Common use of No Agreement as to Amount of Termination Settlement Clause in Contracts

No Agreement as to Amount of Termination Settlement. If Maintenance Contractor and TxDOT fail to agree upon either all or some portion of the amount to be paid Maintenance Contractor by reason of a Termination for Convenience pursuant to this Section 14, the amount payable shall be determined by TxDOT in accordance with the following, but without duplication of any items or of any amounts agreed upon in accordance with Section 14.6: 14.7.1 To the extent not previously paid, TxDOT will pay Maintenance Contractor the sum of the following amounts for Maintenance Services performed prior to the effective date of the Notice of Termination for Convenience or Notice of Partial Termination for Convenience: (a) Maintenance Contractor’s actual reasonable out-of-pocket cost, without profit, and including equipment costs only to the extent permitted under the CMA Documents for all Maintenance Services performed but not yet paid by TxDOT as of the effective date of the termination for convenience, including mobilization, demobilization, work in progress and work done to secure the applicable portion of the Project for termination, including reasonable overhead and accounting for any refunds payable with respect to insurance premiums, deposits or similar items, as established to TxDOT’s satisfaction. In determining the reasonable cost, deductions will be made for the cost of materials, supplies and equipment to be retained, at TxDOT’s sole option, by Maintenance Contractor, amounts realized by the sale of such items, and for other appropriate credits against the cost of the Maintenance Services, including those deductions that would be permitted in connection with Final Payment under this Capital Maintenance Agreement. When, in the opinion of TxDOT’s Authorized Representative, the cost of a contract item of Maintenance Services is excessively high due to costs incurred to remedy or replace Nonconforming Work, the reasonable cost to be allowed will be the estimated reasonable cost of performing that Maintenance Service in compliance with the requirements of the CMA Documents and the excessive actual cost shall be disallowed. (b) The cost of settling and paying reasonable claims arising out of the termination of Maintenance Services under Subcontracts as provided in Section 14.3(f), exclusive of the amounts paid or payable on account of supplies or materials delivered or services furnished by the Subcontractor prior to the effective date of the Notice of Termination for Convenience or Notice of Partial Termination for Convenience, which amounts shall be included in the cost on account of which payment is made under clause (a) above. (c) The reasonable out-of-pocket cost (including reasonable overhead) of the preservation and protection of property incurred pursuant to Section 14.3(i) and any other reasonable out-of-pocket cost (including overhead) incidental to termination of the Maintenance Services under this Capital Maintenance Agreement, including the reasonable cost to Maintenance Contractor of handling material returned to the Supplier, delivered to TxDOT or otherwise disposed of as directed by TxDOT, and including a reasonable allowance for Maintenance Contractor's administrative costs in determining the amount payable due to termination of this Capital Maintenance Agreement. 14.7.2 Maintenance Contractor acknowledges and agrees that it shall not be entitled to any compensation in excess of the value of the Maintenance Services performed (determined as provided in Section 14.7.1) plus its settlement costs, and that items such as lost or anticipated profits, unabsorbed overhead and opportunity costs shall not be recoverable by it upon termination of this Capital Maintenance Agreement. The total amount to be paid to Maintenance Contractor, exclusive of costs described in Sections 14.7.1(b) and (c), may not exceed the total Maintenance Price for the applicable Maintenance Term, less the amount of payments previously made. Furthermore, in the event that any refund is payable with respect to insurance or bond premiums, deposits or other items which were previously passed through to TxDOT by Maintenance Contractor, such refund shall be paid directly to TxDOT or otherwise credited to TxDOT. Except for normal spoilage, and except to the extent that TxDOT will have otherwise expressly assumed the risk of loss, there will be excluded from the amounts payable to Maintenance Contractor under Section 14.7.1, the fair value, as determined by TxDOT, of equipment, machinery, materials, supplies and property which is destroyed, lost, stolen, or damaged so as to become undeliverable to TxDOT, or sold pursuant to Section 14.3(j). Information contained in the EPDs may be a factor in determining the value of the Maintenance Services terminated. Upon determination of the amount of the termination payment, this Capital Maintenance Agreement shall be amended to reflect the agreed termination payment, Maintenance Contractor shall be paid the agreed amount, and the Maintenance Price shall be reduced to reflect the reduced scope of Maintenance Services. 14.7.3 If a termination hereunder is partial, Maintenance Contractor may file a proposal with TxDOT for an equitable adjustment of the Maintenance Price for the continued portion of this Capital Maintenance Agreement. Any proposal by Maintenance Contractor for an equitable adjustment under this Section 14.7.3 shall be requested within 90 days from the effective date of termination unless extended in writing by the TxDOT. The amount of any such adjustment as may be agreed upon shall be set forth in an amendment to this Capital Maintenance Agreement.

No Agreement as to Amount of Termination Settlement. If Maintenance Contractor and TxDOT fail to agree upon either all or some portion of the amount to be paid Maintenance Contractor by reason of a Termination for Convenience pursuant to this Section 1414.1, the amount payable shall be determined by TxDOT in accordance with the following, but without duplication of any items or of any amounts agreed upon in accordance with Section 14.6: 14.7.1 To the extent not previously paid, TxDOT will pay Maintenance Contractor the sum of the following amounts for Maintenance Services performed prior to the effective date of the Notice of Termination for Convenience or Notice of Partial Termination for Convenience, subject to the limitations and deductions under Sections 14.7.2 and 14.8: (a) Maintenance Contractor’s actual reasonable out-of-pocket cost, without profit, and including equipment costs only to the extent permitted under the CMA COMA Documents for (i) all Maintenance Services performed but not yet paid by TxDOT as of the effective date of the termination Notice of Termination for convenienceConvenience or Notice of Partial Termination for Convenience, including mobilization, demobilization, work in progress and (ii) demobilization and work done to secure the applicable portion of the Project for termination, including reasonable overhead and accounting for any refunds payable with respect to insurance premiums, deposits or similar items, as established to TxDOT’s satisfaction. In determining the reasonable cost, deductions will be made for the cost of materials, supplies and equipment to be retained, at TxDOT’s sole option, by Maintenance Contractor, amounts realized by the sale of such items, and for other appropriate credits against the cost of the Maintenance Services, including those deductions that would be permitted in connection with Final Payment under this Capital Comprehensive Maintenance Agreement. When, in the opinion of TxDOT’s Authorized Representative, the cost of a contract item of Maintenance Services is excessively high due to costs incurred to remedy or replace Nonconforming Work, the reasonable cost to be allowed will be the estimated reasonable cost of performing that Maintenance Service in compliance with the requirements of the CMA COMA Documents and the excessive actual cost shall be disallowed. (b) The cost of settling and paying reasonable claims arising out of the termination of Maintenance Services under Subcontracts as provided in Section 14.3(f), without profit and exclusive of the amounts paid or payable on account of supplies or materials delivered or services furnished by the Subcontractor prior to the effective date of the Notice of Termination for Convenience or Notice of Partial Termination for Convenience, which amounts shall be included in the cost on account of which payment is made under clause (a) above. (c) The reasonable out-of-pocket cost (including reasonable overhead) of the preservation and protection of property incurred pursuant to Section 14.3(i) and any other reasonable out-of-pocket cost (including overhead) incidental to termination of the Maintenance Services under this Capital Comprehensive Maintenance Agreement, including the reasonable cost to Maintenance Contractor of handling material returned to the Supplier, delivered to TxDOT or otherwise disposed of as directed by TxDOT, and including a reasonable allowance for Maintenance Contractor's administrative costs in determining the amount payable due to termination of this Capital Comprehensive Maintenance Agreement. 14.7.2 Maintenance Contractor acknowledges and agrees that it shall not be entitled to any compensation in excess of the value of the Maintenance Services performed (determined as provided in Section 14.7.1) plus its settlement costs, and that or recovery for items such as lost or anticipated profits, unabsorbed overhead and opportunity costs shall not be recoverable by it of Maintenance Contractor or its Subcontractors upon termination of this Capital Comprehensive Maintenance Agreement. The total amount to be paid to Maintenance Contractor, exclusive of costs described in Sections 14.7.1(b) and (c)settlement costs, may shall not exceed the total Maintenance Price for the applicable Maintenance Term, less the amount of payments previously mademade to Maintenance Contractor during such Maintenance Term and less the portions of the Maintenance Price related to Maintenance Services not terminated. Furthermore, in the event that any refund is payable with respect to insurance or bond premiums, deposits or other items which were previously passed through to TxDOT by Maintenance Contractor, such refund shall be paid directly to TxDOT or otherwise credited to TxDOT. Except for normal spoilage, and except to the extent that TxDOT will have otherwise expressly assumed the risk of loss, there will be excluded from the amounts payable to Maintenance Contractor under Section 14.7.1, the fair value, as determined by TxDOT, of equipment, machinery, materials, supplies and property which is destroyed, lost, stolen, or damaged so as to become undeliverable to TxDOT, or sold pursuant to Section 14.3(j). Information contained in the EPDs may be a factor in determining the value of the Maintenance Services terminated. Upon determination of the amount of the termination payment, this Capital Comprehensive Maintenance Agreement shall be amended to reflect the agreed termination payment, Maintenance Contractor shall be paid the agreed amount, and the Maintenance Price shall be reduced to reflect the reduced scope of Maintenance Services. 14.7.3 If a termination hereunder is partial, Maintenance Contractor may file a proposal with TxDOT for an equitable adjustment of the Maintenance Price for the continued portion of this Capital Comprehensive Maintenance Agreement. Any proposal by Maintenance Contractor for an equitable adjustment under this Section 14.7.3 shall be requested within 90 days from the effective date of termination unless extended in writing by the TxDOT. The amount of any such adjustment as may be agreed upon shall be set forth in an amendment to this Capital Comprehensive Maintenance Agreement.

