in writing to a request for assistance pursuant to Section 7.5.7.16.8.4.1, based on DeveloperDB Contractor’s failure to satisfy one or more both of the conditions to assistance described in Sections 7.5.7.2(a), Section 6.8.4.2 (ba) and (cb), then Developer DB Contractor 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. If TxDOT objects in writing to a request for assistance pursuant to Section 7.5.7.1 6.8.4.1 based on DeveloperDB Contractor’s failure to satisfy one or both of the conditions to assistance described in Sections 7.5.7.2(d6.8.4.2 (c) and (ed), then Developer DB Contractor shall take such action as Developer DB Contractor deems advisable during the next ten 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 Developer DB Contractor succeeds in obtaining the Utility Owner’s cooperation or in otherwise resolving the dispute or until TxDOT determines, based on evidence Developer DB Contractor presents, that the conditions to assistance have been satisfied. Developer DB Contractor shall have the right to submit the question of the reasonableness of TxDOT’s determination for through the dispute resolution according to the Dispute Resolution Proceduresprocess described in Section 19. 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 7.5.7.4, 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.

Failure of Utility Owners to Cooperate. 7.5.7.1 Developer shall use diligent efforts to obtain the cooperation of each Utility Owner as necessary for Utility Adjustments. Developer shall notify TxDOT immediately if (a) Developer is unable (or anticipates that it will be unable), after diligent efforts, to reachreach agreement with a 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 7.5.7.2 If Developer requests TxDOT's assistance pursuant to Section 7.5.7.1, 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 Facility Schedule was, in its inception, a reasonable amount of time for completion of such work, (c) Developer’s position in the dispute is otherwise reasonable, (d) Developer has made diligent efforts to obtain the Utility Owner’s cooperation, and (e) the Utility Owner is not cooperating (the foregoing clauses (a) through (e) 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 Developer to obtain the cooperation of the Utility Owner or resolve the dispute; however, 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 obligation to cooperate and TxDOT elects in its sole discretion not to exercise those rights, then TxDOT shall assign those rights to Developer upon Developer's request; however, such assignment shall be without any representation or warranty as to either the assignability or the enforceability of such rights. Developer shall reimburse TxDOT for TxDOT’s Recoverable Costs in connection with providing such assistance to Developer. Any assistance TxDOT provides shall not relieve Developer of its sole responsibility for 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 7.5.7.2 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 Practicelaw, 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. 7.5.7.3 If TxDOT objects in writing to a request for assistance pursuant to Section 7.5.7.1, based on Developer’s failure to satisfy one or more of the conditions to assistance described in Sections 7.5.7.2(a), (b) and (c), 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. If TxDOT objects in writing to a request for assistance pursuant to Section 7.5.7.1 based on Developer’s failure to satisfy one or both of the conditions to assistance described in Sections 7.5.7.2(d) and (e), then Developer shall take such action as Developer deems advisable during the next 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 Developer succeeds in obtaining the Utility Owner’s cooperation or in otherwise resolving the dispute or until TxDOT determines, based on evidence Developer presents, that the conditions to assistance have been satisfied. Developer shall have the right to submit the question of the reasonableness of TxDOT’s determination for resolution according to the 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 7.5.7.4, 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.,

Failure of Utility Owners to Cooperate. 7.5.7.1 7.4.9.1 Developer shall use diligent efforts to obtain the cooperation of each Utility Owner as necessary for Utility Adjustments. . 7.4.9.2 Developer shall notify TxDOT immediately if Authority promptly if: (a) 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 Xxxxxxxxx's diligent effortsefforts to obtain such Utility Owner's cooperation or to otherwise resolve such dispute, (each, a “Notice of Utility Failure to reachCooperate”). 7.5.7.2 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 (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 Developer requests TxDOTAuthority's assistance pursuant to Section 7.5.7.1a Notice of Utility Failure to Cooperate, 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 Facility Baseline Project Schedule was, in its inceptionas of the Effective Date, a reasonable amount of time for completion of such work, Work; (c) Developer’s position in the dispute is otherwise reasonable, (d) 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 (ed) the Utility Owner is not cooperating cooperating, (the foregoing clauses clause (a) through clause (e) are referred to herein as d), 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 shall take Authority will either accept or reject any such reasonable steps as may be requested by Developer to obtain the cooperation of the Utility Owner or resolve the dispute; however, 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 discretionrequest for assistance from Developer. If TxDOT holds contractual rights that might be used to enforce the Utility Owner's obligation to cooperate and TxDOT elects Authority rejects, in its sole discretion not to exercise those rightswriting, then TxDOT shall assign those rights to Developer upon Developer's request; however, such assignment shall be without any representation or warranty as to either the assignability or the enforceability of such rights. Developer shall reimburse TxDOT for TxDOT’s Recoverable Costs in connection with providing such assistance to Developer. Any assistance TxDOT provides shall not relieve Developer of its sole responsibility for 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 7.5.7.2 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. 7.5.7.3 If TxDOT objects in writing to a request for assistance pursuant received under PA Section 7.4.9.3 (Failure of Utility Owners to Section 7.5.7.1Cooperate), based on Developer’s 's failure to satisfy one or more of the conditions Conditions to assistance Assistance described in in: (a) PA Sections 7.5.7.2(a), 7.4.9.5(a) (bFailure of Utility Owners to Cooperate) and through 7.4.9.5(b) (cFailure 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. If TxDOT objects in writing ; or (b) PA Sections 7.4.9.5(c) (Failure of Utility Owners to a request for assistance pursuant to Section 7.5.7.1 based on Developer’s failure to satisfy one or both of the conditions to assistance described in Sections 7.5.7.2(dCooperate) and 7.4.9.5(d) (eFailure of Utility Owners to Cooperate), then Developer shall take such action as Developer deems advisable during the next ten days (10) Business Days in order to obtain the Utility Owner’s 's cooperation and shall then have the right to submit another request for assistance on the same subject matter. Notwithstanding . 7.4.9.7 Once Developer has satisfied the foregoingConditions to Assistance, no resubmittal will be accepted unless all TxDOT objections have been addressed Authority shall within twenty (20) Business Days take such reasonable steps as 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 however, that neither Authority nor GDOT shall have any obligation to prosecute eminent domain or other legal proceedings, or to exercise any other remedy available to them under Applicable Law (except to the preceding two sentences. This process extent Authority is otherwise required to do so 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 it believes to be followed until Developer succeeds in obtaining 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 MOU; or (vi) GDOT or Authority’s existing policy (including the GDOT UAM, however, excluding any policies to the extent inconsistent with the express obligations of Authority under this Project Agreement); or (b) refrain from taking a position concurring with that of a Utility Owner’s cooperation or in otherwise resolving the dispute or until TxDOT determines, based on evidence Developer presents, if Authority believes that the conditions position to assistance have been satisfied. Developer shall have the right to submit the question of the reasonableness of TxDOT’s determination for resolution according to the Dispute Resolution Proceduresbe correct. 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 7.5.7.4, 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.