No Agreement as to Amount of Termination Settlement. If Maintenance Contractor and TxDOT fail to agree upon either all or some portion of the amount to be paid Maintenance Contractor by reason of a Termination for Convenience pursuant to this Section 14, the amount payable shall be determined by TxDOT in accordance with the following, but without duplication of any items or of any amounts agreed upon in accordance with Section 14.6: 14.7.1 To the extent not previously paid, TxDOT will pay Maintenance Contractor the sum of the following amounts for Maintenance Services performed prior to the effective date of the Notice of Termination for Convenience or Notice of Partial Termination for Convenience: (a) Maintenance Contractor’s actual reasonable out-of-pocket cost, without profit, and including equipment costs only to the extent permitted under the CMA Documents for all Maintenance Services performed but not yet paid by TxDOT as of the effective date of the termination for convenience, including mobilization, demobilization, work in progress and work done to secure the applicable portion of the Project for termination, including reasonable overhead and accounting for any refunds payable with respect to insurance premiums, deposits or similar items, as established to TxDOT’s satisfaction. In determining the reasonable cost, deductions will be made for the cost of materials, supplies and equipment to be retained, at TxDOT’s sole option, by Maintenance Contractor, amounts realized by the sale of such items, and for other appropriate credits against the cost of the Maintenance Services, including those deductions that would be permitted in connection with Final Payment under this Capital Maintenance Agreement. When, in the opinion of TxDOT’s Authorized Representative, the cost of a contract item of Maintenance Services is excessively high due to costs incurred to remedy or replace Nonconforming Work, the reasonable cost to be allowed will be the estimated reasonable cost of performing that Maintenance Service in compliance with the requirements of the CMA Documents and the excessive actual cost shall be disallowed. (b) The cost of settling and paying reasonable claims arising out of the termination of Maintenance Services under Subcontracts as provided in Section 14.3(f), exclusive of the amounts paid or payable on account of supplies or materials delivered or services furnished by the Subcontractor prior to the effective date of the Notice of Termination for Convenience or Notice of Partial Termination for Convenience, which amounts shall be included in the cost on account of which payment is made under clause (a) above. (c) The reasonable out-of-pocket cost (including reasonable overhead) of the preservation and protection of property incurred pursuant to Section 14.3(i) and any other reasonable out-of-pocket cost (including overhead) incidental to termination of the Maintenance Services under this Capital Maintenance Agreement, including the reasonable cost to Maintenance Contractor of handling material returned to the Supplier, delivered to TxDOT or otherwise disposed of as directed by TxDOT, and including a reasonable allowance for Maintenance Contractor's administrative costs in determining the amount payable due to termination of this Capital Maintenance Agreement.to 14.7.2 Maintenance Contractor acknowledges and agrees that it shall not be entitled to any compensation in excess of the value of the Maintenance Services performed (determined as provided in Section 14.7.1) plus its settlement costs, and that items such as lost or anticipated profits, unabsorbed overhead and opportunity costs shall not be recoverable by it upon termination of this Capital Maintenance Agreement. The total amount to be paid to Maintenance Contractor, exclusive of costs described in Sections 14.7.1(b) and (c), may not exceed the total Maintenance Price for the applicable Maintenance Term, less the amount of payments previously made. Furthermore, in the event that any refund is payable with respect to insurance or bond premiums, deposits or other items which were previously passed through to TxDOT by Maintenance Contractor, such refund shall be paid directly to TxDOT or otherwise credited to TxDOT. Except for normal spoilage, and except to the extent that TxDOT will have otherwise expressly assumed the risk of loss, there will be excluded from the amounts payable to Maintenance Contractor under Section 14.7.1, the fair value, as determined by TxDOT, of equipment, machinery, materials, supplies and property which is destroyed, lost, stolen, or damaged so as to become undeliverable to TxDOT, or sold pursuant to Section 14.3(j). Information contained in the EPDs may be a factor in determining the value of the Maintenance Services terminated. Upon determination of the amount of the termination payment, this Capital Maintenance Agreement shall be amended to reflect the agreed termination payment, Maintenance Contractor shall be paid the agreed amount, and the Maintenance Price shall be reduced to reflect the reduced scope of Maintenance Services. 14.7.3 If a termination hereunder is partial, Maintenance Contractor may file a proposal with TxDOT for an equitable adjustment of the Maintenance Price for the continued portion of this Capital Maintenance Agreement. Any proposal by Maintenance Contractor for an equitable adjustment under this Section 14.7.3 shall be requested within 90 days from the effective date of termination unless extended in writing by the TxDOT. The amount of any such adjustment as may be agreed upon shall be set forth in an amendment to this Capital Maintenance Agreement.

No Agreement as to Amount of Termination Settlement. If Maintenance DB Contractor and TxDOT fail to agree upon either all or some portion of the amount to be paid Maintenance DB Contractor by reason of a Termination for Convenience pursuant to this Section 1415.1, the amount payable (exclusive of interest charges) shall be determined by TxDOT in accordance with the Texas Department of Transportation RFP SH 71 Toll Lanes Project 66 Design-Build Agreement March 5, 2014 following, but without duplication of any items or of any amounts agreed upon in accordance with Section 14.615.4: 14.7.1 To the extent not previously paid, 15.5.1 TxDOT will pay Maintenance DB Contractor the sum of the following amounts for Maintenance Services Work performed prior to the effective date of the Notice of Termination for Convenience or Notice of Partial Termination for Convenience: (a) Maintenance DB Contractor’s actual reasonable out-of-pocket cost, without profit, and including equipment costs only to the extent permitted under the CMA Documents by Section 13.6.3 for all Maintenance Services performed but not yet paid by TxDOT as of the effective date of the termination for convenienceWork performed, including mobilization, demobilization, work in progress and work done to secure the applicable portion of the Project for termination, including reasonable overhead and accounting for any refunds payable with respect to insurance premiums, deposits or similar items, as established to TxDOT’s satisfaction. In determining the reasonable cost, deductions will be made for the cost of materials, supplies and equipment to be retained, at TxDOT’s sole option, retained by Maintenance DB Contractor, amounts realized by the sale of such items, and for other appropriate credits against the cost of the Maintenance ServicesWork, including those deductions that would be permitted in connection with Final Payment under this Capital Maintenance Agreement. When, in the opinion of TxDOT’s Authorized Representative, the cost of a contract item of Maintenance Services is excessively high due to costs incurred to remedy or replace Nonconforming Work, the reasonable cost to be allowed will be the estimated reasonable cost of performing that Maintenance Service in compliance with the requirements of the CMA Documents and the excessive actual cost shall be disallowedPayment. (b) A sum, as profit on clause (a) above, determined by TxDOT to be fair and reasonable; provided DB Contractor establishes to TxDOT’s satisfaction that it is reasonably probable that DB Contractor would have made a profit had the DBA been completed and provided further, that the profit allowed shall in no event exceed 4 percent of the cost; (c) The cost of settling and paying reasonable claims arising out of the termination of Maintenance Services Work under Subcontracts and Utility Agreements as provided in Section 14.3(f)15.2.6, exclusive of the amounts paid or payable on account of supplies or materials delivered or services furnished by the Subcontractor prior to the effective date of the Notice of Termination for Convenience or Notice of Partial Termination for ConvenienceConvenience of Work under this DBA, which amounts shall be included in the cost on account of which payment is made under clause (a) above. (cd) The reasonable out-of-pocket cost (including reasonable overhead) of the preservation and protection of property incurred pursuant to Section 14.3(i) 15.2.10 and any other reasonable out-of-pocket cost (including overhead) incidental to termination of the Maintenance Services Work under this Capital Maintenance AgreementDBA, including the reasonable cost to Maintenance DB Contractor of handling material returned to the Supplier, delivered to TxDOT or otherwise disposed of as directed by TxDOT, and including a reasonable allowance for Maintenance DB Contractor's administrative costs in determining the amount payable due to termination of this Capital Maintenance AgreementDBA. 14.7.2 Maintenance Contractor acknowledges and agrees that it shall not be entitled to any compensation in excess of the value of the Maintenance Services performed (determined as provided in Section 14.7.1) plus its settlement costs, and that items such as lost or anticipated profits, unabsorbed overhead and opportunity costs shall not be recoverable by it upon termination of this Capital Maintenance Agreement. 15.5.2 The total amount to be paid to Maintenance DB Contractor, exclusive of costs described in Sections 14.7.1(b15.5.1(b) and (c), may not exceed the total Maintenance Price for the applicable Maintenance Term, less the amount of payments previously made. Furthermore, in the event that any refund is payable with respect to insurance or bond premiums, deposits or other items which were previously passed through to TxDOT by Maintenance DB Contractor, such refund shall be paid directly to TxDOT or otherwise credited to TxDOT. Except for normal spoilage, and except to the extent that TxDOT will have otherwise expressly assumed the risk of loss, there will be excluded from the amounts payable to Maintenance DB Contractor under Section 14.7.115.5.1, the fair value, as determined by TxDOT, of equipment, machinery, materials, supplies and property which is destroyed, lost, stolen, or damaged so as to become undeliverable to TxDOT, or sold pursuant to Section 14.3(j)15.2.11. Information contained in the EPDs may be a factor in determining the value of the Maintenance Services Work terminated. Upon determination of the amount of the termination payment, this Capital Maintenance Agreement DBA shall be amended to reflect the agreed termination payment, Maintenance DB Contractor shall be paid the agreed amount, and the Maintenance Price shall be reduced to reflect the reduced scope Texas Department of Maintenance Services.Transportation SH 71 Toll Lanes Project March 5, 2014 67 RFP Design-Build Agreement 14.7.3 15.5.3 If a termination hereunder is partial, Maintenance DB Contractor may file a proposal with TxDOT for an equitable adjustment of the Maintenance Price for the continued portion of this Capital Maintenance Agreement. Any proposal by Maintenance Contractor for an equitable adjustment under this Section 14.7.3 shall be requested within 90 days from the effective date of termination unless extended in writing by the TxDOTDBA. The amount of any such adjustment as may be agreed upon shall be set forth in an amendment to this Capital Maintenance AgreementDBA.

No Agreement as to Amount of Termination Settlement. If Maintenance Contractor and TxDOT fail to agree upon either all or some portion of the amount to be paid Maintenance Contractor by reason of a Termination for Convenience pursuant to this Section 14, the amount payable shall be determined by TxDOT in accordance with the following, but without duplication of any items or of any amounts agreed upon in accordance with Section 14.6: 14.7.1 To the extent not previously paid, TxDOT will pay Maintenance Contractor the sum of the following amounts for Maintenance Services performed prior to the effective date of the Notice of Termination for Convenience or Notice of Partial Termination for Convenience: (a) Maintenance Contractor’s actual reasonable out-of-pocket cost, without profit, and including equipment costs only to the extent permitted under the CMA COMA Documents for all Maintenance Services performed but not yet paid by TxDOT as of the effective date of the termination for convenience, including mobilization, demobilization, work in progress and work done to secure the applicable portion of the Project for termination, including reasonable overhead and accounting for any refunds payable with respect to insurance premiums, deposits or similar items, as established to TxDOT’s satisfaction. In determining the reasonable cost, deductions will be made for the cost of materials, supplies and equipment to be retained, at TxDOT’s sole option, by Maintenance Contractor, amounts realized by the sale of such items, and for other appropriate credits against the cost of the Maintenance Services, including those deductions that would be permitted in connection with Final Payment under this Capital Comprehensive Maintenance Agreement. When, in the opinion of TxDOT’s Authorized Representative, the cost of a contract item of Maintenance Services is excessively high due to costs incurred to remedy or replace Nonconforming Work, the reasonable cost to be allowed will be the estimated reasonable cost of performing that Maintenance Service in compliance with the requirements of the CMA COMA Documents and the excessive actual cost shall be disallowed. (b) The cost of settling and paying reasonable claims arising out of the termination of Maintenance Services under Subcontracts as provided in Section 14.3(f), exclusive of the amounts paid or payable on account of supplies or materials delivered or services furnished by the Subcontractor prior to the effective date of the Notice of Termination for Convenience or Notice of Partial Termination for Convenience, which amounts shall be included in the cost on account of which payment is made under clause (a) above. (c) The reasonable out-of-pocket cost (including reasonable overhead) of the preservation and protection of property incurred pursuant to Section 14.3(i) and any other reasonable out-of-pocket cost (including overhead) incidental to termination of the Maintenance Services under this Capital Comprehensive Maintenance Agreement, including the reasonable cost to Maintenance Contractor of handling material returned to the Supplier, delivered to TxDOT or otherwise disposed of as directed by TxDOT, and including a reasonable allowance for Maintenance Contractor's administrative costs in determining the amount payable due to termination of this Capital Comprehensive Maintenance Agreement. 14.7.2 Maintenance Contractor acknowledges and agrees that it shall not be entitled to any compensation in excess of the value of the Maintenance Services performed (determined as provided in Section 14.7.1) plus its settlement costs, and that items such as lost or anticipated profits, unabsorbed overhead and opportunity costs shall not be recoverable by it upon termination of this Capital Comprehensive Maintenance Agreement. The total amount to be paid to Maintenance Contractor, exclusive of costs described in Sections 14.7.1(b) and (c), may not exceed the total Maintenance Price for the applicable Maintenance Term, less the amount of payments previously made. Furthermore, in the event that any refund is payable with respect to insurance or bond premiums, deposits or other items which were previously passed through to TxDOT by Maintenance Contractor, such refund shall be paid directly to TxDOT or otherwise credited to TxDOT. Except for normal spoilage, and except to the extent that TxDOT will have otherwise expressly assumed the risk of loss, there will be excluded from the amounts payable to Maintenance Contractor under Section 14.7.1, the fair value, as determined by TxDOT, of equipment, machinery, materials, supplies and property which is destroyed, lost, stolen, or damaged so as to become undeliverable to TxDOT, or sold pursuant to Section 14.3(j). Information contained in the EPDs may be a factor in determining the value of the Maintenance Services terminated. Upon determination of the amount of the termination payment, this Capital Comprehensive Maintenance Agreement shall be amended to reflect the agreed termination payment, Maintenance Contractor shall be paid the agreed amount, and the Maintenance Price shall be reduced to reflect the reduced scope of Maintenance Services. 14.7.3 If a termination hereunder is partial, Maintenance Contractor may file a proposal with TxDOT for an equitable adjustment of the Maintenance Price for the continued portion of this Capital Comprehensive Maintenance Agreement. Any proposal by Maintenance Contractor for an equitable adjustment under this Section 14.7.3 shall be requested within 90 days from the effective date of termination unless extended in writing by the TxDOT. The amount of any such adjustment as may be agreed upon shall be set forth in an amendment to this Capital Comprehensive Maintenance Agreement.

No Agreement as to Amount of Termination Settlement. If Maintenance DB Contractor and TxDOT fail to agree upon either all or some portion of the amount to be paid Maintenance DB Contractor by reason of a Termination for Convenience pursuant to this Section 1414.1, the amount payable shall be Texas Department of Transportation - 95 - Execution Version I-635 LBJ East Project Capital Maintenance Agreement determined by TxDOT in accordance with the following, but without duplication of any items or of any amounts agreed upon in accordance with Section 14.6: 14.7.1 To the extent not previously paid, TxDOT will pay Maintenance DB Contractor the sum of the following amounts for Maintenance Services performed prior to the effective date of the Notice of Termination for Convenience or Notice of Partial Termination for Convenience, subject to the limitations and deductions under Sections 14.7.2 and 14.8: (a) Maintenance DB Contractor’s actual reasonable out-of-pocket cost, without profit, and including equipment costs only to the extent permitted under the CMA Documents for (i) all Maintenance Services performed but not yet paid by TxDOT as of the effective date of the termination Notice of Termination for convenienceConvenience or Notice of Partial Termination for Convenience, including mobilization, demobilization, work in progress and (ii) demobilization and work done to secure the applicable portion of the Project for termination, including reasonable overhead and accounting for any refunds payable with respect to insurance premiums, deposits or similar items, as established to TxDOT’s satisfaction. In determining the reasonable cost, deductions will be made for the cost of materials, supplies and equipment to be retained, at TxDOT’s sole option, by Maintenance DB Contractor, amounts realized by the sale of such items, and for other appropriate credits against the cost of the Maintenance Services, including those deductions that would be permitted in connection with Final Payment under this Capital Maintenance AgreementCMA. When, in the opinion of TxDOT’s Authorized Representative, the cost of a contract item of Maintenance Services is excessively high due to costs incurred to remedy or replace Nonconforming Work, the reasonable cost to be allowed will be the estimated reasonable cost of performing that Maintenance Service in compliance with the requirements of the CMA Documents Documents, and the excessive actual cost shall be disallowed. (b) The cost of settling and paying reasonable claims arising out of the termination of Maintenance Services under Subcontracts as provided in Section 14.3(f), without profit and exclusive of the amounts paid or payable on account of supplies or materials delivered or services furnished by the Subcontractor prior to the effective date of the Notice of Termination for Convenience or Notice of Partial Termination for Convenience, which amounts shall be included in the cost on account of which payment is made under clause (a) above. (c) The reasonable out-of-pocket cost (including reasonable overhead) of the preservation and protection of property incurred pursuant to Section 14.3(i) and any other reasonable out-of-pocket cost (including overhead) incidental to termination of the Maintenance Services under this Capital Maintenance AgreementCMA, including the reasonable cost to Maintenance DB Contractor of handling material returned to the Supplier, delivered to TxDOT or otherwise disposed of as directed by TxDOT, and including a reasonable allowance for Maintenance DB Contractor's ’s administrative costs in determining the amount payable due to termination of this Capital Maintenance AgreementCMA. 14.7.2 Maintenance DB Contractor acknowledges and agrees that it shall not be entitled to any compensation in excess of the value of the Maintenance Services performed (determined as provided in Section 14.7.1) plus its settlement costs, and that or recovery for items such as lost or anticipated profits, unabsorbed overhead overhead, and opportunity costs shall not be recoverable by it of DB Contractor or its Subcontractors upon termination of this Capital Maintenance AgreementCMA. The total amount to be paid to Maintenance DB Contractor, exclusive of costs described in Sections 14.7.1(b) and (c)settlement costs, may shall not exceed the total Maintenance Price for the applicable Maintenance TermTerm in which the termination occurs, less the amount of payments previously mademade to DB Contractor during such Maintenance Term. In addition, any payments to DB Contractor during the Maintenance Period shall be reduced by the portions of the Maintenance Price related to Maintenance Services not terminated, if any. Furthermore, in the event that any refund is payable with respect to insurance or bond premiums, deposits or other items which that were previously passed through to TxDOT by Maintenance DB Contractor, such refund shall be paid directly to TxDOT or otherwise credited to TxDOT. Except for Texas Department of Transportation - 96 - Execution Version I-635 LBJ East Project Capital Maintenance Agreement normal spoilage, and except to the extent that TxDOT will have otherwise expressly assumed the risk of loss, there will be excluded from the amounts payable to Maintenance DB Contractor under Section 14.7.1, the fair value, as determined by TxDOT, of equipment, machinery, materials, supplies and property which that is destroyed, lost, stolen, or damaged so as to become undeliverable to TxDOT, or sold pursuant to Section 14.3(j). Information contained in the EPDs may be a factor in determining the value of the Maintenance Services terminated. Upon determination of the amount of the termination payment, this Capital Maintenance Agreement CMA shall be amended to reflect the agreed termination payment, Maintenance DB Contractor shall be paid the agreed amount, and the Maintenance Price shall be reduced to reflect the reduced scope of Maintenance Services.Maintenance 14.7.3 If a termination hereunder is partial, Maintenance DB Contractor may file a proposal with TxDOT for an equitable adjustment of the Maintenance Price for the continued portion of this Capital Maintenance AgreementCMA. Any proposal by Maintenance DB Contractor for an equitable adjustment under this Section 14.7.3 shall be requested within 90 days Days from the effective date of the partial termination unless extended in writing by the TxDOT. The amount of any such adjustment as may be agreed upon shall be set forth in an amendment to this Capital Maintenance AgreementCMA.

No Agreement as to Amount of Termination Settlement. If Maintenance Contractor and TxDOT fail to agree upon either all or some portion of the amount to be paid Maintenance Contractor by reason of a Termination for Convenience pursuant to this Section 1415, the amount payable shall be determined by TxDOT in accordance with the following, but without duplication of any items or of any amounts agreed upon in accordance with Section 14.615.6: 14.7.1 15.7.1 To the extent not previously paid, TxDOT will pay Maintenance Contractor the sum of the following amounts for Maintenance Services performed prior to the effective date of the Notice of Termination for Convenience or Notice of Partial Termination for Convenience: (a) Maintenance Contractor’s actual reasonable out-of-pocket cost, without profit, and including equipment costs only to the extent permitted under the CMA Documents for all Maintenance Services performed but not yet paid by TxDOT as of the effective date of the termination for convenienceperformed, including mobilization, demobilization, work in progress and work done to secure the applicable portion of the Project for termination, including reasonable overhead and accounting for any refunds payable with respect to insurance premiums, deposits or similar items, as established to TxDOT’s satisfaction. In determining the reasonable cost, deductions will be made for the cost of materials, supplies and equipment to be retained, at TxDOT’s sole option, retained by Maintenance Contractor, amounts realized by the sale of such items, and for other appropriate credits against the cost of the Maintenance Services, including those deductions that would be permitted in connection with Final Payment under this Capital Maintenance Agreement. When, in the opinion of TxDOT’s Authorized Representative, the cost of a contract item of Maintenance Services is excessively high due to costs incurred to remedy or replace Nonconforming Work, the reasonable cost to be allowed will be the estimated reasonable cost of performing that Maintenance Service Services in compliance with the requirements of the CMA Documents and the excessive actual cost shall be disallowed. (b) The cost of settling and paying reasonable claims arising out of the termination of Maintenance Services under Subcontracts as provided in Section 14.3(f15.3(f), exclusive of the amounts paid or payable on account of supplies or materials delivered or services furnished by the Subcontractor prior to the effective date of the Notice of Termination for Convenience or Notice of Partial Termination for Convenience, which amounts shall be included in the cost on account of which payment is made under clause (a) above. (c) The reasonable out-of-pocket cost (including reasonable overhead) of the preservation and protection of property incurred pursuant to Section 14.3(i15.3(i) and any other reasonable out-of-pocket cost (including overhead) incidental to termination of the Maintenance Services under this Capital Maintenance Agreement, including the reasonable cost to Maintenance Contractor of handling material returned to the Supplier, delivered to TxDOT or otherwise disposed of as directed by TxDOT, and including a reasonable allowance for Maintenance Contractor's administrative costs in determining the amount payable due to termination of this Capital Maintenance Agreement. 14.7.2 15.7.2 Maintenance Contractor acknowledges and agrees that it shall not be entitled to any compensation in excess of the value of the Maintenance Services performed (determined as provided in Section 14.7.115.7.1) plus its settlement costs, and that items such as lost or anticipated profits, unabsorbed overhead and opportunity costs shall not be recoverable by it upon termination of this Capital Maintenance Agreement. The total amount to be paid to Maintenance Contractor, exclusive of costs described in Sections 14.7.1(b15.7.1(b) and (c), may not exceed the total Maintenance Price for the applicable Maintenance Term, less the amount of payments previously made. Furthermore, in the event that any refund is payable with respect to insurance or bond premiums, deposits or other items which were previously passed through to TxDOT by Maintenance Contractor, such refund shall be paid directly to TxDOT or otherwise credited to TxDOT. Except for normal spoilage, and except to the extent that TxDOT will have otherwise expressly assumed the risk of loss, there will be excluded from the amounts payable to Maintenance Contractor under Section 14.7.115.7.1, the fair value, as determined by TxDOT, of equipment, machinery, materials, supplies and property which is destroyed, lost, stolen, or damaged so as to become undeliverable to TxDOT, or sold pursuant to Section 14.3(j15.3(j). Information contained in the EPDs may be a factor in determining the value of the Maintenance Services terminated. Upon determination of the amount of the termination payment, this Capital Maintenance Agreement shall be amended to reflect the agreed termination payment, Maintenance Contractor shall be paid the agreed amount, and the Maintenance Price shall be reduced to reflect the reduced scope of Maintenance Services. 14.7.3 15.7.3 If a termination hereunder is partial, Maintenance Contractor may file a proposal with TxDOT for an equitable adjustment of the Maintenance Price for the continued portion of this Capital Maintenance Agreement. Any proposal by Maintenance Contractor for an equitable adjustment under this Section 14.7.3 15.7.3 shall be requested within 90 days from the effective date of termination unless extended in writing by the TxDOT. The amount of any such adjustment as may be agreed upon shall be set forth in an amendment to this Capital Maintenance Agreement.

No Agreement as to Amount of Termination Settlement. If Maintenance Contractor and TxDOT fail to agree upon either all or some portion of the amount to be paid Maintenance Contractor by reason of a Termination for Convenience pursuant to this Section 14, 14 the amount payable shall be determined by TxDOT in accordance with the following, but without duplication of any items or of any amounts agreed upon in accordance with Section 14.6: 14.7.1 To the extent not previously paid, TxDOT will pay Maintenance Contractor the sum of the following amounts for Maintenance Services performed prior to the effective date of the Notice of Termination for Convenience or Notice of Partial Termination for Convenience: (a) Maintenance Contractor’s actual reasonable out-of-pocket cost, without profit, and including equipment costs only to the extent permitted under the CMA Documents for all Maintenance Services performed but not yet paid by TxDOT as of the effective date of the termination for convenience, including mobilization, demobilization, work in progress and work done to secure the applicable portion of Texas Department of Transportation Execution Version Horseshoe Project 95 Capital Maintenance Agreement the Project for termination, including reasonable overhead and accounting for any refunds payable with respect to insurance premiums, deposits or similar items, as established to TxDOT’s satisfaction. In determining the reasonable cost, deductions will be made for the cost of materials, supplies and equipment to be retained, at TxDOT’s sole option, by Maintenance Contractor, amounts realized by the sale of such items, and for other appropriate credits against the cost of the Maintenance Services, including those deductions that would be permitted in connection with Final Payment under this Capital Maintenance Agreement. When, in the opinion of TxDOT’s Authorized Representative, the cost of a contract item of Maintenance Services is excessively high due to costs incurred to remedy or replace Nonconforming Work, the reasonable cost to be allowed will be the estimated reasonable cost of performing that Maintenance Service in compliance with the requirements of the CMA Documents and the excessive actual cost shall be disallowed. (b) The cost of settling and paying reasonable claims arising out of the termination of Maintenance Services under Subcontracts as provided in Section 14.3(f), exclusive of the amounts paid or payable on account of supplies or materials delivered or services furnished by the Subcontractor prior to the effective date of the Notice of Termination for Convenience or Notice of Partial Termination for Convenience, which amounts shall be included in the cost on account of which payment is made under clause (a) above. (c) The reasonable out-of-pocket cost (including reasonable overhead) of the preservation and protection of property incurred pursuant to Section 14.3(i) and any other reasonable out-of-pocket cost (including overhead) incidental to termination of the Maintenance Services under this Capital Maintenance Agreement, including the reasonable cost to Maintenance Contractor of handling material returned to the Supplier, delivered to TxDOT or otherwise disposed of as directed by TxDOT, and including a reasonable allowance for Maintenance Contractor's administrative costs in determining the amount payable due to termination of this Capital Maintenance Agreement. 14.7.2 Maintenance Contractor acknowledges and agrees that it shall not be entitled to any compensation in excess of the value of the Maintenance Services performed (determined as provided in Section 14.7.1) plus its settlement costs, and that items such as lost or anticipated profits, unabsorbed overhead and opportunity costs shall not be recoverable by it upon termination of this Capital Maintenance Agreement. The total amount to be paid to Maintenance Contractor, exclusive of costs described in Sections 14.7.1(b) and (c), may not exceed the total Maintenance Price for the Texas Department of Transportation Execution Version Horseshoe Project 96 Capital Maintenance Agreement applicable Maintenance Term, less the amount of payments previously made. Furthermore, in the event that any refund is payable with respect to insurance or bond premiums, deposits or other items which were previously passed through to TxDOT by Maintenance Contractor, such refund shall be paid directly to TxDOT or otherwise credited to TxDOT. Except for normal spoilage, and except to the extent that TxDOT will have otherwise expressly assumed the risk of loss, there will be excluded from the amounts payable to Maintenance Contractor under Section 14.7.1, the fair value, as determined by TxDOT, of equipment, machinery, materials, supplies and property which is destroyed, lost, stolen, or damaged so as to become undeliverable to TxDOT, or sold pursuant to Section 14.3(j). Information contained in the EPDs may be a factor in determining the value of the Maintenance Services terminated. Upon determination of the amount of the termination payment, this Capital Maintenance Agreement shall be amended to reflect the agreed termination payment, Maintenance Contractor shall be paid the agreed amount, and the Maintenance Price shall be reduced to reflect the reduced scope of Maintenance Services. 14.7.3 If a termination hereunder is partial, Maintenance Contractor may file a proposal with TxDOT for an equitable adjustment of the Maintenance Price for the continued portion of this Capital Maintenance Agreement. Any proposal by Maintenance Contractor for an equitable adjustment under this Section 14.7.3 shall be requested within 90 days from the effective date of termination unless extended in writing by the TxDOT. The amount of any such adjustment as may be agreed upon shall be set forth in an amendment to this Capital Maintenance Agreement.

No Agreement as to Amount of Termination Settlement. If Maintenance DB Contractor and TxDOT fail to agree upon either all or some portion of the amount to be paid Maintenance DB Contractor by reason of a Termination for Convenience pursuant to this Section 1415.1, the amount payable (exclusive of interest charges) shall be determined by TxDOT in accordance with the following, but without duplication of any items or of any amounts agreed upon in accordance with Section 14.615.4: 14.7.1 To the extent not previously paid, 15.5.1 TxDOT will pay Maintenance DB Contractor the sum of the following amounts for Maintenance Services Work performed prior to the effective date of the Notice of Termination for Convenience or Notice of Partial Termination for Convenience: (a) Maintenance DB Contractor’s actual reasonable out-of-pocket cost, without profit, and including equipment costs only to the extent permitted under the CMA Documents by Section 13.6.3 for all Maintenance Services performed but not yet paid by TxDOT as of the effective date of the termination for convenienceWork performed, including mobilization, demobilization, work in progress and work done to secure the applicable portion of the Project for termination, including reasonable overhead and accounting for any refunds payable with respect to insurance premiums, deposits or similar items, as established to TxDOT’s satisfaction. In determining the reasonable cost, deductions will be made for the cost of materials, supplies and equipment to be retained, at TxDOT’s sole option, retained by Maintenance DB Contractor, amounts realized by the sale of such items, and for other appropriate credits against the cost of the Maintenance ServicesWork, including those deductions that would be permitted in connection with Final Payment under this Capital Maintenance Agreement. When, in the opinion of TxDOT’s Authorized Representative, the cost of a contract item of Maintenance Services is excessively high due to costs incurred to remedy or replace Nonconforming Work, the reasonable cost to be allowed will be the estimated reasonable cost of performing that Maintenance Service in compliance with the requirements of the CMA Documents and the excessive actual cost shall be disallowedPayment. (b) A sum, as profit on clause (a) above, determined by TxDOT to be fair and reasonable; provided DB Contractor establishes to TxDOT’s satisfaction that it is reasonably probable that DB Contractor would have made a profit had the DBA been completed and provided further, that the profit allowed shall in no event exceed 4 percent of the cost; (c) The cost of settling and paying reasonable claims arising out of the termination of Maintenance Services Work under Subcontracts and Utility Agreements as provided in Section 14.3(f)15.2.6, exclusive of the amounts paid or payable on account of supplies or materials delivered or services furnished by the Subcontractor prior to the effective date of the Notice of Termination for Convenience or Notice of Partial Termination for ConvenienceConvenience of Work under this DBA, which amounts shall be included in the cost on account of which payment is made under clause (a) above. (cd) The reasonable out-of-pocket cost (including reasonable overhead) of the preservation and protection of property incurred pursuant to Section 14.3(i) 15.2.10 and any other reasonable out-of-pocket cost (including overhead) incidental to termination of the Maintenance Services Work under this Capital Maintenance AgreementDBA, including the reasonable cost to Maintenance DB Contractor of handling material returned to the Supplier, delivered to TxDOT or otherwise disposed of as directed by TxDOT, and including a reasonable allowance for Maintenance DB Contractor's administrative costs in determining the amount payable due to termination of this Capital Maintenance AgreementDBA. 14.7.2 Maintenance Contractor acknowledges and agrees that it shall not be entitled to any compensation in excess of the value of the Maintenance Services performed (determined as provided in Section 14.7.1) plus its settlement costs, and that items such as lost or anticipated profits, unabsorbed overhead and opportunity costs shall not be recoverable by it upon termination of this Capital Maintenance Agreement. 15.5.2 The total amount to be paid to Maintenance DB Contractor, exclusive of costs described in Sections 14.7.1(b15.5.1(b) and (c), may not exceed the total Maintenance Price for the applicable Maintenance Term, less the amount of payments previously made. Furthermore, in the event that any refund is payable with respect to insurance or bond premiums, deposits or other items which were previously passed through to TxDOT by Maintenance DB Contractor, such refund shall be paid directly to TxDOT or otherwise credited to TxDOT. Except for normal spoilage, and except to the extent that TxDOT will have otherwise expressly assumed the risk of loss, there will be excluded from the amounts payable to Maintenance DB Contractor under Section 14.7.115.5.1, the fair value, as determined by TxDOT, of equipment, machinery, materials, supplies and property which is destroyed, lost, stolen, or damaged so as to become undeliverable to TxDOT, or sold pursuant to Section 14.3(j)15.2.11. Information contained in the EPDs may be a factor in determining the value of the Maintenance Services Work terminated. Upon determination of the amount of the termination payment, this Capital Maintenance Agreement DBA shall be amended to reflect the agreed termination payment, Maintenance DB Contractor shall be paid the agreed amount, and the Maintenance Price shall be reduced to reflect the reduced scope of Maintenance ServicesWork. 14.7.3 15.5.3 If a termination hereunder is partial, Maintenance DB Contractor may file a proposal with TxDOT for an equitable adjustment of the Maintenance Price for the continued portion of this Capital Maintenance Agreement. Any proposal by Maintenance Contractor for an equitable adjustment under this Section 14.7.3 shall be requested within 90 days from the effective date of termination unless extended in writing by the TxDOTDBA. The amount of any such adjustment as may be agreed upon shall be set forth in an amendment to this Capital Maintenance AgreementDBA.

No Agreement as to Amount of Termination Settlement. ‌ If Maintenance Contractor Fabricator and TxDOT fail to agree upon either all or some portion of the whole amount to be paid Maintenance Contractor Fabricator by reason of a Termination the termination of Work for Convenience convenience pursuant to this Section 14, the amount payable (exclusive of interest charges) shall be determined by TxDOT in accordance with the following, but without duplication of any items or of any amounts agreed upon in accordance with Section 14.612.3: 14.7.1 To the extent not previously paid, 12.4.1 TxDOT will pay Maintenance Contractor Fabricator the sum of the following amounts for Maintenance Services Work performed prior to the effective date of the Notice of Termination for Convenience or Notice of Partial Termination for Convenience: (a) Maintenance Contractor12.4.1.1 Fabricator’s actual reasonable out-of-pocket cost, without profit, and including equipment costs only to the extent permitted under the CMA Documents herein, for all Maintenance Services performed but not yet paid by TxDOT as of the effective date of the termination for convenience, including mobilization, demobilization, work in progress and work done to secure the applicable portion of the Project for terminationWork performed, including reasonable overhead and accounting for any refunds payable with respect to insurance premiums, deposits or similar items, as established to TxDOT’s satisfaction. In determining the reasonable cost, deductions will be made for the cost of materials, supplies and equipment materials to be retained, at TxDOT’s sole option, retained by Maintenance ContractorFabricator, amounts realized by the sale of such itemsmaterials, and for other appropriate credits against the cost of the Maintenance ServicesWork. Deductions will also be made, including those deductions that would be permitted in connection with Final Payment under this Capital Maintenance Agreement. when the contract is terminated as the result of a Force Majeure event, for the cost of materials damaged by the "occurrence." When, in the opinion of TxDOT’s Authorized Representativedesignated representative, the cost of a contract item of Maintenance Services Work is excessively high due to costs incurred to remedy or replace Nonconforming defective or rejected Work, the reasonable cost to be allowed will be the estimated reasonable cost of performing that Maintenance Service Work in compliance with the requirements of the CMA Contract Documents and the excessive actual cost shall be disallowed. (b) 12.4.1.2 A sum, as profit on the amounts specified in Section 12.4.1.1 above, determined by TxDOT to be fair and reasonable, but in no event to exceed 4% of the amount determined under Section 12.4.1.1; however, if it appears that Fabricator would have sustained a loss on the entire contract had it been completed, TxDOT shall allow no profit under this Section 12.4.1.2 and shall reduce the settlement to reflect the indicated rate of loss.; 12.4.1.3 The cost of settling and paying reasonable claims arising out of the termination of Maintenance Services Work under Subcontracts as provided in Section 14.3(f)12.2.6, exclusive of the amounts paid or payable on account of supplies or materials delivered or services furnished by the Subcontractor prior to the effective date of the Notice of Termination for Convenience or Notice of Partial Termination for ConvenienceConvenience of Work under the Agreement, which amounts shall be included in the cost on account of which payment is made under clause (a) Section 12.4.1.1 above.; (c) 12.4.1.4 The reasonable out-of-pocket cost (including reasonable overhead) of the preservation and protection of property incurred pursuant to Section 14.3(i) and any other reasonable out-of-pocket cost (including overhead) incidental to termination of Work under the Maintenance Services under this Capital Maintenance Agreement, including the reasonable cost to Maintenance Contractor Fabricator of handling material returned to the Suppliervendor, delivered to TxDOT or otherwise disposed of as directed by TxDOT, and including a reasonable allowance for Maintenance ContractorFabricator's administrative costs in determining the amount payable due to termination of this Capital Maintenance the Agreement. 14.7.2 Maintenance Contractor 12.4.2 Fabricator acknowledges and agrees that it shall not be entitled to any compensation in excess of the value of the Maintenance Services Work performed (determined as provided in Section 14.7.112.4.1) plus its settlement costs, and that items such as lost or anticipated profits, unabsorbed overhead and opportunity costs shall not be recoverable by it upon termination of this Capital Maintenance the Agreement. The total amount to be paid to Maintenance ContractorFabricator, exclusive of costs described in Sections 14.7.1(b) and (c), may not exceed the total Maintenance Price for the applicable Maintenance Term, less the amount of payments previously made. Furthermore, in the event that any refund is payable with respect to insurance or bond premiums, deposits or other items which were previously passed through to TxDOT by Maintenance Contractor, such refund shall be paid directly to TxDOT or otherwise credited to TxDOT. Except for normal spoilage, and except to the extent that TxDOT will have otherwise expressly assumed the risk of loss, there will be excluded from the amounts payable to Maintenance Contractor under Section 14.7.1, the fair value, as determined by TxDOT, of equipment, machinery, materials, supplies and property which is destroyed, lost, stolen, or damaged so as to become undeliverable to TxDOT, or sold pursuant to Section 14.3(j). Information contained in the EPDs may be a factor in determining the value of the Maintenance Services terminated. Upon determination of the amount of the termination payment, this Capital Maintenance Agreement shall be amended to reflect the agreed termination payment, Maintenance Contractor shall be paid the agreed amount, and the Maintenance Price shall be reduced to reflect the reduced scope of Maintenance Services12.4.1. 14.7.3 If a termination hereunder is partial, Maintenance Contractor may file a proposal with TxDOT for an equitable adjustment of the Maintenance Price for the continued portion of this Capital Maintenance Agreement. Any proposal by Maintenance Contractor for an equitable adjustment under this Section 14.7.3 shall be requested within 90 days from the effective date of termination unless extended in writing by the TxDOT. The amount of any such adjustment as may be agreed upon shall be set forth in an amendment to this Capital Maintenance Agreement.

No Agreement as to Amount of Termination Settlement. If Maintenance Contractor and TxDOT fail to agree upon either all or some portion of the amount to be paid Maintenance Contractor by reason of a Termination for Convenience pursuant to this Section 14, the amount payable shall be determined by TxDOT in accordance with the following, but without duplication of any items or of any amounts agreed upon in accordance with Section 14.6: 14.7.1 To the extent not previously paid, TxDOT will pay Maintenance Contractor the sum of the following amounts for Maintenance Services performed prior to the effective date of the Notice of Termination for Convenience or Notice of Partial Termination for Convenience: (a) Maintenance Contractor’s actual reasonable out-of-pocket cost, without profit, and including equipment costs only to the extent permitted under the CMA Documents for all Maintenance Services performed but not yet paid by TxDOT as of the effective date of the termination for convenience, including mobilization, demobilization, work in progress and work done to secure the applicable portion of the Project for termination, including reasonable overhead and accounting for any refunds payable with respect to insurance premiums, deposits or similar items, as established to TxDOT’s satisfaction. In determining the reasonable cost, deductions will be made for the cost of materials, supplies and equipment to be retained, at TxDOT’s sole option, by Maintenance Contractor, amounts realized by the sale of such items, and for other appropriate credits against the cost of the Maintenance Services, including those deductions that would be permitted in connection with Final Payment under this Capital Maintenance AgreementCMA. When, in the opinion of TxDOT’s Authorized Representative, the cost of a contract item of Maintenance Services is excessively high due to costs incurred to remedy or replace Nonconforming Work, the reasonable cost to be allowed will be the estimated reasonable cost of performing that Maintenance Service in compliance with the requirements of the CMA Documents and the excessive actual cost shall be disallowed. (b) The cost of settling and paying reasonable claims Claims arising out of the termination of Maintenance Services under Subcontracts as provided in Section 14.3(f), exclusive of the amounts paid or payable on account of supplies or materials delivered or services furnished by the Subcontractor prior to the effective date of the Notice of Termination for Convenience or Notice of Partial Termination for Convenience, which amounts shall be included in the cost on account of which payment is made under clause (a) above.clause (c) The reasonable out-of-pocket cost (including reasonable overhead) of the preservation and protection of property incurred pursuant to Section 14.3(i) and any other reasonable out-of-pocket cost (including overhead) incidental to termination of the Maintenance Services under this Capital Maintenance Agreement, including the reasonable cost to Maintenance Contractor of handling material returned to the Supplier, delivered to TxDOT or otherwise disposed of as directed by TxDOT, and including a reasonable allowance for Maintenance Contractor's administrative costs in determining the amount payable due to termination of this Capital Maintenance Agreement.Section 14.7.2 Maintenance Contractor acknowledges and agrees that it shall not be entitled to any compensation in excess of the value of the Maintenance Services performed (determined as provided in Section 14.7.1) plus its settlement costs, and that items such as lost or anticipated profits, unabsorbed overhead and opportunity costs shall not be recoverable by it upon termination of this Capital Maintenance AgreementCMA. The total amount to be paid to Maintenance Contractor, exclusive of costs described in Sections 14.7.1(b) and (c), may not exceed the total Maintenance Price for the applicable Maintenance Term, less the amount of payments previously made. Furthermore, in the event that any refund is payable with respect to insurance or bond premiums, deposits or other items which were previously passed through to TxDOT by Maintenance Contractor, such refund shall be paid directly to TxDOT or otherwise credited to TxDOT. Except for normal spoilage, and except to the extent that TxDOT will have otherwise expressly assumed the risk of loss, there will be excluded from the amounts payable to Maintenance Contractor under Section 14.7.1, the fair value, as determined by TxDOT, of equipment, machinery, materials, supplies and property which is destroyed, lost, stolen, or damaged so as to become undeliverable to TxDOT, or sold pursuant to Section 14.3(j). Information contained in the EPDs may be a factor in determining the value of the Maintenance Services terminated. Upon determination of the amount of the termination payment, this Capital Maintenance Agreement CMA shall be amended to reflect the agreed termination payment, Maintenance Contractor shall be paid the agreed amount, and the Maintenance Price shall be reduced to reflect the reduced scope of Maintenance Services. 14.7.3 If a termination hereunder is partial, Maintenance Contractor may file a proposal with TxDOT for an equitable adjustment of the Maintenance Price for the continued portion of this Capital Maintenance AgreementCMA. Any proposal by Maintenance Contractor for an equitable adjustment under this Section 14.7.3 shall be requested within 90 days from the effective date of termination unless extended in writing by the TxDOT. The amount of any such adjustment as may be agreed upon shall be set forth in an amendment to this Capital Maintenance AgreementCMA.

No Agreement as to Amount of Termination Settlement. If Maintenance DB Contractor and TxDOT fail to agree upon either all or some portion of the amount to be paid Maintenance DB Contractor by reason of a Termination for Convenience pursuant to this Section 1415.1, the amount payable (exclusive of interest charges) shall be determined by TxDOT in accordance with the following, but without duplication of any items or of any amounts agreed upon in accordance with Section 14.615.4: 14.7.1 To the extent not previously paid, 15.5.1 TxDOT will pay Maintenance DB Contractor the sum of the following amounts for Maintenance Services Work performed prior to the effective date of the Notice of Termination for Convenience or Notice of Partial Termination for Convenience: (a) Maintenance DB Contractor’s actual reasonable out-of-pocket cost, without profit, and including equipment costs only to the extent permitted under the CMA Documents by Section 13.6.3 for all Maintenance Services performed but not yet paid by TxDOT as of the effective date of the termination for convenienceWork performed, including mobilization, demobilization, work in progress and work done to secure the applicable portion of the Project for termination, including reasonable overhead and accounting for any refunds payable with respect to insurance premiums, deposits or similar items, as established to TxDOT’s satisfaction. In determining the reasonable cost, deductions will be made for the cost of materials, supplies and equipment to be retained, at TxDOT’s sole option, retained by Maintenance DB Contractor, amounts realized by the sale of such items, and for other appropriate credits against the cost of the Maintenance ServicesWork, including those deductions that would be permitted in connection with Final Payment under this Capital Maintenance Agreement. When, in the opinion of TxDOT’s Authorized Representative, the cost of a contract item of Maintenance Services is excessively high due to costs incurred to remedy or replace Nonconforming Work, the reasonable cost to be allowed will be the estimated reasonable cost of performing that Maintenance Service in compliance with the requirements of the CMA Documents and the excessive actual cost shall be disallowedPayment. (b) A sum, as profit on clause (a) above, determined by TxDOT to be fair and reasonable; provided DB Contractor establishes to TxDOT’s satisfaction that it is reasonably probable that DB Contractor would have made a profit had the DBC been completed and provided further, that the profit allowed shall in no event exceed 4 percent of the cost; (c) The cost of settling and paying reasonable claims arising out of the termination of Maintenance Services Work under Subcontracts and Utility Agreements as provided in Section 14.3(f)15.2.6, exclusive of the amounts paid or payable on account of supplies or materials delivered or services furnished by the Subcontractor prior to the effective date of the Notice of Termination for Convenience or Notice of Partial Termination for ConvenienceConvenience of Work under this DBC, which amounts shall be included in the cost on account of which payment is made under clause (a) above. (cd) The reasonable out-of-pocket cost (including reasonable overhead) of the preservation and protection of property incurred pursuant to Section 14.3(i) 15.2.10 and any other reasonable out-of-pocket cost (including overhead) incidental to termination of the Maintenance Services Work under this Capital Maintenance AgreementDBC, including the reasonable cost to Maintenance DB Contractor of handling material returned to the Supplier, delivered to TxDOT or otherwise disposed of as directed by TxDOT, and including a reasonable allowance for Maintenance DB Contractor's administrative costs in determining the amount payable due to termination of this Capital Maintenance AgreementDBC. 14.7.2 Maintenance Contractor acknowledges and agrees that it shall not be entitled to any compensation in excess of the value of the Maintenance Services performed (determined as provided in Section 14.7.1) plus its settlement costs, and that items such as lost or anticipated profits, unabsorbed overhead and opportunity costs shall not be recoverable by it upon termination of this Capital Maintenance Agreement. 15.5.2 The total amount to be paid to Maintenance DB Contractor, exclusive of costs described in Sections 14.7.1(b15.5.1(b) and (c), may not exceed the total Maintenance Price for the applicable Maintenance Term, less the amount of payments previously made. Furthermore, in the event that any refund is payable with respect to insurance or bond premiums, deposits or other items which were previously passed through to TxDOT by Maintenance DB Contractor, such refund shall be paid directly to TxDOT or otherwise credited to TxDOT. Except for normal spoilage, and except to the extent that TxDOT will have otherwise expressly assumed the risk of loss, there will be excluded from the amounts payable to Maintenance DB Contractor under Section 14.7.115.5.1, the fair value, as determined by TxDOT, of equipment, machinery, materials, supplies and property which is destroyed, lost, stolen, or damaged so as to become undeliverable to TxDOT, or sold pursuant to Section 14.3(j)15.2.11. Information contained in the EPDs may be a factor in determining the value of the Maintenance Services Work terminated. Upon determination of the amount of the termination payment, this Capital Maintenance Agreement DBC shall be amended to reflect the agreed termination payment, Maintenance DB Contractor shall be paid the agreed amount, and the Maintenance Price shall be reduced to reflect the reduced scope of Maintenance ServicesWork. 14.7.3 15.5.3 If a termination hereunder is partial, Maintenance DB Contractor may file a proposal with TxDOT for an equitable adjustment of the Maintenance Price for the continued portion of this Capital Maintenance Agreement. Any proposal by Maintenance Contractor for an equitable adjustment under this Section 14.7.3 shall be requested within 90 days from the effective date of termination unless extended in writing by the TxDOTDBC. The amount of any such adjustment as may be agreed upon shall be set forth in an amendment to this Capital Maintenance AgreementDBC.